did not contend for such a broad proposition... His submission was more restricted.... That the health professionals ’ duty to exercise due professional skill and care is owed only to the child ’ s primary carers, usually the parents, as well as the child himself. ...","80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...","81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent ’ s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...","...","85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest ’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘ quite right ’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.","86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ...\""],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"6. The applicants, United Kingdom nationals and husband and wife, were born in 1972 and 1976 respectively, and live in Oldham.\",\n \"7. The applicants had a daughter M. born on 24 July 1998.\",\n \"8. On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M.\",\n \"9. An X - ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal, interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this.\",\n \"10. The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties.\",\n \"11. On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns about the family.\",\n \"12. On 29 September 1998 the police interviewed the parents with an interpreter present.\",\n \"13. On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called.\",\n \"14. On 14 October 1998, in light of the doctor ’ s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998.\",\n \"15. On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact.\",\n \"16. The parents obtained legal advice and jointly instructed an expert, with M. ’ s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage.\",\n \"17. On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home.\",\n \"18. On 29 March 1999, M. sustained a second injury in her aunt ’ s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury.\",\n \"19. After discharge from hospital, M. returned home in April 1999.\",\n \"20. On 17 June 1999, the care order was discharged and M. returned to her parents. In her report to the court dated 14 June 1999, M. ’ s guardian ad litem noted, inter alia, that this had been a particularly perplexing case, in which a diagnosis of non-accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information, essentially positive, which had emerged about the family. She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury.\",\n \"21. The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours had spread to Pakistan that the mother had been put in prison. The parents ’ relationship with M. and with the grandmother were severely affected and disrupted as a result of events.\",\n \"22. On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician.\",\n \"23. On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed.\",\n \"24. Leave to appeal to the Court of Appeal was granted. Two other cases raising similar issues were considered at the same time.\",\n \"25. On 31 July 2003, concerning the parents ’ claims in the three cases, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments ( Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001 ‑ V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents ’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result.\",\n \"26. After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first- instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia :\",\n \"\\\"70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’ s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent ’ s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury.\",\n \"71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interests of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.\",\n \"72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child ’ s history.\",\n \"73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.\",\n \"74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ...\",\n \"75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection...\",\n \"76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents ’ complaints related to the periods for which they remained under suspicion. In each case the parent ’ s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors ’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.\",\n \"77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith...\",\n \"78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect...\",\n \"79... did not contend for such a broad proposition... His submission was more restricted.... That the health professionals ’ duty to exercise due professional skill and care is owed only to the child ’ s primary carers, usually the parents, as well as the child himself. ...\",\n \"80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...\",\n \"81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent ’ s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...\",\n \"...\",\n \"85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest ’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘ quite right ’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.\",\n \"86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ...\\\"\"\n]"},"law_source":{"kind":"list like","value":["THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","27. The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights. Article 8 of the Convention provides as relevant:","“1. Everyone has the right to respect for his private and family life, ....","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. The parties ’ observations","1. The applicants","28. The applicants submitted that they had had no choice but to consent to the interim care order. They argued that it was not a matter of a mere error of medical judgment but a concatenation of events which led to inappropriate social and legal consequences flowing from an erroneous diagnosis, without any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he discounted all other possibilities and his care was deemed substandard by their expert in the domestic negligence proceedings, Dr Conway. Further the applicants were excluded from all discourse in the matter; A. K. was provided with no translator during her conversations with nursing staff and Dr Blumenthal, and she was given no opportunity to correct mistaken factual assumptions. No weight was given to the fact that they had no prior history with social services or that the health visitor had had no concerns with M. ’ s care, her view not even being sought initially and later being discounted. They pointed out that the failure to order other tests to exclude OI highlighted a complete reluctance to consider other possible causes of the fracture and the possibility of a skin biopsy was never raised at all, excluding them from the decision-making process. They were never given an effective opportunity to deal with allegations, referring to the case of T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). They drew attention to the fact that Dr Paterson had become a totally discredited expert in OI, receiving adverse comments from judges in child care proceedings and being struck off in 2004 for professional misconduct. Finally, the notes of the triage nurse contributed to highly negative assumptions being made about A. K. in particular and about the way in which the fracture occurred, influencing not only Dr Blumenthal ’ s diagnosis but also Professor Carty ’ s. Dr Conway was never asked about OI but about Dr Blumenthal ’ s standard of professional care in which his own credentials were impeccable.","29. The applicants emphasised that, while M. was returned home in April 1999, the public care was not revoked until June 1999, so that their rights were affected for nine months and suspicions, anxieties and restrictions lingered on. They emphasised that their much-loved three-month-old first-born baby had been taken away from them and they had been accused of deliberately injuring her. A. K. could no longer be with her 24 hours a day, or throughout the night, as would have happened if she had not been removed and the parents had to endure a daily wrench of separation.","30. Furthermore, the applicants argued that if the interferences did not reach the threshold of severity under Article 3, they disclosed serious interferences with their moral and physical integrity and damage to their reputation, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect.","2. The Government","31. The Government accepted that the removal of M. from home interfered with family life but submitted that the interference was justified as being fully in accordance with domestic law and necessary to protect M. They pointed out that the separation was less than nine months (only from October 1998 to April 1999), that she lived with her aunt not far from her parents ’ home and saw her parents almost as much as when she was at home due to supervised, but unlimited, access. They considered that the social services had acted reasonably and in M. ’ s best interests in responding to concerns of medical professionals. The possibility of OI was considered from the outset but there was no medical evidence at that stage to support such a diagnosis, an independent expert also finding no bone abnormalities or radiological or clinical evidence of OI. When the second fractures occurred, there was prompt reconsideration of the diagnosis and a third opinion sought which also indicated that no-one could have made a diagnosis of OI in the first instance, the child having a confused history, with lots of discrepancies and an essentially-normal skeletal survey. That expert also cautioned against the utility of urine and other biochemical tests in arriving at a confirmed OI diagnosis. The Government emphasised the extreme difficulty in diagnosing mild OI in a very young infant such as M., requiring a trajectory and progression of the condition over a period of time. They drew attention to the view of the guardian ad litem of M. who stressed that a diagnosis of OI or any other bone disorder could not have been made at the time of the first injury. They argued that the errors in the notes made by the triage nurse at the outset were not determinative or influential. While the applicants placed reliance on their expert in the domestic proceedings, the Government pointed out that he was a consultant paediatrician without any expertise in childhood bone diseases, in particular OI. They rejected as without substance other allegations of breaches of Article 8 concerning physical and moral integrity and damage to reputation and private life.","The Court ’ s assessment","1. Concerning family life","32. It is not disputed in the present case that the proceedings instituted as regarded M., and the interim care order which resulted in M. being placed away from the applicants, constituted an interference with the applicants ’ right to respect for their family life within the meaning of the first paragraph of Article 8. It must therefore be determined whether this interference was justified under the second paragraph, namely whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.","33. The Court finds no reason to doubt that the interference complied with the first two criteria, as conforming with domestic law requirements and pursuing the legitimate aim of protecting the rights of others, namely the child who had suffered injury.","34. As to whether the interference was \"necessary in a democratic society”, the Court ’ s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference were fair and afforded due respect to the interests safeguarded by Article 8. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, amongst many authorities, T.P. and K.M. , cited above, § § 71-72 ).","35. In the present case, the Court notes that the applicants have made various complaints about the conduct of various professionals involved in the case, essentially referring to an accumulation of errors and alleging a lack of safeguards in place to prevent the erroneous diagnosis that the injuries were caused non-accidentally (see paragraph 28 above).","36. The Court would re-iterate that mistaken judgments or assessments by professionals do not per se render child- care measures incompatible with the requirements of Article 8. The authorities, medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis- à -vis members of their families are proved, retrospectively, to have been misguided. In the present case, it is incontrovertible that M., a baby of only a few months, suffered a serious and unexplained fracture. It is not disputed that OI is a very rare condition and also difficult to diagnose in very small infants. The Court does not consider that the social or medical authorities can be faulted for not reaching an immediate diagnosis of OI or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents. No doubt it would have been better if the triage nurse had taken more accurate notes as to the family ’ s account of what had happened and trouble had been taken to obtain interpretation in medical staff ’ s conversations with A. K. who did not understand English. However, it is not apparent that this would have dissipated concerns at this early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, it may be noted that, even when official interpretation was available, in court, the testimony of A. K. was not found to be convincing.","37. The applicants ’ complaints very much amount to criticising the way in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt. Nonetheless, it must also be noted that, while an interim care order was issued with a view to protecting M., steps were also taken to place the baby within her extended family and in close proximity to the applicants ’ own home so that they could easily and frequently visit. And crucially, as soon as a further fracture occurred outwith the applicants ’ care, further tests were quickly pursued and within weeks M. was returned home.","38. The Court further notes that M. was removed from the applicants ’ care for a period of some seven months. It is not impressed by the applicants ’ complaint that the care order was not removed for some further two months. This was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice. As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of OI which considered that there was no fault in not reaching this conclusion at the time of the first injury. The applicants emphasised that one of these doctors was later totally discredited. However, the Court is not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion. It is satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M. and which gave due account and procedural protection to the applicants ’ interests, and without any lack of the appropriate expedition.","39. There has, accordingly, been no violation of Article 8 of the Convention in this regard.","2. Concerning other aspects of Article 8","40. The applicants also claimed that the events complained of above invaded their physical and moral integrity and damaged their reputation in violation of Article 8 of the Convention.","Having regard to its conclusions above as to the lawfulness and necessity of the measures, the Court considers that in the circumstances no separate issue arises.","II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","41. The applicants complained that they had no effective remedy for their above complaints, invoking Article 13 of the Convention which provides:","“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”","A. The parties ’ submissions","42. The applicants argued that Article 13 was applicable and that none of the remedies referred to by the Government would have satisfied that provision. As regarded the HRA 1998, it was expressly because the events took place before it came into force that they could not avail themselves of that legislation. It was difficult for them to understand why recognising a duty of care in relation to events before 2 October 2000 would have had such unacceptable consequences for child protection since it was available afterwards. They maintained their view that in tort public policy concerns have meant that a wide de facto immunity from suit was allowed to public bodies. At the time the tort of negligence was the only remedy in national law capable of determining the substance of their Convention complaints but the House of Lords chose not to recognise that they fell within its ambit.","43. The Government accepted that there was an arguable claim and notwithstanding the variety of remedies available (local authority social service and NHS complaints procedures, the local authority and NHS ombudsmen, judicial review of the relevant authorities and appeals against any court orders) they acknowledged that they were arguably obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could have been proved to have resulted from any violation of Article 8. They submitted that as from 2 October 2000 such a remedy was provided by the HRA 1998 (sections 7 and 8) although this did not apply to the acts in issue in these proceedings. They pointed out though that there was no prior obligation to incorporate the Convention in domestic law or to incorporate it with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit.","B. The Court ’ s assessment","44. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 ‑ 97, § 53 ).","45. It is common ground in this case that the applicants ’ complaints about the interference with their family life through the care measures were arguable. The Court considers that the applicants should have had available to them a means of claiming that the local authority ’ s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage ( T.P. and K.M ., cited above, §§ 108 -109 ). Such redress was not available at the relevant time. Consequently, there has been a violation of Article 13 of the Convention in this regard.","III. APPLICATION OF ARTICLE 41 OF THE CONVENTION","46. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","47. The applicants claimed 15,000 pounds sterling (GBP) each for non-pecuniary damages as regarded their complaints under Article 8 to reflect the separation of nine months from the child, the public suspicion and criticism suffered by AK, the mental distress at the continuing fear of separation from their child, the concern that their innocence has never publicly been vindicated and that details of the unfounded allegations may remain in local authority files. They also claimed GBP 4,214 each for the violation of Article 13 referring to the lack of any effective remedy for their concerns which required them to spend three and a half years in domestic proceedings and then to bring their case here.","48. The Government claimed that these claims were excessive pointing out that only GBP 10,000 was awarded in TP and KM v. the United Kingdom ( cited above ), where there had been separation of a year, whereas there had been a shorter period of separation and the child in the present case had in fact been placed in the care of an aunt who lived nearby. An award of GBP 10,000 jointly to the applicants was sufficient for any violation of Article 8 and no further award necessary for any breach of Article 13.","49. The Court recalls that it has only found a violation under Article 13 of the Convention. Not doubting that the applicants did in that regard suffer frustration, stress and uncertainty which would not be redressed by a finding of a violation alone, and having regard to awards in similar cases, the Court, making its assessment on an equitable basis, awards the applicants 1 0 ,000 EUR jointly.","B. Costs and expenses","50. The applicants claimed legal costs and expenses as regarded their representation by counsel and solicitor in the amount of GBP 32,803.43, which sum took into account the award of legal aid from the Council of Europe and included value-added tax. They also claimed GBP 11,230 for advice and work done by the AIRE Centre.","51. The Government considered that the number of hours claimed (130 by the solicitors and 117 by AIRE Centre) were clearly excessive and contained an significant element of duplication. They considered an award of some GBP 10,000, inclusive of VAT should be awarded.","52. The Court recalls that the procedure was in writing, that no further submissions on the merits were put in after admissibility and that the applicants were only successful on one complaint. It also concurs with the Government that considerable duplication is disclosed by the claims put in for work by solicitor, counsel and experts from the AIRE Centre. Having regard also to the finding of only one violation, it awards EUR 18 ,000 for legal costs plus any tax that may be payable by the applicants.","C. Default interest","53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"27. The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights. Article 8 of the Convention provides as relevant:\",\n \"“1. Everyone has the right to respect for his private and family life, ....\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. The parties ’ observations\",\n \"1. The applicants\",\n \"28. The applicants submitted that they had had no choice but to consent to the interim care order. They argued that it was not a matter of a mere error of medical judgment but a concatenation of events which led to inappropriate social and legal consequences flowing from an erroneous diagnosis, without any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he discounted all other possibilities and his care was deemed substandard by their expert in the domestic negligence proceedings, Dr Conway. Further the applicants were excluded from all discourse in the matter; A. K. was provided with no translator during her conversations with nursing staff and Dr Blumenthal, and she was given no opportunity to correct mistaken factual assumptions. No weight was given to the fact that they had no prior history with social services or that the health visitor had had no concerns with M. ’ s care, her view not even being sought initially and later being discounted. They pointed out that the failure to order other tests to exclude OI highlighted a complete reluctance to consider other possible causes of the fracture and the possibility of a skin biopsy was never raised at all, excluding them from the decision-making process. They were never given an effective opportunity to deal with allegations, referring to the case of T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). They drew attention to the fact that Dr Paterson had become a totally discredited expert in OI, receiving adverse comments from judges in child care proceedings and being struck off in 2004 for professional misconduct. Finally, the notes of the triage nurse contributed to highly negative assumptions being made about A. K. in particular and about the way in which the fracture occurred, influencing not only Dr Blumenthal ’ s diagnosis but also Professor Carty ’ s. Dr Conway was never asked about OI but about Dr Blumenthal ’ s standard of professional care in which his own credentials were impeccable.\",\n \"29. The applicants emphasised that, while M. was returned home in April 1999, the public care was not revoked until June 1999, so that their rights were affected for nine months and suspicions, anxieties and restrictions lingered on. They emphasised that their much-loved three-month-old first-born baby had been taken away from them and they had been accused of deliberately injuring her. A. K. could no longer be with her 24 hours a day, or throughout the night, as would have happened if she had not been removed and the parents had to endure a daily wrench of separation.\",\n \"30. Furthermore, the applicants argued that if the interferences did not reach the threshold of severity under Article 3, they disclosed serious interferences with their moral and physical integrity and damage to their reputation, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect.\",\n \"2. The Government\",\n \"31. The Government accepted that the removal of M. from home interfered with family life but submitted that the interference was justified as being fully in accordance with domestic law and necessary to protect M. They pointed out that the separation was less than nine months (only from October 1998 to April 1999), that she lived with her aunt not far from her parents ’ home and saw her parents almost as much as when she was at home due to supervised, but unlimited, access. They considered that the social services had acted reasonably and in M. ’ s best interests in responding to concerns of medical professionals. The possibility of OI was considered from the outset but there was no medical evidence at that stage to support such a diagnosis, an independent expert also finding no bone abnormalities or radiological or clinical evidence of OI. When the second fractures occurred, there was prompt reconsideration of the diagnosis and a third opinion sought which also indicated that no-one could have made a diagnosis of OI in the first instance, the child having a confused history, with lots of discrepancies and an essentially-normal skeletal survey. That expert also cautioned against the utility of urine and other biochemical tests in arriving at a confirmed OI diagnosis. The Government emphasised the extreme difficulty in diagnosing mild OI in a very young infant such as M., requiring a trajectory and progression of the condition over a period of time. They drew attention to the view of the guardian ad litem of M. who stressed that a diagnosis of OI or any other bone disorder could not have been made at the time of the first injury. They argued that the errors in the notes made by the triage nurse at the outset were not determinative or influential. While the applicants placed reliance on their expert in the domestic proceedings, the Government pointed out that he was a consultant paediatrician without any expertise in childhood bone diseases, in particular OI. They rejected as without substance other allegations of breaches of Article 8 concerning physical and moral integrity and damage to reputation and private life.\",\n \"The Court ’ s assessment\",\n \"1. Concerning family life\",\n \"32. It is not disputed in the present case that the proceedings instituted as regarded M., and the interim care order which resulted in M. being placed away from the applicants, constituted an interference with the applicants ’ right to respect for their family life within the meaning of the first paragraph of Article 8. It must therefore be determined whether this interference was justified under the second paragraph, namely whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.\",\n \"33. The Court finds no reason to doubt that the interference complied with the first two criteria, as conforming with domestic law requirements and pursuing the legitimate aim of protecting the rights of others, namely the child who had suffered injury.\",\n \"34. As to whether the interference was \\\"necessary in a democratic society”, the Court ’ s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference were fair and afforded due respect to the interests safeguarded by Article 8. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, amongst many authorities, T.P. and K.M. , cited above, § § 71-72 ).\",\n \"35. In the present case, the Court notes that the applicants have made various complaints about the conduct of various professionals involved in the case, essentially referring to an accumulation of errors and alleging a lack of safeguards in place to prevent the erroneous diagnosis that the injuries were caused non-accidentally (see paragraph 28 above).\",\n \"36. The Court would re-iterate that mistaken judgments or assessments by professionals do not per se render child- care measures incompatible with the requirements of Article 8. The authorities, medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis- à -vis members of their families are proved, retrospectively, to have been misguided. In the present case, it is incontrovertible that M., a baby of only a few months, suffered a serious and unexplained fracture. It is not disputed that OI is a very rare condition and also difficult to diagnose in very small infants. The Court does not consider that the social or medical authorities can be faulted for not reaching an immediate diagnosis of OI or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents. No doubt it would have been better if the triage nurse had taken more accurate notes as to the family ’ s account of what had happened and trouble had been taken to obtain interpretation in medical staff ’ s conversations with A. K. who did not understand English. However, it is not apparent that this would have dissipated concerns at this early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, it may be noted that, even when official interpretation was available, in court, the testimony of A. K. was not found to be convincing.\",\n \"37. The applicants ’ complaints very much amount to criticising the way in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt. Nonetheless, it must also be noted that, while an interim care order was issued with a view to protecting M., steps were also taken to place the baby within her extended family and in close proximity to the applicants ’ own home so that they could easily and frequently visit. And crucially, as soon as a further fracture occurred outwith the applicants ’ care, further tests were quickly pursued and within weeks M. was returned home.\",\n \"38. The Court further notes that M. was removed from the applicants ’ care for a period of some seven months. It is not impressed by the applicants ’ complaint that the care order was not removed for some further two months. This was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice. As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of OI which considered that there was no fault in not reaching this conclusion at the time of the first injury. The applicants emphasised that one of these doctors was later totally discredited. However, the Court is not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion. It is satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M. and which gave due account and procedural protection to the applicants ’ interests, and without any lack of the appropriate expedition.\",\n \"39. There has, accordingly, been no violation of Article 8 of the Convention in this regard.\",\n \"2. Concerning other aspects of Article 8\",\n \"40. The applicants also claimed that the events complained of above invaded their physical and moral integrity and damaged their reputation in violation of Article 8 of the Convention.\",\n \"Having regard to its conclusions above as to the lawfulness and necessity of the measures, the Court considers that in the circumstances no separate issue arises.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\",\n \"41. The applicants complained that they had no effective remedy for their above complaints, invoking Article 13 of the Convention which provides:\",\n \"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\",\n \"A. The parties ’ submissions\",\n \"42. The applicants argued that Article 13 was applicable and that none of the remedies referred to by the Government would have satisfied that provision. As regarded the HRA 1998, it was expressly because the events took place before it came into force that they could not avail themselves of that legislation. It was difficult for them to understand why recognising a duty of care in relation to events before 2 October 2000 would have had such unacceptable consequences for child protection since it was available afterwards. They maintained their view that in tort public policy concerns have meant that a wide de facto immunity from suit was allowed to public bodies. At the time the tort of negligence was the only remedy in national law capable of determining the substance of their Convention complaints but the House of Lords chose not to recognise that they fell within its ambit.\",\n \"43. The Government accepted that there was an arguable claim and notwithstanding the variety of remedies available (local authority social service and NHS complaints procedures, the local authority and NHS ombudsmen, judicial review of the relevant authorities and appeals against any court orders) they acknowledged that they were arguably obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could have been proved to have resulted from any violation of Article 8. They submitted that as from 2 October 2000 such a remedy was provided by the HRA 1998 (sections 7 and 8) although this did not apply to the acts in issue in these proceedings. They pointed out though that there was no prior obligation to incorporate the Convention in domestic law or to incorporate it with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit.\",\n \"B. The Court ’ s assessment\",\n \"44. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 ‑ 97, § 53 ).\",\n \"45. It is common ground in this case that the applicants ’ complaints about the interference with their family life through the care measures were arguable. The Court considers that the applicants should have had available to them a means of claiming that the local authority ’ s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage ( T.P. and K.M ., cited above, §§ 108 -109 ). Such redress was not available at the relevant time. Consequently, there has been a violation of Article 13 of the Convention in this regard.\",\n \"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"46. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"47. The applicants claimed 15,000 pounds sterling (GBP) each for non-pecuniary damages as regarded their complaints under Article 8 to reflect the separation of nine months from the child, the public suspicion and criticism suffered by AK, the mental distress at the continuing fear of separation from their child, the concern that their innocence has never publicly been vindicated and that details of the unfounded allegations may remain in local authority files. They also claimed GBP 4,214 each for the violation of Article 13 referring to the lack of any effective remedy for their concerns which required them to spend three and a half years in domestic proceedings and then to bring their case here.\",\n \"48. The Government claimed that these claims were excessive pointing out that only GBP 10,000 was awarded in TP and KM v. the United Kingdom ( cited above ), where there had been separation of a year, whereas there had been a shorter period of separation and the child in the present case had in fact been placed in the care of an aunt who lived nearby. An award of GBP 10,000 jointly to the applicants was sufficient for any violation of Article 8 and no further award necessary for any breach of Article 13.\",\n \"49. The Court recalls that it has only found a violation under Article 13 of the Convention. Not doubting that the applicants did in that regard suffer frustration, stress and uncertainty which would not be redressed by a finding of a violation alone, and having regard to awards in similar cases, the Court, making its assessment on an equitable basis, awards the applicants 1 0 ,000 EUR jointly.\",\n \"B. Costs and expenses\",\n \"50. The applicants claimed legal costs and expenses as regarded their representation by counsel and solicitor in the amount of GBP 32,803.43, which sum took into account the award of legal aid from the Council of Europe and included value-added tax. They also claimed GBP 11,230 for advice and work done by the AIRE Centre.\",\n \"51. The Government considered that the number of hours claimed (130 by the solicitors and 117 by AIRE Centre) were clearly excessive and contained an significant element of duplication. They considered an award of some GBP 10,000, inclusive of VAT should be awarded.\",\n \"52. The Court recalls that the procedure was in writing, that no further submissions on the merits were put in after admissibility and that the applicants were only successful on one complaint. It also concurs with the Government that considerable duplication is disclosed by the claims put in for work by solicitor, counsel and experts from the AIRE Centre. Having regard also to the finding of only one violation, it awards EUR 18 ,000 for legal costs plus any tax that may be payable by the applicants.\",\n \"C. Default interest\",\n \"53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":94,"cells":{"id":{"kind":"number","value":95,"string":"95"},"case_name":{"kind":"string","value":"Saviny v. Ukraine"},"judgement_date":{"kind":"string","value":"18 December 2008"},"facts_summary":{"kind":"string","value":"This case concerned the placement of children in public care on ground that their parents, who have both been blind since childhood, had failed to provide them with adequate care and housing. The domestic authorities based their decision on a finding that the applicants’ lack of financial means and personal qualities endangered their children’s life, health and moral upbringing."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect of private and family life) of the Convention, doubting the adequacy of the evidence on which the authorities had based their finding that the children’s living conditions had in fact been dangerous to their life and health. It observed in particular that the judicial authorities had only examined those difficulties which could have been overcome by targeted financial and social assistance and effective counselling and had not apparently analysed in any depth the extent to which the applicants’ irremediable incapacity to provide requisite care had been responsible for the inadequacies of their children’s upbringing."},"title":{"kind":"string","value":"Parental Rights"},"subtitle":{"kind":"string","value":"Taking of children into care"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.","A. The applicants’ family circumstances and living conditions","6. Both applicants have been blind since childhood.","7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.","8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.","9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.","10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).","11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.","12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.","13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.","14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.","15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.","16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.","17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.","18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.","19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.","20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.","21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.","22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.","B. Court proceedings for placement of O.S., K.S. and T.S. in public care","23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.","24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:","“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...","The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....","... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...","The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”","25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.","26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:","“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.","According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”","27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.","28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.\",\n \"A. The applicants’ family circumstances and living conditions\",\n \"6. Both applicants have been blind since childhood.\",\n \"7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.\",\n \"8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.\",\n \"9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.\",\n \"10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).\",\n \"11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.\",\n \"12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.\",\n \"13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.\",\n \"14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.\",\n \"15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.\",\n \"16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.\",\n \"17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.\",\n \"18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.\",\n \"19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.\",\n \"20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.\",\n \"21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.\",\n \"22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.\",\n \"B. Court proceedings for placement of O.S., K.S. and T.S. in public care\",\n \"23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.\",\n \"24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:\",\n \"“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...\",\n \"The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....\",\n \"... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...\",\n \"The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”\",\n \"25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.\",\n \"26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:\",\n \"“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.\",\n \"According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”\",\n \"27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.\",\n \"28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW","A. Constitution of Ukraine","29. The relevant provisions of the Constitution of Ukraine read as follows:","Article 32","“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”","Article 51","“...The family, childhood, motherhood and fatherhood are under the protection of the State.”","B. Family Code of Ukraine of 10 January 2002","30. The relevant provisions of the Family Code of Ukraine read as follows:","Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights","“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.","In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.","2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.","In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.","The same claim can be lodged by the prosecutor.","3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”","C. Law of Ukraine “On Protection of Childhood” of 26 April 2001","31. The relevant provisions of the Law read as follows:","Section 11. A child and a family","“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”","Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child","“to be brought up in a family is a fundamental principle for development of a child”","The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”","Section 14. Separation of a child and family","“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”","D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)","32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:","(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”","III. RELEVANT INTERNATIONAL INSTRUMENTS","A. The United Nations Convention on the Rights of the Child","33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.","B. Committee on the Rights of the Child","34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:","“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;","(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.","(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.","C. Council of Europe","35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:","« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;","– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;","– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);","– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»","36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his ... family life ...","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. Admissibility","38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. Parties’ submissions","a. The applicants","39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.","40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.","41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.","42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.","b. The Government","43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.","44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.","45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.","46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.","2. The Court’s assessment","a. General principles","47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).","48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).","49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).","50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).","51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).","52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).","b. Application of these principles in the present case","53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.","54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.","55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.","56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.","57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.","58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.","59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.","60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.","61. Therefore, there has been a violation of Article 8 of the Convention.","II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8","62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:","“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”","63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.","64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.","65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).","66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.","III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION","67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:","“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”","68. The Government contested these arguments.","69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.","70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).","IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION","71. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.","73. The Government contested that claim.","74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.","B. Costs and expenses","75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.","76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.","77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.","C. Default interest","78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC LAW\",\n \"A. Constitution of Ukraine\",\n \"29. The relevant provisions of the Constitution of Ukraine read as follows:\",\n \"Article 32\",\n \"“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”\",\n \"Article 51\",\n \"“...The family, childhood, motherhood and fatherhood are under the protection of the State.”\",\n \"B. Family Code of Ukraine of 10 January 2002\",\n \"30. The relevant provisions of the Family Code of Ukraine read as follows:\",\n \"Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights\",\n \"“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.\",\n \"In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.\",\n \"2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.\",\n \"In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.\",\n \"The same claim can be lodged by the prosecutor.\",\n \"3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”\",\n \"C. Law of Ukraine “On Protection of Childhood” of 26 April 2001\",\n \"31. The relevant provisions of the Law read as follows:\",\n \"Section 11. A child and a family\",\n \"“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”\",\n \"Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child\",\n \"“to be brought up in a family is a fundamental principle for development of a child”\",\n \"The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”\",\n \"Section 14. Separation of a child and family\",\n \"“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”\",\n \"D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)\",\n \"32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:\",\n \"(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”\",\n \"III. RELEVANT INTERNATIONAL INSTRUMENTS\",\n \"A. The United Nations Convention on the Rights of the Child\",\n \"33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.\",\n \"B. Committee on the Rights of the Child\",\n \"34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:\",\n \"“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;\",\n \"(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.\",\n \"(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.\",\n \"C. Council of Europe\",\n \"35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:\",\n \"« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;\",\n \"– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;\",\n \"– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);\",\n \"– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»\",\n \"36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his ... family life ...\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. Admissibility\",\n \"38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. Parties’ submissions\",\n \"a. The applicants\",\n \"39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.\",\n \"40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.\",\n \"41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.\",\n \"42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.\",\n \"b. The Government\",\n \"43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.\",\n \"44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.\",\n \"45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.\",\n \"46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.\",\n \"2. The Court’s assessment\",\n \"a. General principles\",\n \"47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).\",\n \"48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).\",\n \"49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).\",\n \"50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).\",\n \"51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).\",\n \"52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).\",\n \"b. Application of these principles in the present case\",\n \"53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.\",\n \"54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.\",\n \"55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.\",\n \"56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.\",\n \"57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.\",\n \"58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.\",\n \"59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.\",\n \"60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.\",\n \"61. Therefore, there has been a violation of Article 8 of the Convention.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8\",\n \"62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:\",\n \"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\",\n \"63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.\",\n \"64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.\",\n \"65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).\",\n \"66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\",\n \"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\",\n \"67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:\",\n \"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\",\n \"68. The Government contested these arguments.\",\n \"69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.\",\n \"70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).\",\n \"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"71. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\",\n \"73. The Government contested that claim.\",\n \"74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.\",\n \"B. Costs and expenses\",\n \"75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.\",\n \"76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.\",\n \"77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.\",\n \"C. Default interest\",\n \"78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":95,"cells":{"id":{"kind":"number","value":96,"string":"96"},"case_name":{"kind":"string","value":"Saviny v. Ukraine"},"judgement_date":{"kind":"string","value":"18 December 2008"},"facts_summary":{"kind":"string","value":"This case concerned the placement of children in public care on ground that their parents, who have both been blind since childhood, had failed to provide them with adequate care and housing. The domestic authorities based their decision on a finding that the applicants’ lack of financial means and personal qualities endangered their children’s life, health and moral upbringing. Notably they were unable to provide them with proper nutrition, clothing, hygiene and health care or to ensure that they adapt in a social and educational context. The applicants had appealed against the decision unsuccessfully."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect of private and family life) of the Convention, doubting the adequacy of the evidence on which the authorities had based their finding that the children’s living conditions had in fact been dangerous to their life and health. The judicial authorities had only examined those difficulties which could have been overcome by targeted financial and social assistance and effective counselling and had not apparently analysed in any depth the extent to which the applicants’ irremediable incapacity to provide requisite care had been responsible for the inadequacies of their children’s upbringing. Indeed, as regards parental irresponsibility, no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants’ emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants’ attempts to improve their situation. Furthermore, the Court noted that at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions."},"title":{"kind":"string","value":"Persons with disabilities and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.","A. The applicants’ family circumstances and living conditions","6. Both applicants have been blind since childhood.","7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.","8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.","9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.","10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).","11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.","12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.","13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.","14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.","15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.","16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.","17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.","18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.","19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.","20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.","21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.","22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.","B. Court proceedings for placement of O.S., K.S. and T.S. in public care","23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.","24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:","“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...","The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....","... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...","The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”","25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.","26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:","“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.","According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”","27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.","28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.\",\n \"A. The applicants’ family circumstances and living conditions\",\n \"6. Both applicants have been blind since childhood.\",\n \"7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.\",\n \"8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.\",\n \"9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.\",\n \"10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).\",\n \"11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.\",\n \"12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.\",\n \"13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.\",\n \"14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.\",\n \"15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.\",\n \"16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.\",\n \"17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.\",\n \"18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.\",\n \"19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.\",\n \"20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.\",\n \"21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.\",\n \"22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.\",\n \"B. Court proceedings for placement of O.S., K.S. and T.S. in public care\",\n \"23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.\",\n \"24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:\",\n \"“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...\",\n \"The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....\",\n \"... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...\",\n \"The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”\",\n \"25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.\",\n \"26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:\",\n \"“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.\",\n \"According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”\",\n \"27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.\",\n \"28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW","A. Constitution of Ukraine","29. The relevant provisions of the Constitution of Ukraine read as follows:","Article 32","“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”","Article 51","“...The family, childhood, motherhood and fatherhood are under the protection of the State.”","B. Family Code of Ukraine of 10 January 2002","30. The relevant provisions of the Family Code of Ukraine read as follows:","Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights","“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.","In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.","2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.","In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.","The same claim can be lodged by the prosecutor.","3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”","C. Law of Ukraine “On Protection of Childhood” of 26 April 2001","31. The relevant provisions of the Law read as follows:","Section 11. A child and a family","“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”","Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child","“to be brought up in a family is a fundamental principle for development of a child”","The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”","Section 14. Separation of a child and family","“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”","D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)","32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:","(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”","III. RELEVANT INTERNATIONAL INSTRUMENTS","A. The United Nations Convention on the Rights of the Child","33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.","B. Committee on the Rights of the Child","34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:","“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;","(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.","(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.","C. Council of Europe","35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:","« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;","– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;","– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);","– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»","36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his ... family life ...","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. Admissibility","38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. Parties’ submissions","a. The applicants","39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.","40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.","41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.","42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.","b. The Government","43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.","44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.","45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.","46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.","2. The Court’s assessment","a. General principles","47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).","48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).","49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).","50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).","51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).","52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).","b. Application of these principles in the present case","53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.","54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.","55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.","56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.","57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.","58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.","59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.","60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.","61. Therefore, there has been a violation of Article 8 of the Convention.","II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8","62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:","“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”","63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.","64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.","65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).","66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.","III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION","67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:","“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”","68. The Government contested these arguments.","69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.","70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).","IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION","71. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.","73. The Government contested that claim.","74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.","B. Costs and expenses","75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.","76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.","77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.","C. Default interest","78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC LAW\",\n \"A. Constitution of Ukraine\",\n \"29. The relevant provisions of the Constitution of Ukraine read as follows:\",\n \"Article 32\",\n \"“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”\",\n \"Article 51\",\n \"“...The family, childhood, motherhood and fatherhood are under the protection of the State.”\",\n \"B. Family Code of Ukraine of 10 January 2002\",\n \"30. The relevant provisions of the Family Code of Ukraine read as follows:\",\n \"Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights\",\n \"“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.\",\n \"In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.\",\n \"2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.\",\n \"In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.\",\n \"The same claim can be lodged by the prosecutor.\",\n \"3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”\",\n \"C. Law of Ukraine “On Protection of Childhood” of 26 April 2001\",\n \"31. The relevant provisions of the Law read as follows:\",\n \"Section 11. A child and a family\",\n \"“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”\",\n \"Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child\",\n \"“to be brought up in a family is a fundamental principle for development of a child”\",\n \"The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”\",\n \"Section 14. Separation of a child and family\",\n \"“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”\",\n \"D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)\",\n \"32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:\",\n \"(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”\",\n \"III. RELEVANT INTERNATIONAL INSTRUMENTS\",\n \"A. The United Nations Convention on the Rights of the Child\",\n \"33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.\",\n \"B. Committee on the Rights of the Child\",\n \"34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:\",\n \"“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;\",\n \"(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.\",\n \"(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.\",\n \"C. Council of Europe\",\n \"35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:\",\n \"« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;\",\n \"– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;\",\n \"– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);\",\n \"– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»\",\n \"36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his ... family life ...\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. Admissibility\",\n \"38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. Parties’ submissions\",\n \"a. The applicants\",\n \"39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.\",\n \"40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.\",\n \"41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.\",\n \"42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.\",\n \"b. The Government\",\n \"43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.\",\n \"44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.\",\n \"45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.\",\n \"46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.\",\n \"2. The Court’s assessment\",\n \"a. General principles\",\n \"47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).\",\n \"48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).\",\n \"49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).\",\n \"50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).\",\n \"51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).\",\n \"52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).\",\n \"b. Application of these principles in the present case\",\n \"53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.\",\n \"54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.\",\n \"55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.\",\n \"56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.\",\n \"57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.\",\n \"58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.\",\n \"59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.\",\n \"60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.\",\n \"61. Therefore, there has been a violation of Article 8 of the Convention.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8\",\n \"62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:\",\n \"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\",\n \"63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.\",\n \"64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.\",\n \"65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).\",\n \"66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\",\n \"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\",\n \"67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:\",\n \"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\",\n \"68. The Government contested these arguments.\",\n \"69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.\",\n \"70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).\",\n \"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"71. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\",\n \"73. The Government contested that claim.\",\n \"74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.\",\n \"B. Costs and expenses\",\n \"75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.\",\n \"76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.\",\n \"77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.\",\n \"C. Default interest\",\n \"78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":96,"cells":{"id":{"kind":"number","value":97,"string":"97"},"case_name":{"kind":"string","value":"Y.C. v. the United Kingdom"},"judgement_date":{"kind":"string","value":"13 March 2012"},"facts_summary":{"kind":"string","value":"This case concerned childcare proceedings in respect of the applicant’s son, born in 2001, which had resulted in an order authorising the child to be placed for adoption because of concerns about her relationship with the child’s father. The applicant complained in particular about the courts’ refusal to order an assessment of her as a sole carer for her son."},"law_summary":{"kind":"string","value":"The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the decision to make a placement order had not exceeded the State’s margin of appreciation and that the reasons for the decision had been relevant and sufficient. The applicant had further been given every opportunity to present her case and had been fully involved in the decision-making process. The Court observed in particular that the domestic courts had directed their mind, as required by Article 8 of the Convention, to the child’s best interests, had had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian and the psychologist, all of whom had identified the issues at stake."},"title":{"kind":"string","value":"Parental Rights"},"subtitle":{"kind":"string","value":"Taking of children into care"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","A. The background facts","5. The applicant was born in 1962 and lives in Bridgwater.","6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.","7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.","B. The domestic proceedings","1. The emergency protection order application","8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.","9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:","“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].","10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.","2. The care proceedings before the Family Proceedings Court","a. The interim care orders and preparation for hearing","11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.","12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.","13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.","14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.","15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.","16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.","17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:","“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...","We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”","18. The court noted that the guardian supported the renewal of the ICO and continued:","“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”","19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.","20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.","21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.","22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.","23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:","“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”","24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.","25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.","26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:","“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”","27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.","28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.","29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:","“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.","It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”","30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.","31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.","32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.","33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.","34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:","“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”","35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.","36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.","37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:","“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”","38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:","“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”","39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.","40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.","41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.","42. As to K’s own views, she noted:","“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”","43. In her analysis and conclusions, she noted:","“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”","44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:","“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”","45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:","“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”","46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.","47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:","“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”","48. She asked the court to make a care order and a placement order in respect of K.","49. On 17 March 2009 the applicant filed a statement in response. The statement noted:","“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”","50. She refuted several aspects of the social worker’s statement, noting:","“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”","51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.","52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.","53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.","54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.","55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:","“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”","56. The report continued:","“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”","57. The report went on to consider in more detail P.C.’s behaviour and history.","58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:","“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”","59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.","b. The hearing before the Family Proceedings Court","60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.","61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.","62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.","63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.","64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.","65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.","66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.","67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.","68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:","“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”","69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:","“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].","In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”","70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:","“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].","...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.","We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”","71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:","“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”","72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.","3. The appeal to the County Court","73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.","74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.","75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.","76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.","77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:","“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”","78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:","“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”","79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:","“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”","80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:","“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”","81. He continued:","“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”","82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:","“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.","... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”","83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.","4. The appeal to the Court of Appeal","84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.","85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.","86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:","“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”","87. He continued:","“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”","88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.","5. Subsequent events","89. A final supervised contact between K. and the applicant took place in December 2009.","90. K. was placed with a prospective adoptive parent on 18 January 2010.","91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"A. The background facts\",\n \"5. The applicant was born in 1962 and lives in Bridgwater.\",\n \"6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.\",\n \"7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.\",\n \"B. The domestic proceedings\",\n \"1. The emergency protection order application\",\n \"8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.\",\n \"9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:\",\n \"“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].\",\n \"10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.\",\n \"2. The care proceedings before the Family Proceedings Court\",\n \"a. The interim care orders and preparation for hearing\",\n \"11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.\",\n \"12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.\",\n \"13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.\",\n \"14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.\",\n \"15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.\",\n \"16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.\",\n \"17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:\",\n \"“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...\",\n \"We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”\",\n \"18. The court noted that the guardian supported the renewal of the ICO and continued:\",\n \"“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”\",\n \"19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.\",\n \"20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.\",\n \"21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.\",\n \"22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.\",\n \"23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:\",\n \"“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”\",\n \"24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.\",\n \"25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.\",\n \"26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:\",\n \"“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”\",\n \"27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.\",\n \"28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.\",\n \"29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:\",\n \"“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.\",\n \"It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”\",\n \"30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.\",\n \"31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.\",\n \"32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.\",\n \"33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.\",\n \"34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:\",\n \"“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”\",\n \"35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.\",\n \"36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.\",\n \"37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:\",\n \"“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”\",\n \"38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:\",\n \"“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”\",\n \"39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.\",\n \"40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.\",\n \"41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.\",\n \"42. As to K’s own views, she noted:\",\n \"“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”\",\n \"43. In her analysis and conclusions, she noted:\",\n \"“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”\",\n \"44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:\",\n \"“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”\",\n \"45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:\",\n \"“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”\",\n \"46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.\",\n \"47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:\",\n \"“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”\",\n \"48. She asked the court to make a care order and a placement order in respect of K.\",\n \"49. On 17 March 2009 the applicant filed a statement in response. The statement noted:\",\n \"“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”\",\n \"50. She refuted several aspects of the social worker’s statement, noting:\",\n \"“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”\",\n \"51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.\",\n \"52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.\",\n \"53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.\",\n \"54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.\",\n \"55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:\",\n \"“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”\",\n \"56. The report continued:\",\n \"“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”\",\n \"57. The report went on to consider in more detail P.C.’s behaviour and history.\",\n \"58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:\",\n \"“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”\",\n \"59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.\",\n \"b. The hearing before the Family Proceedings Court\",\n \"60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.\",\n \"61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.\",\n \"62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.\",\n \"63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.\",\n \"64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.\",\n \"65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.\",\n \"66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.\",\n \"67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.\",\n \"68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:\",\n \"“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”\",\n \"69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:\",\n \"“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].\",\n \"In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”\",\n \"70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:\",\n \"“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].\",\n \"...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.\",\n \"We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”\",\n \"71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:\",\n \"“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”\",\n \"72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.\",\n \"3. The appeal to the County Court\",\n \"73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.\",\n \"74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.\",\n \"75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.\",\n \"76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.\",\n \"77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:\",\n \"“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”\",\n \"78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:\",\n \"“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”\",\n \"79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:\",\n \"“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”\",\n \"80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:\",\n \"“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”\",\n \"81. He continued:\",\n \"“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”\",\n \"82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:\",\n \"“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.\",\n \"... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”\",\n \"83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.\",\n \"4. The appeal to the Court of Appeal\",\n \"84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.\",\n \"85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.\",\n \"86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:\",\n \"“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”\",\n \"87. He continued:\",\n \"“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”\",\n \"88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.\",\n \"5. Subsequent events\",\n \"89. A final supervised contact between K. and the applicant took place in December 2009.\",\n \"90. K. was placed with a prospective adoptive parent on 18 January 2010.\",\n \"91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW AND PRACTICE","A. Child care proceedings","1. Emergency protection orders","92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.","2. Care orders and interim care orders","93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:","“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and","(b) that the harm, or likelihood of harm, is attributable to–","(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or","(ii) the child’s being beyond parental control.”","94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.","95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.","96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.","97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;","“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);","(b) his physical, emotional and educational needs;","(c) the likely effect on him of any change in his circumstances;","(d) his age, sex, background and any characteristics of his which the court considers relevant;","(e) any harm which he has suffered or is at risk of suffering;","(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;","(g) the range of powers available to the court under this Act in the proceedings in question.”","3. Placement orders","98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:","“(a) the child is subject to a care order,","(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or","(c) the child has no parent or guardian.”","99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:","“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–","(a) the parent or guardian cannot be found or is incapable of giving consent, or","(b) the welfare of the child requires the consent to be dispensed with.”","100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.","101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.","102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:","“Before making a placement order the court must–","(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and","(b) invite the parties to the proceedings to comment on those arrangements.”","103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:","“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),","(b) the child’s particular needs,","(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,","(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,","(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,","(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–","(i) the likelihood of any such relationship continuing and the value to the child of its doing so,","(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,","(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”","104. Section 1(6) provides:","“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”","4. Adoption orders","105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.","B. Clarifications of aspects of a judgment","106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:","“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”","107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:","“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.","This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”","C. The statutory checklists and Article 8 in childcare cases","108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).","109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:","“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”","110. As to Article 8, she continued:","“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”","111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:","“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”","112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.","113. Lord Justice Wall noted:","“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.","96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”","114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:","“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.","99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.","100. In my judgment, neither defence meets the criticism ...”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life ...","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","116. The Government contested that argument.","A. Admissibility","117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. The parties’ submissions","a. The applicant","118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.","119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.","120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).","121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).","122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.","123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.","b. The Government","124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.","125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.","126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.","127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.","128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.","129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.","2. The Court’s assessment","130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.","131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.","132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.","a. General principles","133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).","134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).","135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.","136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).","137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.","138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.","139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).","b. Application of the general principles to the facts of the case","140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.","141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).","142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.","143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.","144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.","145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).","146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).","147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.","148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.","149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.","150. There has accordingly been no violation of Article 8 of the Convention.","II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.","152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4."],"string":"[\n \"II. RELEVANT DOMESTIC LAW AND PRACTICE\",\n \"A. Child care proceedings\",\n \"1. Emergency protection orders\",\n \"92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.\",\n \"2. Care orders and interim care orders\",\n \"93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:\",\n \"“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and\",\n \"(b) that the harm, or likelihood of harm, is attributable to–\",\n \"(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or\",\n \"(ii) the child’s being beyond parental control.”\",\n \"94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.\",\n \"95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.\",\n \"96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.\",\n \"97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;\",\n \"“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);\",\n \"(b) his physical, emotional and educational needs;\",\n \"(c) the likely effect on him of any change in his circumstances;\",\n \"(d) his age, sex, background and any characteristics of his which the court considers relevant;\",\n \"(e) any harm which he has suffered or is at risk of suffering;\",\n \"(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;\",\n \"(g) the range of powers available to the court under this Act in the proceedings in question.”\",\n \"3. Placement orders\",\n \"98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:\",\n \"“(a) the child is subject to a care order,\",\n \"(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or\",\n \"(c) the child has no parent or guardian.”\",\n \"99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:\",\n \"“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–\",\n \"(a) the parent or guardian cannot be found or is incapable of giving consent, or\",\n \"(b) the welfare of the child requires the consent to be dispensed with.”\",\n \"100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.\",\n \"101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.\",\n \"102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:\",\n \"“Before making a placement order the court must–\",\n \"(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and\",\n \"(b) invite the parties to the proceedings to comment on those arrangements.”\",\n \"103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:\",\n \"“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),\",\n \"(b) the child’s particular needs,\",\n \"(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,\",\n \"(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,\",\n \"(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,\",\n \"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–\",\n \"(i) the likelihood of any such relationship continuing and the value to the child of its doing so,\",\n \"(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,\",\n \"(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”\",\n \"104. Section 1(6) provides:\",\n \"“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”\",\n \"4. Adoption orders\",\n \"105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.\",\n \"B. Clarifications of aspects of a judgment\",\n \"106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:\",\n \"“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”\",\n \"107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:\",\n \"“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.\",\n \"This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”\",\n \"C. The statutory checklists and Article 8 in childcare cases\",\n \"108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).\",\n \"109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:\",\n \"“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”\",\n \"110. As to Article 8, she continued:\",\n \"“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”\",\n \"111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:\",\n \"“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”\",\n \"112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.\",\n \"113. Lord Justice Wall noted:\",\n \"“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.\",\n \"96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”\",\n \"114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:\",\n \"“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.\",\n \"99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.\",\n \"100. In my judgment, neither defence meets the criticism ...”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life ...\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"116. The Government contested that argument.\",\n \"A. Admissibility\",\n \"117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"a. The applicant\",\n \"118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.\",\n \"119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.\",\n \"120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).\",\n \"121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).\",\n \"122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.\",\n \"123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.\",\n \"b. The Government\",\n \"124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.\",\n \"125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.\",\n \"126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.\",\n \"127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.\",\n \"128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.\",\n \"129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.\",\n \"2. The Court’s assessment\",\n \"130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.\",\n \"131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.\",\n \"132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.\",\n \"a. General principles\",\n \"133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).\",\n \"134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).\",\n \"135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.\",\n \"136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).\",\n \"137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.\",\n \"138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.\",\n \"139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).\",\n \"b. Application of the general principles to the facts of the case\",\n \"140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.\",\n \"141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).\",\n \"142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.\",\n \"143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.\",\n \"144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.\",\n \"145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).\",\n \"146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).\",\n \"147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.\",\n \"148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.\",\n \"149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.\",\n \"150. There has accordingly been no violation of Article 8 of the Convention.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\",\n \"151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.\",\n \"152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4.\"\n]"}}},{"rowIdx":97,"cells":{"id":{"kind":"number","value":98,"string":"98"},"case_name":{"kind":"string","value":"Y.C. v. the United Kingdom"},"judgement_date":{"kind":"string","value":"13 March 2012"},"facts_summary":{"kind":"string","value":"The applicant and her partner of several years had a son in 2001. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. There were subsequent incidents of domestic violence and alcohol abuse which escalated from the end of 2007 with the police being called to the family home on numerous occasions. In June 2008 the local authority obtained an emergency protection order after the boy was injured during a further violent altercation between the parents. Childcare proceedings resulted in an order authorising the child to be placed for adoption. The applicant complained that the courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making the placement order had violated her rights under Article 8 (right to respect for private and family life) of the Convention."},"law_summary":{"kind":"string","value":"The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the reasons for the decision to make a placement order had been relevant and sufficient, and that the applicant had been given every opportunity to present her case and had been fully involved in the decision-making process. The Court found in particular that, in the light of the history of the case and the reports, the County Court judge’s view that a resumption of the applicant’s relationship with the father was likely and entailed a risk to the child’s well-being did not appear unreasonable. Accordingly, while it was in a child’s best interests that his or her family ties be maintained where possible, it was clear that in the instant case this consideration had been outweighed by the need to ensure the child’s development in a safe and secure environment. In this regard the Court observed in particular that attempts had been made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance. When the applicant indicated that she had separated from the child’s father, she had further been given details of domestic violence support that she could access. It appeared, however, that she had not accessed such support and had ultimately reconciled with the child’s father."},"title":{"kind":"string","value":"Domestic violence"},"subtitle":{"kind":"string","value":"State’s duty to protect physical and psychological integrity of individuals"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","A. The background facts","5. The applicant was born in 1962 and lives in Bridgwater.","6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.","7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.","B. The domestic proceedings","1. The emergency protection order application","8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.","9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:","“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].","10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.","2. The care proceedings before the Family Proceedings Court","a. The interim care orders and preparation for hearing","11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.","12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.","13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.","14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.","15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.","16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.","17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:","“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...","We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”","18. The court noted that the guardian supported the renewal of the ICO and continued:","“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”","19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.","20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.","21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.","22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.","23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:","“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”","24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.","25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.","26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:","“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”","27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.","28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.","29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:","“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.","It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”","30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.","31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.","32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.","33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.","34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:","“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”","35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.","36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.","37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:","“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”","38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:","“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”","39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.","40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.","41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.","42. As to K’s own views, she noted:","“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”","43. In her analysis and conclusions, she noted:","“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”","44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:","“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”","45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:","“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”","46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.","47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:","“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”","48. She asked the court to make a care order and a placement order in respect of K.","49. On 17 March 2009 the applicant filed a statement in response. The statement noted:","“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”","50. She refuted several aspects of the social worker’s statement, noting:","“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”","51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.","52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.","53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.","54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.","55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:","“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”","56. The report continued:","“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”","57. The report went on to consider in more detail P.C.’s behaviour and history.","58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:","“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”","59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.","b. The hearing before the Family Proceedings Court","60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.","61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.","62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.","63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.","64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.","65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.","66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.","67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.","68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:","“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”","69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:","“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].","In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”","70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:","“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].","...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.","We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”","71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:","“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”","72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.","3. The appeal to the County Court","73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.","74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.","75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.","76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.","77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:","“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”","78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:","“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”","79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:","“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”","80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:","“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”","81. He continued:","“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”","82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:","“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.","... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”","83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.","4. The appeal to the Court of Appeal","84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.","85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.","86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:","“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”","87. He continued:","“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”","88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.","5. Subsequent events","89. A final supervised contact between K. and the applicant took place in December 2009.","90. K. was placed with a prospective adoptive parent on 18 January 2010.","91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"A. The background facts\",\n \"5. The applicant was born in 1962 and lives in Bridgwater.\",\n \"6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.\",\n \"7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.\",\n \"B. The domestic proceedings\",\n \"1. The emergency protection order application\",\n \"8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.\",\n \"9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:\",\n \"“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].\",\n \"10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.\",\n \"2. The care proceedings before the Family Proceedings Court\",\n \"a. The interim care orders and preparation for hearing\",\n \"11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.\",\n \"12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.\",\n \"13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.\",\n \"14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.\",\n \"15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.\",\n \"16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.\",\n \"17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:\",\n \"“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...\",\n \"We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”\",\n \"18. The court noted that the guardian supported the renewal of the ICO and continued:\",\n \"“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”\",\n \"19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.\",\n \"20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.\",\n \"21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.\",\n \"22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.\",\n \"23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:\",\n \"“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”\",\n \"24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.\",\n \"25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.\",\n \"26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:\",\n \"“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”\",\n \"27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.\",\n \"28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.\",\n \"29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:\",\n \"“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.\",\n \"It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”\",\n \"30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.\",\n \"31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.\",\n \"32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.\",\n \"33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.\",\n \"34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:\",\n \"“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”\",\n \"35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.\",\n \"36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.\",\n \"37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:\",\n \"“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”\",\n \"38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:\",\n \"“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”\",\n \"39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.\",\n \"40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.\",\n \"41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.\",\n \"42. As to K’s own views, she noted:\",\n \"“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”\",\n \"43. In her analysis and conclusions, she noted:\",\n \"“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”\",\n \"44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:\",\n \"“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”\",\n \"45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:\",\n \"“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”\",\n \"46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.\",\n \"47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:\",\n \"“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”\",\n \"48. She asked the court to make a care order and a placement order in respect of K.\",\n \"49. On 17 March 2009 the applicant filed a statement in response. The statement noted:\",\n \"“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”\",\n \"50. She refuted several aspects of the social worker’s statement, noting:\",\n \"“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”\",\n \"51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.\",\n \"52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.\",\n \"53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.\",\n \"54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.\",\n \"55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:\",\n \"“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”\",\n \"56. The report continued:\",\n \"“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”\",\n \"57. The report went on to consider in more detail P.C.’s behaviour and history.\",\n \"58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:\",\n \"“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”\",\n \"59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.\",\n \"b. The hearing before the Family Proceedings Court\",\n \"60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.\",\n \"61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.\",\n \"62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.\",\n \"63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.\",\n \"64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.\",\n \"65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.\",\n \"66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.\",\n \"67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.\",\n \"68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:\",\n \"“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”\",\n \"69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:\",\n \"“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].\",\n \"In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”\",\n \"70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:\",\n \"“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].\",\n \"...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.\",\n \"We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”\",\n \"71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:\",\n \"“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”\",\n \"72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.\",\n \"3. The appeal to the County Court\",\n \"73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.\",\n \"74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.\",\n \"75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.\",\n \"76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.\",\n \"77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:\",\n \"“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”\",\n \"78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:\",\n \"“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”\",\n \"79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:\",\n \"“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”\",\n \"80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:\",\n \"“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”\",\n \"81. He continued:\",\n \"“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”\",\n \"82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:\",\n \"“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.\",\n \"... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”\",\n \"83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.\",\n \"4. The appeal to the Court of Appeal\",\n \"84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.\",\n \"85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.\",\n \"86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:\",\n \"“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”\",\n \"87. He continued:\",\n \"“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”\",\n \"88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.\",\n \"5. Subsequent events\",\n \"89. A final supervised contact between K. and the applicant took place in December 2009.\",\n \"90. K. was placed with a prospective adoptive parent on 18 January 2010.\",\n \"91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW AND PRACTICE","A. Child care proceedings","1. Emergency protection orders","92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.","2. Care orders and interim care orders","93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:","“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and","(b) that the harm, or likelihood of harm, is attributable to–","(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or","(ii) the child’s being beyond parental control.”","94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.","95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.","96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.","97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;","“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);","(b) his physical, emotional and educational needs;","(c) the likely effect on him of any change in his circumstances;","(d) his age, sex, background and any characteristics of his which the court considers relevant;","(e) any harm which he has suffered or is at risk of suffering;","(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;","(g) the range of powers available to the court under this Act in the proceedings in question.”","3. Placement orders","98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:","“(a) the child is subject to a care order,","(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or","(c) the child has no parent or guardian.”","99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:","“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–","(a) the parent or guardian cannot be found or is incapable of giving consent, or","(b) the welfare of the child requires the consent to be dispensed with.”","100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.","101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.","102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:","“Before making a placement order the court must–","(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and","(b) invite the parties to the proceedings to comment on those arrangements.”","103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:","“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),","(b) the child’s particular needs,","(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,","(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,","(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,","(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–","(i) the likelihood of any such relationship continuing and the value to the child of its doing so,","(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,","(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”","104. Section 1(6) provides:","“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”","4. Adoption orders","105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.","B. Clarifications of aspects of a judgment","106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:","“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”","107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:","“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.","This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”","C. The statutory checklists and Article 8 in childcare cases","108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).","109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:","“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”","110. As to Article 8, she continued:","“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”","111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:","“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”","112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.","113. Lord Justice Wall noted:","“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.","96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”","114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:","“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.","99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.","100. In my judgment, neither defence meets the criticism ...”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life ...","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","116. The Government contested that argument.","A. Admissibility","117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. The parties’ submissions","a. The applicant","118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.","119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.","120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).","121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).","122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.","123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.","b. The Government","124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.","125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.","126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.","127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.","128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.","129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.","2. The Court’s assessment","130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.","131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.","132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.","a. General principles","133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).","134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).","135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.","136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).","137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.","138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.","139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).","b. Application of the general principles to the facts of the case","140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.","141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).","142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.","143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.","144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.","145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).","146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).","147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.","148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.","149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.","150. There has accordingly been no violation of Article 8 of the Convention.","II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.","152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4."],"string":"[\n \"II. RELEVANT DOMESTIC LAW AND PRACTICE\",\n \"A. Child care proceedings\",\n \"1. Emergency protection orders\",\n \"92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.\",\n \"2. Care orders and interim care orders\",\n \"93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:\",\n \"“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and\",\n \"(b) that the harm, or likelihood of harm, is attributable to–\",\n \"(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or\",\n \"(ii) the child’s being beyond parental control.”\",\n \"94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.\",\n \"95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.\",\n \"96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.\",\n \"97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;\",\n \"“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);\",\n \"(b) his physical, emotional and educational needs;\",\n \"(c) the likely effect on him of any change in his circumstances;\",\n \"(d) his age, sex, background and any characteristics of his which the court considers relevant;\",\n \"(e) any harm which he has suffered or is at risk of suffering;\",\n \"(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;\",\n \"(g) the range of powers available to the court under this Act in the proceedings in question.”\",\n \"3. Placement orders\",\n \"98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:\",\n \"“(a) the child is subject to a care order,\",\n \"(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or\",\n \"(c) the child has no parent or guardian.”\",\n \"99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:\",\n \"“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–\",\n \"(a) the parent or guardian cannot be found or is incapable of giving consent, or\",\n \"(b) the welfare of the child requires the consent to be dispensed with.”\",\n \"100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.\",\n \"101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.\",\n \"102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:\",\n \"“Before making a placement order the court must–\",\n \"(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and\",\n \"(b) invite the parties to the proceedings to comment on those arrangements.”\",\n \"103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:\",\n \"“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),\",\n \"(b) the child’s particular needs,\",\n \"(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,\",\n \"(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,\",\n \"(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,\",\n \"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–\",\n \"(i) the likelihood of any such relationship continuing and the value to the child of its doing so,\",\n \"(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,\",\n \"(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”\",\n \"104. Section 1(6) provides:\",\n \"“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”\",\n \"4. Adoption orders\",\n \"105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.\",\n \"B. Clarifications of aspects of a judgment\",\n \"106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:\",\n \"“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”\",\n \"107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:\",\n \"“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.\",\n \"This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”\",\n \"C. The statutory checklists and Article 8 in childcare cases\",\n \"108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).\",\n \"109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:\",\n \"“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”\",\n \"110. As to Article 8, she continued:\",\n \"“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”\",\n \"111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:\",\n \"“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”\",\n \"112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.\",\n \"113. Lord Justice Wall noted:\",\n \"“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.\",\n \"96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”\",\n \"114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:\",\n \"“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.\",\n \"99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.\",\n \"100. In my judgment, neither defence meets the criticism ...”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life ...\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"116. The Government contested that argument.\",\n \"A. Admissibility\",\n \"117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"a. The applicant\",\n \"118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.\",\n \"119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.\",\n \"120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).\",\n \"121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).\",\n \"122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.\",\n \"123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.\",\n \"b. The Government\",\n \"124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.\",\n \"125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.\",\n \"126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.\",\n \"127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.\",\n \"128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.\",\n \"129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.\",\n \"2. The Court’s assessment\",\n \"130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.\",\n \"131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.\",\n \"132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.\",\n \"a. General principles\",\n \"133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).\",\n \"134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).\",\n \"135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.\",\n \"136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).\",\n \"137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.\",\n \"138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.\",\n \"139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).\",\n \"b. Application of the general principles to the facts of the case\",\n \"140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.\",\n \"141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).\",\n \"142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.\",\n \"143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.\",\n \"144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.\",\n \"145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).\",\n \"146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).\",\n \"147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.\",\n \"148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.\",\n \"149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.\",\n \"150. There has accordingly been no violation of Article 8 of the Convention.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\",\n \"151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.\",\n \"152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4.\"\n]"}}},{"rowIdx":98,"cells":{"id":{"kind":"number","value":99,"string":"99"},"case_name":{"kind":"string","value":"A.K. and L. v. Croatia"},"judgement_date":{"kind":"string","value":"8 January 2013"},"facts_summary":{"kind":"string","value":"This case concerned a mother with mild mental disability who had been divested of her parental rights. Her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, by not informing the first applicant about the adoption proceedings, the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, both as regards the confinement of the applicant as well as the placement in care of her minor children. It pointed out in particular that in Romania there had been a number of precedents of improper confinement of individuals with psychiatric disorders, in spite of recent legislative changes in favour of patients’ rights. It concluded that, judging from the applicant’s medical history, the authorities had not followed the applicable procedure when deciding on her confinement. Furthermore, the absence of special protection, especially through the official appointment of a lawyer or designation of a guardian, had had the effect of depriving the applicant of her right to take part in the decision-making process concerning the placement of her children in residential care."},"title":{"kind":"string","value":"Parental Rights"},"subtitle":{"kind":"string","value":"Taking of children into care"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.","5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.","6. The first applicant consented to having L. placed in a foster family.","A. Proceedings related to divesting the first applicant of her parental rights","7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.","8. The first applicant was unrepresented in those proceedings.","9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.","The relevant part of the decision reads:","“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.","At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...","The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.","The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.","The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...","... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.","In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.","...”","This decision was served on the first applicant on 17 May 2010.","10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.","B. Proceedings related to restoring the first applicant’s parental rights","11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.","12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.","13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.","14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.","15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.","16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.\",\n \"5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.\",\n \"6. The first applicant consented to having L. placed in a foster family.\",\n \"A. Proceedings related to divesting the first applicant of her parental rights\",\n \"7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.\",\n \"8. The first applicant was unrepresented in those proceedings.\",\n \"9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.\",\n \"The relevant part of the decision reads:\",\n \"“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.\",\n \"At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...\",\n \"The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.\",\n \"The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.\",\n \"The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...\",\n \"... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.\",\n \"In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.\",\n \"...”\",\n \"This decision was served on the first applicant on 17 May 2010.\",\n \"10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.\",\n \"B. Proceedings related to restoring the first applicant’s parental rights\",\n \"11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.\",\n \"12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.\",\n \"13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.\",\n \"14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.\",\n \"15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.\",\n \"16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC AND COMPARATIVE LAW","A. Domestic law","17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:","Section 114","“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.","(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:","1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;","2. has sexually abused a child;","3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;","4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;","5. has incited a child to socially unacceptable behaviour;","6. has abandoned a child;","7. has not provided for a child with whom he or she lives for a period exceeding three months;","8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;","9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;","10. has abused the rights of a child in another manner.","(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.","(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.","(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.","(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.","...”","Section 119","“(1) Once adoption has been established parental custody [of the adopted child] shall cease.","...”","Section 125","“(1) Adoption may be established if it is in the interest of the child.","...”","Section 129","“(1) Adoption shall require the consent of both parents, except where otherwise provided.","...”","Section 130","“Adoption shall not require the consent of a parent who is ...","1. divested of parental rights","...”","Section 135","“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”","Section 138","...","“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”","Section 139","“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”","Section 144","“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.","...”","Section 267","“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”","B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States","18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).","19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.","20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.","21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.","22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.","23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.","24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.","25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.","26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.","27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.","28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.","29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.","30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.","31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.","32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.","33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.","C. International law","34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:","Article 9","“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”","“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”","Article 21","“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:","(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”","35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:","Principle 15:","“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:"," the consent of the mother"," the consent of the father.","States may also require the consent of the child considered by the internal law as having sufficient understanding.","2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.","3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”","36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:","Article 5 – Consents to an adoption","“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:","a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;","b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;","c the consent of the spouse or registered partner of the adopter.","2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.","3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.","4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.","5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.","6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.","She relied on Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. Admissibility","1. The parties’ arguments","38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.","39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.","40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.","41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.","42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.","43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.","44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.","45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.","2. The Court’s assessment","(a) Standing of the first applicant to act on behalf of L.","46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).","47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.","48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).","49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.","50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.","(b) Applicability of Article 8 of the Convention to the present case","51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).","52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.","(c) Exhaustion of domestic remedies and compliance with the six-month rule","53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.","(d) Conclusion","54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. The parties’ submissions","55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.","56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.","57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.","2. The Court’s assessment","(a) Whether there was an interference","58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).","59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.","60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).","(b) Legality of the interference and legitimate aim","61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.","(c) Necessity in a democratic society","62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).","63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).","64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).","65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.","66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.","67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.","68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.","69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.","70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.","71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.","72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.","73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.","74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.","75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.","76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.","77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.","78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.","79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.","80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.","II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION","81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.","82. The Government contested these arguments.","83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.","84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.","III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION","85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:","“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”","A. Admissibility","86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.","87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.","88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.","89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.","B. Merits","90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.","91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.","92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).","93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.","94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.","IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION","95. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.","97. The Government deemed the sum claimed excessive.","98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.","B. Costs and expenses","99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.","100. The Government deemed the sum claimed excessive.","101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.","C. Default interest","102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC AND COMPARATIVE LAW\",\n \"A. Domestic law\",\n \"17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:\",\n \"Section 114\",\n \"“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.\",\n \"(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:\",\n \"1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;\",\n \"2. has sexually abused a child;\",\n \"3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;\",\n \"4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;\",\n \"5. has incited a child to socially unacceptable behaviour;\",\n \"6. has abandoned a child;\",\n \"7. has not provided for a child with whom he or she lives for a period exceeding three months;\",\n \"8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;\",\n \"9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;\",\n \"10. has abused the rights of a child in another manner.\",\n \"(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.\",\n \"(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.\",\n \"(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.\",\n \"(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.\",\n \"...”\",\n \"Section 119\",\n \"“(1) Once adoption has been established parental custody [of the adopted child] shall cease.\",\n \"...”\",\n \"Section 125\",\n \"“(1) Adoption may be established if it is in the interest of the child.\",\n \"...”\",\n \"Section 129\",\n \"“(1) Adoption shall require the consent of both parents, except where otherwise provided.\",\n \"...”\",\n \"Section 130\",\n \"“Adoption shall not require the consent of a parent who is ...\",\n \"1. divested of parental rights\",\n \"...”\",\n \"Section 135\",\n \"“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”\",\n \"Section 138\",\n \"...\",\n \"“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”\",\n \"Section 139\",\n \"“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”\",\n \"Section 144\",\n \"“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.\",\n \"...”\",\n \"Section 267\",\n \"“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”\",\n \"B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States\",\n \"18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).\",\n \"19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.\",\n \"20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.\",\n \"21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.\",\n \"22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.\",\n \"23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.\",\n \"24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.\",\n \"25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.\",\n \"26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.\",\n \"27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.\",\n \"28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.\",\n \"29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.\",\n \"30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.\",\n \"31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.\",\n \"32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.\",\n \"33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.\",\n \"C. International law\",\n \"34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:\",\n \"Article 9\",\n \"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”\",\n \"“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”\",\n \"Article 21\",\n \"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:\",\n \"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”\",\n \"35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:\",\n \"Principle 15:\",\n \"“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:\",\n \" the consent of the mother\",\n \" the consent of the father.\",\n \"States may also require the consent of the child considered by the internal law as having sufficient understanding.\",\n \"2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.\",\n \"3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”\",\n \"36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:\",\n \"Article 5 – Consents to an adoption\",\n \"“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:\",\n \"a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;\",\n \"b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;\",\n \"c the consent of the spouse or registered partner of the adopter.\",\n \"2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.\",\n \"3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.\",\n \"4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.\",\n \"5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.\",\n \"6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.\",\n \"She relied on Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. Admissibility\",\n \"1. The parties’ arguments\",\n \"38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.\",\n \"39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.\",\n \"40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.\",\n \"41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.\",\n \"42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.\",\n \"43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.\",\n \"44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.\",\n \"45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.\",\n \"2. The Court’s assessment\",\n \"(a) Standing of the first applicant to act on behalf of L.\",\n \"46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).\",\n \"47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.\",\n \"48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).\",\n \"49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.\",\n \"50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.\",\n \"(b) Applicability of Article 8 of the Convention to the present case\",\n \"51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).\",\n \"52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.\",\n \"(c) Exhaustion of domestic remedies and compliance with the six-month rule\",\n \"53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.\",\n \"(d) Conclusion\",\n \"54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.\",\n \"56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.\",\n \"57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.\",\n \"2. The Court’s assessment\",\n \"(a) Whether there was an interference\",\n \"58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).\",\n \"59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.\",\n \"60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).\",\n \"(b) Legality of the interference and legitimate aim\",\n \"61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.\",\n \"(c) Necessity in a democratic society\",\n \"62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).\",\n \"63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).\",\n \"64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).\",\n \"65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.\",\n \"66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.\",\n \"67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.\",\n \"68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.\",\n \"69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.\",\n \"70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.\",\n \"71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.\",\n \"72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.\",\n \"73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.\",\n \"74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.\",\n \"75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.\",\n \"76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.\",\n \"77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.\",\n \"78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.\",\n \"79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.\",\n \"80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\",\n \"81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.\",\n \"82. The Government contested these arguments.\",\n \"83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\",\n \"84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.\",\n \"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\",\n \"85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:\",\n \"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\",\n \"A. Admissibility\",\n \"86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.\",\n \"87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.\",\n \"88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.\",\n \"89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.\",\n \"B. Merits\",\n \"90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.\",\n \"91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.\",\n \"92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).\",\n \"93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.\",\n \"94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.\",\n \"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"95. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\",\n \"97. The Government deemed the sum claimed excessive.\",\n \"98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.\",\n \"B. Costs and expenses\",\n \"99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.\",\n \"100. The Government deemed the sum claimed excessive.\",\n \"101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.\",\n \"C. Default interest\",\n \"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":99,"cells":{"id":{"kind":"number","value":100,"string":"100"},"case_name":{"kind":"string","value":"A.K. and L. v. Croatia"},"judgement_date":{"kind":"string","value":"8 January 2013"},"facts_summary":{"kind":"string","value":"The first applicant is the mother of the second applicant, who was born in 2008. Soon after his birth, the second applicant was placed, with his mother’s consent, in a foster family in another town, on the grounds that his mother had no income and lived in a dilapidated property without heating. The first applicant complained in particular that she had not been represented in subsequent court proceedings which had resulted in a decision divesting her of her parental rights, on the ground that she had a mild mental disability, and that her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Observing in particular that, despite the legal requirement and the authorities’ findings that the first applicant suffered from a mild mental disability, she had not been represented by a lawyer in the proceedings divesting her of parental rights, and that, by not informing her about the adoption proceedings the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption, the Court found that the first applicant had thus been prevented from enjoying her right guaranteed by domestic law and had not been sufficiently involved in the decision-making process. Kocherov and Sergeyeva v. Russia"},"title":{"kind":"string","value":"Persons with disabilities and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.","5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.","6. The first applicant consented to having L. placed in a foster family.","A. Proceedings related to divesting the first applicant of her parental rights","7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.","8. The first applicant was unrepresented in those proceedings.","9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.","The relevant part of the decision reads:","“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.","At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...","The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.","The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.","The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...","... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.","In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.","...”","This decision was served on the first applicant on 17 May 2010.","10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.","B. Proceedings related to restoring the first applicant’s parental rights","11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.","12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.","13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.","14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.","15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.","16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.\",\n \"5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.\",\n \"6. The first applicant consented to having L. placed in a foster family.\",\n \"A. Proceedings related to divesting the first applicant of her parental rights\",\n \"7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.\",\n \"8. The first applicant was unrepresented in those proceedings.\",\n \"9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.\",\n \"The relevant part of the decision reads:\",\n \"“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.\",\n \"At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...\",\n \"The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.\",\n \"The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.\",\n \"The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...\",\n \"... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.\",\n \"In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.\",\n \"...”\",\n \"This decision was served on the first applicant on 17 May 2010.\",\n \"10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.\",\n \"B. Proceedings related to restoring the first applicant’s parental rights\",\n \"11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.\",\n \"12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.\",\n \"13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.\",\n \"14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.\",\n \"15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.\",\n \"16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC AND COMPARATIVE LAW","A. Domestic law","17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:","Section 114","“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.","(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:","1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;","2. has sexually abused a child;","3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;","4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;","5. has incited a child to socially unacceptable behaviour;","6. has abandoned a child;","7. has not provided for a child with whom he or she lives for a period exceeding three months;","8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;","9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;","10. has abused the rights of a child in another manner.","(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.","(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.","(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.","(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.","...”","Section 119","“(1) Once adoption has been established parental custody [of the adopted child] shall cease.","...”","Section 125","“(1) Adoption may be established if it is in the interest of the child.","...”","Section 129","“(1) Adoption shall require the consent of both parents, except where otherwise provided.","...”","Section 130","“Adoption shall not require the consent of a parent who is ...","1. divested of parental rights","...”","Section 135","“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”","Section 138","...","“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”","Section 139","“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”","Section 144","“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.","...”","Section 267","“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”","B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States","18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).","19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.","20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.","21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.","22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.","23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.","24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.","25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.","26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.","27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.","28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.","29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.","30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.","31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.","32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.","33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.","C. International law","34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:","Article 9","“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”","“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”","Article 21","“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:","(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”","35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:","Principle 15:","“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:"," the consent of the mother"," the consent of the father.","States may also require the consent of the child considered by the internal law as having sufficient understanding.","2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.","3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”","36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:","Article 5 – Consents to an adoption","“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:","a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;","b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;","c the consent of the spouse or registered partner of the adopter.","2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.","3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.","4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.","5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.","6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.","She relied on Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. Admissibility","1. The parties’ arguments","38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.","39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.","40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.","41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.","42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.","43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.","44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.","45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.","2. The Court’s assessment","(a) Standing of the first applicant to act on behalf of L.","46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).","47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.","48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).","49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.","50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.","(b) Applicability of Article 8 of the Convention to the present case","51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).","52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.","(c) Exhaustion of domestic remedies and compliance with the six-month rule","53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.","(d) Conclusion","54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. The parties’ submissions","55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.","56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.","57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.","2. The Court’s assessment","(a) Whether there was an interference","58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).","59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.","60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).","(b) Legality of the interference and legitimate aim","61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.","(c) Necessity in a democratic society","62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).","63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).","64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).","65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.","66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.","67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.","68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.","69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.","70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.","71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.","72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.","73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.","74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.","75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.","76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.","77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.","78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.","79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.","80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.","II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION","81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.","82. The Government contested these arguments.","83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.","84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.","III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION","85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:","“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”","A. Admissibility","86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.","87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.","88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.","89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.","B. Merits","90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.","91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.","92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).","93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.","94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.","IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION","95. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.","97. The Government deemed the sum claimed excessive.","98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.","B. Costs and expenses","99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.","100. The Government deemed the sum claimed excessive.","101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.","C. Default interest","102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC AND COMPARATIVE LAW\",\n \"A. Domestic law\",\n \"17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:\",\n \"Section 114\",\n \"“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.\",\n \"(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:\",\n \"1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;\",\n \"2. has sexually abused a child;\",\n \"3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;\",\n \"4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;\",\n \"5. has incited a child to socially unacceptable behaviour;\",\n \"6. has abandoned a child;\",\n \"7. has not provided for a child with whom he or she lives for a period exceeding three months;\",\n \"8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;\",\n \"9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;\",\n \"10. has abused the rights of a child in another manner.\",\n \"(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.\",\n \"(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.\",\n \"(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.\",\n \"(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.\",\n \"...”\",\n \"Section 119\",\n \"“(1) Once adoption has been established parental custody [of the adopted child] shall cease.\",\n \"...”\",\n \"Section 125\",\n \"“(1) Adoption may be established if it is in the interest of the child.\",\n \"...”\",\n \"Section 129\",\n \"“(1) Adoption shall require the consent of both parents, except where otherwise provided.\",\n \"...”\",\n \"Section 130\",\n \"“Adoption shall not require the consent of a parent who is ...\",\n \"1. divested of parental rights\",\n \"...”\",\n \"Section 135\",\n \"“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”\",\n \"Section 138\",\n \"...\",\n \"“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”\",\n \"Section 139\",\n \"“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”\",\n \"Section 144\",\n \"“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.\",\n \"...”\",\n \"Section 267\",\n \"“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”\",\n \"B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States\",\n \"18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).\",\n \"19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.\",\n \"20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.\",\n \"21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.\",\n \"22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.\",\n \"23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.\",\n \"24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.\",\n \"25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.\",\n \"26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.\",\n \"27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.\",\n \"28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.\",\n \"29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.\",\n \"30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.\",\n \"31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.\",\n \"32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.\",\n \"33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.\",\n \"C. International law\",\n \"34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:\",\n \"Article 9\",\n \"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”\",\n \"“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”\",\n \"Article 21\",\n \"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:\",\n \"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”\",\n \"35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:\",\n \"Principle 15:\",\n \"“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:\",\n \" the consent of the mother\",\n \" the consent of the father.\",\n \"States may also require the consent of the child considered by the internal law as having sufficient understanding.\",\n \"2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.\",\n \"3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”\",\n \"36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:\",\n \"Article 5 – Consents to an adoption\",\n \"“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:\",\n \"a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;\",\n \"b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;\",\n \"c the consent of the spouse or registered partner of the adopter.\",\n \"2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.\",\n \"3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.\",\n \"4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.\",\n \"5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.\",\n \"6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.\",\n \"She relied on Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. Admissibility\",\n \"1. The parties’ arguments\",\n \"38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.\",\n \"39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.\",\n \"40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.\",\n \"41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.\",\n \"42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.\",\n \"43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.\",\n \"44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.\",\n \"45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.\",\n \"2. The Court’s assessment\",\n \"(a) Standing of the first applicant to act on behalf of L.\",\n \"46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).\",\n \"47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.\",\n \"48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).\",\n \"49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.\",\n \"50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.\",\n \"(b) Applicability of Article 8 of the Convention to the present case\",\n \"51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).\",\n \"52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.\",\n \"(c) Exhaustion of domestic remedies and compliance with the six-month rule\",\n \"53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.\",\n \"(d) Conclusion\",\n \"54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.\",\n \"56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.\",\n \"57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.\",\n \"2. The Court’s assessment\",\n \"(a) Whether there was an interference\",\n \"58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).\",\n \"59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.\",\n \"60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).\",\n \"(b) Legality of the interference and legitimate aim\",\n \"61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.\",\n \"(c) Necessity in a democratic society\",\n \"62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).\",\n \"63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).\",\n \"64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).\",\n \"65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.\",\n \"66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.\",\n \"67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.\",\n \"68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.\",\n \"69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.\",\n \"70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.\",\n \"71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.\",\n \"72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.\",\n \"73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.\",\n \"74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.\",\n \"75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.\",\n \"76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.\",\n \"77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.\",\n \"78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.\",\n \"79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.\",\n \"80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\",\n \"81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.\",\n \"82. The Government contested these arguments.\",\n \"83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\",\n \"84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.\",\n \"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\",\n \"85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:\",\n \"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\",\n \"A. Admissibility\",\n \"86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.\",\n \"87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.\",\n \"88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.\",\n \"89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.\",\n \"B. Merits\",\n \"90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.\",\n \"91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.\",\n \"92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).\",\n \"93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.\",\n \"94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.\",\n \"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"95. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\",\n \"97. The Government deemed the sum claimed excessive.\",\n \"98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.\",\n \"B. Costs and expenses\",\n \"99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.\",\n \"100. The Government deemed the sum claimed excessive.\",\n \"101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.\",\n \"C. Default interest\",\n \"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":0,"numItemsPerPage":100,"numTotalItems":1053,"offset":0,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTcyMjAyOTA0NCwic3ViIjoiL2RhdGFzZXRzL01haG1vdWRBbHkvTGV4QWJTdW1tIiwiZXhwIjoxNzIyMDMyNjQ0LCJpc3MiOiJodHRwczovL2h1Z2dpbmdmYWNlLmNvIn0.3bSXFI1x2GQ2RRSjbyjjrIZDO5fqwaNsnS3-rMhlfk-gabUed1-N58Pq5z-KKzm2l6b__gphFLB6y8emOxEKAA","displayUrls":true},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false}">
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1 | M.H. and Croatia | 18 November 2021 | The applicants were a family of 14 Afghan citizens (a man, his two wives, and their 11 children). The case concerned the death of the first and second applicants’ six-year-old daughter, who was hit by a train after allegedly having been denied the opportunity to seek asylum by the Croatian authorities and ordered to return to Serbia via the tracks. It also concerned the applicants’ detention while seeking international protection. | The Court held, in particular, that there had been: a violation of Article 2 (right to life) of the Convention, on account of the ineffective investigation into the child’s death; a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, in respect of the child applicants, who had been kept in an immigration centre with prison-type elements for more than two months in material conditions adequate for the adult applicants; and a violation of Article 5 § 1 (right to liberty and security) of the Convention, in respect of all the applicants, on account of the failure to demonstrate required assessment, vigilance and expedition in proceedings in order to limit the asylum seekers’ family detention as far as possible. The Court also held that there had been a violation of Article 4 (prohibition of collective expulsions of aliens) of Protocol No. 4 to the Convention, on account of the summary return of six of the children and their mother by the Croatian police outside official border crossing and without prior notification of the Serbian authorities. | Accompanied migrant minors in detention | Right to life | [
"2. The applicants, who had been granted legal aid, were represented by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb.",
"3. The Government were represented by their Agent, Ms S. Stažnik.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"Background to the case",
"5. The applicants are an Afghan family of fourteen. The second applicant is the father of the family. The first and third applicants are his wives. The remaining applicants are the children of the first and second applicants, and of the second and third applicants. Their details are set out in the appendix.",
"6. According to the applicants, in 2016 they left their home country, Afghanistan. Before coming to Croatia, they travelled through Pakistan, Iran, Turkey, Bulgaria and Serbia.",
"Events of 21 November 2017",
"7. According to the applicants, on 21 November 2017 the first applicant and her six children (the ninth, tenth, twelfth, thirteenth and fourteenth applicants and MAD.H.), entered Croatia from Serbia together with one adult man named N. The other applicants remained in Serbia. The Croatian police officers approached the group while they were resting in a field. The group told the police officers that they wished to seek asylum, but the officers ignored their request, ordered them to get in the vehicle and took them to the border. At the border the police officers told them to go back to Serbia by following the train tracks. The group started walking and after several minutes a train passed and hit one of the children, MAD.H. The police officers with whom they had previously been talking had taken them to the Tovarnik railway station where a doctor established that MAD.H. had died. The group then returned to Serbia.",
"8. According to the Government, at around 8 p.m. on 21 November 2017 the Croatian border police officers spotted a group of migrants with a thermographic camera while they were in Serbian territory, 300 metres from the Croatian-Serbian border. They were walking along the train tracks, using them as a guide for the direction to reach Croatia. The area was under constant surveillance owing to the frequent attempts by migrants to illegally cross the border there. At that moment a train appeared, travelling from Croatia to Serbia. The police officers heard the train sounding its horn and braking. Shortly afterwards, a man and a woman came running to the border, carrying a child with visible head injuries. The police officers immediately called an ambulance and transported the woman and the child to the car park at Tovarnik railway station. The rest of the group stayed at the border without entering Croatia. The emergency medical team attempted to resuscitate the child, but at 9.10 p.m. the doctor established that she had died. The first applicant voluntarily returned to the border to the other members of the group and they all returned to Šid in Serbia. None of them sought asylum from the Croatian authorities.",
"Criminal investigation into the death of MAD.H.",
"9. MAD.H.’s death was heavily covered by the national and international media.",
"10. On 22 December 2017 the lawyer S. Bezbradica Jelavić (hereinafter S.B.J.) lodged a criminal complaint on behalf of the first and second applicants and five of the child applicants against unidentified Croatian border police officers, on charges of causing death by negligence, abuse of office and authority, torture and other cruel, inhuman and degrading treatment and breaching the rights of the child. The complaint stated that on the night of 21 November 2017, after encountering them on Croatian territory, the Croatian police officers had denied the first applicant and her six children any possibility of seeking asylum, and had ordered them to return to Serbia by following the train tracks, after which MAD.H. had been hit by a train and died.",
"11. On 30 January 2018 the police reported to the Vukovar County State Attorney’s Office that the recordings of the thermographic camera by means of which the applicants had been spotted could not be submitted because the storage system had been broken at the material time. They enclosed statements of police officers on duty on 21 November 2017 and of the doctor who had attempted to resuscitate the child.",
"According to the report submitted on 22 November 2017 by police officers A., B. and C., at around 8 p.m. the previous day, while conducting surveillance of the Croatian-Serbian border by using a thermographic camera, they had spotted a group of persons some 300 metres inside Serbian territory. After about fifteen seconds they heard a train passing in the direction of Serbia, sounding its horn and braking. A man and a woman then came running to the border carrying a child with visible head injuries. The officers immediately called an ambulance. Officers A. and B. took the woman and the child by car to Tovarnik railway station, while officer C. and the other police officers who had arrived in the meantime stayed at the border with the rest of the group.",
"On 16 January 2018 M.E., the doctor who had attempted to resuscitate MAD.H., stated that when she arrived at Tovarnik railway station at 8.36 p.m., there had been several police officers and a police van with several migrants inside. Next to the van was a man holding a child.",
"12. On 23 January 2018 the Croatian Ombudswoman ( Pučka pravobraniteljica Republike Hrvatske ) sent a letter to the State Attorney of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) informing him that she had conducted an inquiry into MAD.H.’s death. She noted that the applicants and the police officers had reported differently on the sequence of events and that there had been no thermographic camera recordings of the event, as had been the situation in previous cases in which she had sought to obtain such recordings. She suggested that the contact between the applicants and the police before the train had hit MAD.H. be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 104 below).",
"13. On 9 February 2018 the Vukovar County State Attorney’s Office heard police officers B. and C. They stated that once the group of migrants had come within approximately 50 metres of the border, all three police officers came to the border and made signals to the group with lights and sirens, warning them not to cross it. Seeing their signals, the group had not entered Croatian territory; they had turned back, and soon afterwards the police officers had heard the train braking. They further stated that the thermographic camera by means of which they had spotted the applicants had no capacity to store content. The only camera with storage capacity was the one installed at Tovarnik railway station, controlled by police officer D.",
"14. On 9 February 2018 the train driver submitted that some 100 metres after entering Serbian territory he had spotted a group of migrants walking along the train tracks in the direction of Šid. He had sounded the horn and braked, but one child had not moved from the tracks and the train had hit her.",
"15. On 16 February 2018 the Vukovar County State Attorney’s Office heard police officer D., who was monitoring the Croatian-Serbian border with two cameras on the date in question. Around 8 p.m. a colleague informed him that a train had stopped close to the tracks. He pointed his camera in that direction and saw a train in Serbian territory and two persons approaching the border. He did not know what exactly had happened because at that time he had not had the cameras directed towards that area. He submitted that both cameras had been broken for one year before the event, that they were still out of order, and that therefore it was not possible to view or download their recorded content.",
"16. On 31 March 2018 the investigating judge of the Vukovar County Court heard the first applicant. She submitted as in paragraph 7 above and added that her husband, the second applicant, had not been with them that night but had stayed in Serbia.",
"On the same day the second applicant submitted that he had been with the group on the night in question when they had crossed the Croatian border and were returned by the Croatian police.",
"On the same day the first and second applicants informed the investigating judge that they had signed a power of attorney in favour of the lawyer S.B.J., while they were in Serbia.",
"17. On 14 April 2018 S.B.J., on behalf of the applicants, asked the Vukovar County State Attorney’s Office about the progress of the investigation. She proposed investigating the “loss” of recordings by the thermographic cameras, which could have helped establish whether the applicants had entered Croatian territory. On 19 April 2018 the State Attorney’s Office refused to provide any information to the lawyer on the grounds that she had no valid power of attorney to represent the applicants. On 24 April 2018 S.B.J. submitted that her power of attorney was valid, and that on 31 March 2018 the first and second applicants had confirmed to the investigating judge that they had signed the power of attorney in her favour (see paragraph 16 above).",
"18. On 17 May 2018 the Vukovar Criminal Police forwarded to the Vukovar County State Attorney’s Office documents obtained from Interpol Belgrade in relation to the events of 21 November 2017.",
"According to a note drawn up by the Serbian police on 22 November 2017 at 1.30 a.m., RA.H., the thirteenth applicant, submitted that on 21 November 2017 he and his family had entered Croatian territory. They had been walking for several hours when the police had stopped them, made them board a van, transported them to the border and told them to return to Serbia by following the train tracks.",
"According to the documents concerning the on-site inspection, the train accident occurred some 200 metres from the border with Croatia.",
"19. On 1 June 2018 the Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminala – “the OSCOC”) rejected the applicants’ criminal complaint against police officers A., B. and C. The decision was served on S.B.J. as the applicants’ representative. The relevant part of the decision reads:",
"“The information gathered indicated that on the critical occasion the suspects – the police officers of the Tovarnik border police station ... – were [on duty] at surveillance point no. 2 on the Tovarnik-Šid railway line. With the help of a manual thermographic camera – which, as transpires from the information gathered, did not have the technical facility for storing content – they spotted a group of persons by the train tracks in Serbian territory. The group did not enter Croatian territory, nor did the suspects have any direct contact with them prior to the train hitting the child MAD.H. ...",
"In the present case, during the incident in question the suspects were conducting surveillance of the State border, which includes controlling and protecting the State border. The suspects were conducting those tasks in accordance with the law and international standards.",
"Relying on the results of the proceedings, and having regard in particular to the statements of presumed witnesses – the police officers who were on duty on the critical occasion – who gave concurring statements, whereas the statements of the witnesses [the first, second and thirteenth applicants] differed as regards crucial facts and contradicted the other information gathered, it does not transpire that the suspects conducted actions in their service in respect of [the applicants] and the late MAD.H., or failed to conduct any due action, which would have had the consequence of violating any of their rights, that is to say of having had any consequences detrimental to the [applicants] and MAD.H. ...”",
"20. On 14 June 2018 the applicants took over the prosecution and asked the investigating judge of the Osijek County Court ( Županijski sud u Osijeku ) to conduct an investigation. They submitted that the OSCOC had not explained why their statements had been contradictory. They proposed obtaining recordings of the thermographic cameras, an expert report on their functioning, whether they had recorded the events of 21 November 2017 and whether their recorded content had been deleted, the GPS location of the suspects and the applicants, Croatian police instructions on practice in dealing with illegal migrants, and reports of national and international organisations on Croatian police practice vis-à-vis asylum-seekers. Lastly, they submitted that the Serbian authorities had established that the Croatian authorities had forcefully returned the first applicant and her children to Serbia on 21 November 2017 in breach of the readmission agreement between the two countries.",
"21. On 22 August 2018 the investigating judge dismissed the applicants’ request on the grounds that the allegations against the three police officers had not been supported by evidence. The evidence gathered showed that the group had never crossed the border and entered Croatia, talked to the Croatian police officers or sought asylum. The police officers had lawfully deterred the applicants from crossing the border by signalling to them with lights and lamps not to enter and their conduct had been unrelated to the train hitting the child. The first and second applicants’ statements had been contradictory as regards the relevant facts, since the second applicant had stated that he had been with the group at the material time, whereas according to the first applicant and the Serbian police reports, the second applicant had stayed in Serbia.",
"22. On 30 August 2018 the applicants lodged an appeal with the Osijek County Court appeal panel.",
"23. Meanwhile, on 6 April 2018, they had lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining, inter alia, of the lack of an effective investigation into the death of MAD.H.",
"24. On 18 December 2018 the Constitutional Court examined the complaint under the procedural limb of Article 2 of the Convention and found that the investigation into the death of MAD.H. had been effective. The competent authorities made inquiries into the applicants’ criminal complaint of December 2017, examined all possible leads and established that there was no reasonable suspicion that the Croatian police officers had committed criminal offences in respect of the applicants or the late MAD.H. The applicants’ criminal complaint had been rejected within the statutory time-limit, after which they had taken over the prosecution. The applicants had an effective remedy for their complaint concerning the alleged ineffectiveness of the investigation; they could have sought information from the competent State Attorney about the actions undertaken in relation to their criminal complaint, and they were also able to lodge a constitutional complaint, which was examined.",
"25. Three Constitutional Court judges appended a separate opinion to that decision, stating that the examination of the effectiveness of the investigation into the death of a child should not have been reduced to mere procedural formalism. The authorities had not considered the possibility that the discrepancy between the first and second applicants’ statements had been the result of a translation error.",
"In the three judges’ view, it was not credible that a group of migrants would simply turn around and give up on their plan to cross the border owing to the mere presence of police officers, without trying to communicate with them in any manner or express their wish to seek asylum, as usually happened at that border crossing point.",
"The three judges further noted that the investigating authorities had ignored the fact that the Ministry of the Interior of the Republic of Serbia had publicly stated that “the Croatian police did not comply with the readmission agreement when forcefully returning the family of ... MAD.H., who died in a train accident ... immediately after the Croatian police officers had forcefully tried to return her to Serbia” and that “at the meeting held concerning the event, the representatives of the [Serbian] Border Police Administration had informed the Croatian [authorities] of their point of view, namely that the family of the late child had been transferred to Serbia from Croatia contrary to the agreement between the two countries”. The three judges noted that the latter statement had been in the case file, but that the investigating authorities had not referred to it in their decisions.",
"Finally, the investigating authorities had not explored whether the impugned events had been recorded by any kind of recording device. It did not transpire from the case file whether they had tried to verify the location of the applicants and the police officers by using their mobile telephone signals, which had been a common and easy investigative method. The Croatian Ombudswoman had pointed to the same deficiencies in the investigation in question, as well as to deficiencies in other cases concerning asylum-seekers in Croatia (see paragraphs 12 above and 104 below).",
"26. On 20 December 2018 the Osijek County Court appeal panel dismissed the applicants’ appeal (see paragraph 22 above). It held that the case file did not contain any information to support the accusations against the three police officers.",
"27. On 4 March 2021 the Constitutional Court dismissed a subsequent constitutional complaint lodged by the applicants against the Osijek County Court’s decision. It reiterated that the investigation into MAD.H.’s death had complied with the procedural requirements of Article 2 of the Convention. In particular, the fact that the recordings from the thermographic cameras had not been obtained had not affected the thoroughness of the investigation, as even without the recordings it was clear that MAD.H. had been hit by a train in the territory of Serbia, not Croatia. Even though there had been some delay in the applicants’ ability to contact their lawyer upon entering Croatia (see paragraphs 56-66 below), the applicants had been able to participate effectively in the investigation. The Constitutional Court also found no breach of Article 2 of the Convention in its substantive aspect in that it had not been proven that the State authorities had been responsible for the death of MAD.H.",
"The applicants’ entry to Croatia oN 21 March 2018",
"28. On 21 March 2018 the Croatian police caught the applicants clandestinely crossing the Serbian-Croatian border and took them to Vrbanja Police Station ( Policijska uprava Vukovarsko-srijemska, Policijska postaja Vrbanja ). They were examined by a doctor and found to be in good health. The doctor noted, inter alia, that the fourth applicant was seventeen years old. The applicants did not have any identification documents with them. They signed a statement on their personal identification information and expressed a wish to seek international protection.",
"the applicants’ placement in the Tovarnik Centre",
"29. On 21 March 2018 the police issued decisions in respect of the first to fourth applicants, restricting their freedom of movement and placing them and the applicant children in a transit immigration centre in Tovarnik ( Tranzitni prihvatni centar za strance Tovarnik – hereafter “the Tovarnik Centre”) for an initial period of three months. The decisions stated that on 21 March 2018 the applicants, Afghan citizens, had expressed an intention to seek international protection in Croatia. They had not had any identification documents and their freedom had been restricted under section 54 of the International and Temporary Protection Act ( Zakon o međunarodnoj i privremenoj zaštiti; see paragraph 78 below), in order to verify their identities. On the same day the applicants were placed in the Tovarnik Centre.",
"30. On 26 March 2018 the second applicant contacted the Are You Syrious NGO via Facebook. He stated that the family was in a bad situation, locked up in their rooms without any information, and asked for help.",
"31. On 3 April 2018 the fourth applicant sent several voice messages to L.H., an employee of the Centre for Peace Studies NGO. She stated that they were being kept in prison-like conditions. They were placed in three rooms without any opportunity to see each other except during meals. They had been told that they had no lawyer in Croatia, even though the first applicant had confirmed to the officials that she had signed a paper with a lawyer in Serbia.",
"32. On 28 March and 6 April 2018, a psychologist visited the applicants in the Tovarnik Centre. The fourth applicant, who spoke some English, translated for the others. The psychologist noted that the applicants were mourning the death of MAD.H. and that they had been experiencing fear of uncertainty. He recommended providing them with further psychological support and organising activities to occupy the children’s time. He visited them again on 13, 18 and 27 April and 2, 8, 11, 23 and 25 May 2018.",
"33. On 6 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior ( Ministar unutarnjih poslova Republike Hrvatske ) and the Head of Police ( Glavni ravnatelj policije ) concerning the applicants’ restriction of freedom of movement. She asked about the action taken to verify the applicants’ identity, which had been the reason for their placement in the Tovarnik Centre (see paragraph 105 below).",
"34. On 10 April 2018 the authorities took the applicants’ fingerprints and transmitted them to the Central Unit of Eurodac (the European Union (EU) fingerprint database for identifying asylum-seekers). The Eurodac search system identified that the applicants had entered Bulgaria on 22 August 2016. On the same day the authorities sought information from Interpol Sofia and Interpol Belgrade on the applicants’ stay in those countries, with a view to checking their identities.",
"On 23 April 2018 Interpol Sofia informed the Croatian authorities that the applicants had applied for asylum in Bulgaria and that their applications had been rejected in February and March 2017. The applicants’ names as registered in the Bulgarian system differed from those registered in the Croatian system, mostly in the suffix of their last name. In the Bulgarian system the fourth applicant was registered as being born on 16 April 2000.",
"On 30 April 2018 the Serbian authorities informed the Croatian authorities that the applicants had expressed an intention to seek international protection in Serbia, but that they had left that country on 21 March 2018.",
"35. Meanwhile, on 19 April 2018 the lawyer I.C. asked the Osijek Administrative Court ( Upravni sud u Osijeku ) to restore the proceedings concerning restrictions on the applicants’ freedom of movement to the status quo ante ( prijedlog za povrat u prijašnje stanje ) and to authorise the applicants to lodge administrative actions against them.",
"She submitted that on 30 March 2018 she had been appointed as the applicants’ legal aid lawyer in the proceedings concerning their application for international protection (see paragraph 51 below). On 3 April 2018 she had inspected the case file and discovered the decisions of 21 March 2018 restricting the applicants’ freedom of movement. On 12 April 2018 she visited the applicants in the Tovarnik Centre, who told her that they had not been served with the decisions and could not understand them. She inspected the case file again and learned that the disputed decisions and the document informing the applicants of their right to legal aid issued in the Croatian language had not been served on them with the help of an interpreter for Pashto or Farsi, which languages the applicants could understand.",
"I.C. further submitted that the applicants had not hidden their identity and had given their fingerprints to the authorities and that placing the applicants in a closed-type immigration centre had been in breach of Article 3 of the Convention.",
"36. On 10 May 2018 Vrbanja Police Station replied to the applicants’ administrative actions. The mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities. They had not been registered in the Schengen or Eurodac systems. The applicants said to the Croatian authorities that they had not sought asylum in other countries, whereas it had emerged that they had applied for asylum in Bulgaria and Serbia. Vrbanja Police Station deemed that restricting the applicants’ freedom of movement had also been justified by a flight risk pursuant to section 54(2)(1) of the International and Temporary Protection Act, in that it was possible that the applicants would leave Croatia for other countries.",
"37. By decisions of 11 and 14 May 2018, the Osijek Administrative Court allowed the applicants’ administrative actions as having been brought in due time. It found that even though the case file indicated that the decisions restricting the applicants’ freedom of movement had been served on them on the day they had been issued, there was no evidence that the applicants had been apprised of the decisions in a language they could understand.",
"38. On 17 May 2018 the lawyer S.B.J. informed the Osijek Administrative Court that she was taking over as the applicants’ representative in the proceedings. She submitted that as a result of the Court’s intervention on 7 May 2018 she had finally been allowed to meet the applicants (see paragraph 66 below). She also submitted a copy of the citizenship certificate issued to the first and second applicants and explained that the differences in the applicants’ names had been the result of the transliteration and translation of Afghan names into different languages, a common problem as regards Afghan names (see paragraph 116 below).",
"39. On 18 May 2018 the Osijek Administrative Court heard the first, second, third and fourth applicants individually.",
"They submitted that the family had been placed in three rooms in the Tovarnik Centre and that they had been kept locked up except during meals. As of recent the rooms had been locked only during the night, but they were still not allowed to leave. The children, traumatised by all the border crossings, encounters with the police and their sister’s death, were suffering. The psychologist who had visited them did not speak English, Farsi or Pashto. They had not been served the decisions restricting their freedom of movement and had not known of their existence until I.C. informed them about thereof. The fourth applicant submitted that she did not know her exact date of birth, but that she had probably turned eighteen one month earlier.",
"40. On 22 May 2018 the Osijek Administrative Court partly allowed the third applicant’s administrative action and ordered that she and her two children (the seventh and eight applicants) be released from the Tovarnik Centre the following day. The third applicant asked not to be transferred from the Centre without the rest of her family. The relevant part of that judgment read as follows:",
"“... this court finds that at the time of the disputed decision the plaintiffs’ restriction of freedom of movement was justified ...",
"However, even with all the conditions mentioned [by the State], this court cannot disregard the fact that [the Tovarnik Centre] is a prison-type facility which in the longer term is not an environment suitable for children ..., aged one and three.",
"If the most severe type of measure is not to be arbitrary, it must be closely and consistently related to the purpose for which it had been ordered, and the duration of application of such measures must not exceed the time logically necessary for obtaining the desired aim ...",
"Thus, if the defendant suspects any kind of abuse of the international protection system, based on the lack of kinship between the children and the adults, the defendant is obliged to obtain such data urgently. In the present case the identity and kinship of the child born on 1 January 2017 was easily accessible because she was born in Bulgaria, an EU Member State ... During these proceedings the court was not presented with any evidence that the third applicant is not the mother of [the two children]. The court heard the third applicant ... and concluded that she was illiterate and uneducated and unable to understand her current life circumstances.",
"Furthermore, under section 52, subsection 3(8), of the International and Temporary Protection Act, persons seeking international protection are required to stay in Croatia during the proceedings. The case file contains a decision of 28 March 2018 dismissing the third applicant’s application for international protection...The court therefore no longer finds justified the existence of the reasons set out in section 54(2)(1) of the Act (and the related flight risk). The very fact that the request was already dismissed means that the other grounds from section 54(2)(2) of the Act relating to the establishing of identity and citizenship is also not founded ...",
"... keeping persons in an immigration centre solely on the basis of their irregular entry into Croatia is not legally justified, and the defendant did not submit to the court any kind of evidence in support of the allegation that the measure entailing restriction of freedom of moment by placing the [third applicant and her two children] in the Tovarnik Centre is still necessary ...”",
"41. On 24 and 25 May 2018, in different formations, the Osijek Administrative Court dismissed the remaining applicants’ administrative actions as unfounded.",
"The court deemed that the restriction of their freedom of movement was still justified because it had not yet been possible to establish their identity. They were not registered in the Schengen or the Eurodac systems and they had used different identities in their applications for international protection in other countries. The flight risk could be established on the basis of the first applicant’s statement of 23 March 2018 that the family had spent around a year in Serbia without seeking international protection because there were no job opportunities there, which was untrue because they had sought asylum both in Serbia and Bulgaria and had repeatedly illegally crossed the Croatian border. Additionally, the applicants had instituted proceedings for international protection and were required to stay in Croatia until the end of those proceedings.",
"The court further stated that the Tovarnik Centre had met the minimum requirements for short-term placement of a family with children. The child applicants were accompanied by their parents and the Centre had been accommodating only one other family with small children. From the photographs submitted it concluded that the Centre had facilities and activities capable of keeping the children occupied, and that the applicants had been provided with the necessary clothing, medications, access to hygiene products, fresh air and medical assistance.",
"The overall conditions in the applicants’ case were Article 3 compliant, given that they had left their home country almost two years previously and that during the long journey the children had undoubtedly been exposed to numerous stressful factors owing to the presence of the police. Even though the death of MAD.H. had undoubtedly caused them immense pain, that had nothing to do with the conditions of their placement in the Tovarnik Centre.",
"42. The first, second and fourth applicants lodged appeals with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), which were dismissed on 3 October, 14 November and 12 December 2018, respectively.",
"43. Meanwhile, on 6 April 2018, the applicants had also lodged a constitutional complaint in which they complained, inter alia, of the unlawfulness, disproportionality and inadequate conditions of their placement in the Tovarnik Centre, under Article 3, Article 5 § 1 and Article 8 of the Convention; their inability to contact their lawyer S.B.J., and their refoulement by the Croatian police, who had denied them the opportunity to seek asylum contrary to Article 4 of Protocol No. 4.",
"44. On 7 December 2018 the applicants made further submissions to the Constitutional Court, complaining, inter alia, of a breach of Article 5 § 4 of the Convention in that they had not been able to challenge their placement in the Tovarnik Centre until 19 April 2018, and that the Osijek Administrative Court had decided on their case only after they had already spent two months in detention.",
"45. On 18 December 2018 the Constitutional Court examined the applicants’ constitutional complaint concerning their placement in the Tovarnik Centre. It found that even though the Centre was a closed-type facility, it was equipped with all the requisite amenities for accommodating children with parents. The children were able to play and spend time in the open air from 8 a.m. to 10 p.m. and had access to a psychologist and a social worker.",
"The Constitutional Court further found that the length of the children’s placement in the Centre (two months and fourteen days) had been lawful because under domestic law, the maximum period allowed was three months, and that it had been justified by the need to verify their identities and kinship with the adult applicants and the need to prevent the criminal offence of human trafficking. Although it appeared that the child applicants had suffered stress which could affect their development, the Constitutional Court did not find that their placement in the Tovarnik Centre had caused any additional stress with traumatic consequences, given that at that time the children had already been travelling for around two years through different countries. It held that the situation did not attain the requisite threshold of severity under Article 3 of the Convention.",
"As regards the adult applicants, the Constitutional Court deemed that their placement in the Centre could have caused a sense of helplessness, panic and frustration, but that the fact that they had not been separated from their children had had a soothing effect, and that therefore the threshold of severity under Article 3 of the Convention had not been attained.",
"The Constitutional Court noted that on their placement in the Tovarnik Centre all the adult applicants had been informed of their right to legal aid and had chosen I.C. to represent them. The lack of contact between the applicants and their lawyer S.B.J. from 21 March to 7 May 2018 had not been unreasonably long in view of the number of applicants and the need to accommodate them in the immigration centre, as well as of the availability of an interpreter and other staff. That circumstance had not affected the applicants’ right of access to effective legal assistance concerning their placement in the Tovarnik Centre.",
"Lastly, the conditions of the applicants’ placement in the Tovarnik Centre did not fall within the scope of Article 5 § 1 (f) of the Convention and the facts of the case did not indicate any possible violation of Article 4 of Protocol No. 4.",
"46. On 11 July 2019 the Constitutional Court examined the first, second and fourth applicants’ constitutional complaints lodged against the High Administrative Court’s decisions of 3 October, 14 November and 12 December 2018 (see paragraph 42 above).",
"The Constitutional Court held that the conditions of their placement in the Tovarnik Centre had not been in breach of Article 3 of the Convention. The Centre had been equipped for accommodating families; the applicants had been provided with clothes, toiletries and food; the children had not been separated from their parents; they had been able to play in the open air; the rooms in which they had been placed had not been locked; and they had been visited by a psychologist and a social worker. Even though the applicants had suffered as a result of certain stressful events, their placement in the Centre could not have caused them additional stress with particularly traumatic consequences.",
"The Constitutional Court further held that there had been no breach of Article 5 §§ 1 (f), 2 and 4 of the Convention. In particular, it held that the applicants had been deprived of their liberty in accordance with Article 5 § 1 (f) of the Convention, having regard that there were proceedings deciding on the lawfulness of their entry into the country and on their deportation. Their detention had been based on section 54(6) of the International and Temporary Protection Act, because their identity and citizenship and the circumstances on which they had based their application for international protection could not have otherwise been established, in particular having regard to the risk of flight. The applicants had been informed about the reasons for their deprivation of liberty and had been represented by a lawyer. The Osijek Administrative Court and the High Administrative Court had provided relevant and sufficient reasons for their decisions upholding the first, second and fourth applicants’ deprivation of liberty.",
"47. Meanwhile, on 4 June 2018 the applicants were transferred to an open-type centre in Kutina. Having tried to leave Croatia for Slovenia clandestinely on several occasions, they ultimately managed to do so and their subsequent whereabouts are unknown.",
"Proceedings concerning international protection",
"48. On 23 March 2018 the applicants submitted applications for international protection.",
"49. On the same day the Ministry of the Interior heard the first, second and third applicants individually in the presence of a Farsi interpreter. The applicants submitted that they had left Afghanistan in 2016 owing to their fear of the Taliban. Prior to coming to Croatia, they had spent about nine months in Bulgaria and then a year in Serbia in different migrant camps. They had not sought asylum in those countries. Even though they considered Serbia a safe country, they had not wished to stay there because, in their view, Serbia was in Asia and there were no job opportunities there. They wanted to live in Europe so that the children could go to school and have a good life.",
"The first applicant stated that the signature on the power of attorney of 18 December 2017 under which she had allegedly authorised S.B.J. to represent her had not been hers. She had been in Serbia at that time and three persons from Croatia had approached her and talked to her about their daughter’s death and then she had signed something.",
"50. On 28 March 2018 the Ministry of the Interior declared the applicants’ applications for international protection inadmissible on the grounds that they should be returned to Serbia, which was considered a safe third country.",
"51. The decisions were served on the applicants on 30 March 2018 when the applicants were informed of their right to free legal aid and given a list of legal aid lawyers. The applicants appointed the lawyer I.C. to represent them; I.C. visited them in the Tovarnik Centre on 2 April 2018.",
"52. On 9 April 2018 the applicants lodged administrative actions with the Osijek Administrative Court against the decisions dismissing their applications for international protection.",
"53. On 11 June 2018 the Osijek Administrative Court heard the first, second and third applicants.",
"The first applicant submitted that when lodging her application for international protection on 23 March 2018 she had been scared owing to the presence of the police. She was illiterate and had never gone to school. She had told the interviewers that she had a lawyer who had represented her deceased daughter MAD.H. She had asked that her lawyer be called to the Tovarnik Centre, but she had been called a liar and told that she did not have a lawyer in Croatia, only in Serbia.",
"54. On 18 June and 2 July 2018, the Osijek Administrative Court dismissed the applicants’ administrative actions. The High Administrative Court dismissed their further appeals.",
"55. On 4 March 2021 the Constitutional Court upheld the applicants’ constitutional complaint, quashed the judgments of the High Administrative Court and the Osijek Administrative Court and remitted the case to the Osijek Administrative Court. It found that the authorities had failed to properly examine whether Serbia could be considered a safe third country.",
"Contact between the applicants and THEIR lawyer",
"56. On 21 March 2018, after being informed by two NGOs that the applicants were in the Vrbanja Police Station, the lawyer S.B.J. submitted a power of attorney which the first and second applicants had signed in her favour in December 2017 in Serbia in the presence of the Centre for Peace Studies NGO. She asked the police to inform the applicants that she was trying to contact them. The following day S.B.J. submitted the power of attorney to the Asylum Department of the Ministry of the Interior and requested leave to represent the applicants.",
"57. On 28 March 2018 the Ministry of the Interior informed S.B.J. that she could not represent the applicants in the international protection proceedings since the power of attorney she had submitted was invalid. They added that on 23 March 2018 the first applicant had stated that the signature on the power of attorney was not hers and that she had been in Serbia at the time.",
"58. On 28 March 2018 an employee of the Centre for Peace Studies NGO, issued a written statement confirming that on 18 December 2017 he and two other employees of that NGO, together with A.C., a doctor from Médecins sans Frontières, had met the first, second and fourth applicants in Serbia and explained to them the legal procedures in Croatia. They suggested that S.B.J. represent them in all proceedings before the Croatian authorities. The first applicant had then signed the power of attorney.",
"59. On the same day three employees of the Centre for Peace Studies NGO asked to visit the applicants in the Tovarnik Centre in order to provide them with legal assistance and to clarify the circumstances of their signing of the power of attorney, which they had witnessed. The Ministry of the Interior denied them access to the applicants on security grounds.",
"60. On 29 March 2019 S.B.J. again asked the Ministry of the Interior to be allowed to meet the applicants and represent them in the international protection proceedings.",
"61. On 3 April 2018 the fourth applicant contacted S.B.J. via Viber. S.B.J. replied that she had been helping the fourth applicant’s family with their asylum claims, and that she was requesting an interim measure from the Court and lodging a constitutional complaint.",
"62. Meanwhile, the police and the Vukovar Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Vukovaru ) initiated an inquiry into the power of attorney which the first and second applicants had signed in favour of S.B.J., on suspicion that the signatures had been forged.",
"On 31 March 2018 the investigating judge of the Vukovar County Court heard the first and second applicants, who stated that they had signed the impugned power of attorney while they were in Serbia.",
"On 3 April 2018 the Vukovar Municipal State Attorney informed the police that, having regard to the applicants’ statement, there had been no reasonable suspicion that a criminal offence had been committed and that therefore she would not request a graphological expert assessment.",
"On 4 April 2018 a meeting was held between the Vukovar Municipal State Attorney and two police officers, during which it was agreed that a graphological expert assessment would be commissioned and that the officers would obtain the original copy of the power of attorney from S.B.J. for that purpose.",
"On 5 April 2018 an officer from the Vukovar Criminal Police arrived at S.B.J.’s law firm and asked her to hand over the original of the power of attorney signed in her favour by the first applicant.",
"On 11 April 2018 the forensics department of the Ministry of the Interior reported that the first and second applicants had probably not signed the power of attorney in question.",
"On 12 April 2018 an officer from the Vukovar Police Department interviewed S.B.J. and two other lawyers from her law firm as regards the first and second applicants’ signing of the power of attorney. On 18 April 2018 he also interviewed a trainee from that law firm.",
"On 23 April 2018 S.B.J. obtained an expert report from a permanent court expert in graphology, who concluded that it could not be ruled out that the first applicant had signed the power of attorney and that the second applicant had probably signed the power of attorney.",
"There is no information about the subsequent steps undertaken in the investigation.",
"63. On 6 and 9 April 2018 S.B.J. again asked the Ministry of the Interior to be allowed to contact the applicants, but to no avail. The Centar za mirovne studije NGO also asked to be allowed to contact the applicants, no more successfully.",
"64. On 19 April 2018 the Croatian Bar Association ( Hrvatska odvjetnička komora ) sent a letter to the Head of Police stating that the police actions against S.B.J. had been in breach of the Lawyers Act ( Zakon o odvjetništvu ) and had impeded the independence of the legal profession as guaranteed by the Constitution. Restricting contact between the lawyer and her clients was contrary to the Convention and the International and Temporary Protection Act. The Croatian Bar Association invited the police to immediately allow S.B.J. to contact the applicants.",
"65. On 2 May 2018 the Croatian Children’s Ombudswoman, an independent and impartial human rights officer, visited the applicants in the Tovarnik Centre in order to ascertain the circumstances of their legal representation and the case pending before the Court. The applicants had expressly confirmed to her that they were familiar with the fact that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to meet her and be represented by her.",
"66. On 7 May 2018 S.B.J. met the applicants in the Tovarnik Centre and they signed a new power of attorney in her favour. They also signed a statement confirming that in December 2017 they had signed a power of attorney in her favour for the purposes of lodging a criminal complaint concerning the death of their daughter, as well as for other proceedings.",
"Requests for interim measures under Rule 39 of the Rules of Court",
"67. On 4 April 2018 S.B.J. submitted a request under Rule 39 of the Rules of Court, asking the Court to allow the applicants to contact her, to order their release from the Tovarnik Centre and to prevent their removal to Serbia.",
"68. On 6 April 2018 the Court temporarily granted the interim measure under Rule 39 until 27 April 2018, and indicated to the Government that the applicants should be placed “in such an environment which complies with requirements of Article 3 of the Convention, taking into account the presence of minors (see especially Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012)”. The Court asked the Government to submit, inter alia, whether the Tovarnik Centre was adapted to the accommodation needs of families with small children, and whether, having regard to the Court’s case-law, they had taken all necessary measures to ensure that the environment where the applicants were placed complied with the requirements of Article 3 of the Convention.",
"The Court adjourned the decision on the interim measure in respect of the lack of access to their lawyer and the risk they would face if expelled to Serbia and requested factual information from the parties on, inter alia, whether practical arrangements had been made in order to allow the applicants to contact representatives, if they so wished, to seek legal advice and initiate legal proceedings, and whether the authorities had allowed S.B.J. and/or the Centre for Peace Studies NGO, to contact the applicants.",
"69. On 16 April 2018 the Government submitted numerous photographs of the Tovarnik Centre and information concerning the applicants’ placement there. They explained that the applicants had appointed I.C. as their legal aid lawyer, that the domestic authorities did not consider that S.B.J. had a valid power of attorney to represent them and that they were awaiting the outcome of the criminal investigation in that regard.",
"70. On 16 and 23 April 2018 S.B.J. submitted that she had unsuccessfully been trying to contact the applicants and that the domestic authorities were conducting a criminal investigation against her, even though the first and second applicants had confirmed to the investigating judge that they had signed the impugned power of attorney.",
"71. On 24 April 2018 the Government submitted that the applicants’ identities had still not been confirmed and that their placement in the Tovarnik Centre was still necessary. They further submitted that S.B.J. had not been present when the applicants had allegedly signed the power of attorney and that she had never met the applicants in person.",
"72. On 25 April 2018 the Court prolonged the interim measure concerning the applicants’ placement in an Article 3 compliant environment until 11 May 2018. It also asked the Government to provide information on whether the applicants had been informed that S.B.J. had instituted proceedings before the Court on their behalf and whether they had accepted her legal representation for that purpose, as well as whether practical arrangements had been made to enable the applicants to meet S.B.J.",
"73. On 4 May 2018 the Government informed the Court that the applicants had confirmed that they were aware that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to be represented by her and to meet her.",
"74. On 11 May 2018 the Court prolonged the interim measure concerning the applicants’ placement in an Article 3 compliant environment until further notice. It rejected the Rule 39 request as regards the issue of the applicants’ legal representation to the extent that the matter had been resolved, as well as the Rule 39 request concerning the risk the applicants would face if expelled to Serbia, inasmuch as that issue was premature.",
"75. On 3 July 2018 the Court granted an interim measure indicating to the Government that the applicants should not be removed to Serbia.",
"76. On 14 March 2019 the Court lifted the two interim measures because the applicants had left Croatia and thus the circumstances for which the measures had been granted had ceased to exist (see paragraph 47 above)."
] | [
"RELEVANT LEGAL FRAMEWORK",
"domestic law",
"77. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette, no. 125/2011, with subsequent amendments), read as follows:",
"Article 9 § 1",
"“A criminal offence shall be deemed to have been committed in the place where the perpetrator [undertook an action] or was obliged to undertake it, and in the place where the consequence [corresponding to] the legal description of the criminal offence occurred in whole or in part ...”",
"Article 10",
"“The criminal law of the Republic of Croatia shall apply to anyone who commits a criminal offence within its territory.”",
"78. The relevant provisions of the International and Temporary Protection Act ( Zakon o međunarodnoj i privremenoj zaštiti, Official Gazette nos. 70/2015 and 127/2017) read as follows:",
"Meaning of terms",
"Section 4",
"“...",
"5. An international protection seeker (hereafter: ‘the seeker’) is a third-country national or a stateless person who expresses an intention to submit an application for international protection (hereafter: ‘the application’), until the decision on the application becomes enforceable. ...",
"...",
"12. An intention to submit an application for international protection (hereafter: ‘the intention’) is an intention expressed by a third-country national or a stateless person, orally or in written, to submit an application pursuant to section 33 of this Act.",
"...",
"16. A child is a seeker ... younger than eighteen.",
"...",
"21. A decision on an application shall become enforceable upon its delivery to the seeker, provided that an administrative action is not brought or does not have suspensive effect. If the action has suspensive effect, the decision on the application shall become enforceable upon the delivery of the first-instance judgment of the administrative court.",
"...”",
"Expressing an intention",
"Section 33",
"“(1) A third-country national or a stateless person may express an intention [to seek international protection] during border controls at the border crossing.",
"(2) If the third-country national or stateless person is already on the territory of Croatia, he or she may express such an intention to the police administration; that is, at a police station or an immigration reception centre.",
"(3) By derogation from subsection 2 of this section, such an intention may be expressed in a reception centre for seekers of international protection in extraordinary circumstances, so that access to the procedure for granting international protection is ensured.",
"(4) If a third-country national or a stateless person cannot, for justified reasons, express an intention in accordance with subsections 2 and 3 of this section, the body to which he or she expressed the intention shall be obliged to inform the Ministry within three days.",
"...",
"(8) The police officers or officials of the reception centre shall be obliged, immediately after the intention has been expressed, to take fingerprints from the seeker and his or her photograph, establish his or her identity, the way he or she arrived in Croatia, the direction of travel from his or her country of origin to Croatia and his or her personal circumstances ..., of which they shall be obliged to immediately inform the Ministry.",
"...”",
"Procedure at the border or in transit area",
"Section 42",
"“(1) The procedure for granting international protection following an expressed intention or a subsequent application at the border, or in the transit area of an airport, sea port or internal port, shall be conducted at the border crossing or in the transit area ... provided that:",
"- the seeker is provided with reception conditions set out in section 55 of this Act and",
"- the application, or subsequent application, can be dismissed as manifestly ill ‑ founded under section 38(1)(5) of this Act or declared inadmissible under section 43 of this Act.",
"(2) Organisations for protecting the rights of refugees which, on the basis of an agreement with the Ministry, provide legal counselling under section 59(3) of this Act shall have effective access to border crossings or transit areas of airports, sea ports or internal ports.",
"(3) The representative of an organisation that deals with protection of the rights of refugees, except UNHCR, may temporarily be restricted in accessing the seeker, when this is strictly necessary for protecting the national security or public order of Croatia.",
"(4) The Ministry shall decide on an application for international protection in the procedure at the border or transit area within twenty-eight days from the submission of the application.",
"(5) If a decision is not given within [twenty-eight days], the seeker shall be allowed to enter the Republic of Croatia for the purpose of conducting the procedure for international protection.",
"...”",
"Declaring inadmissible an application or a subsequent application",
"Section 43",
"“1. The Ministry shall declare an application inadmissible if:",
"...",
"(3) it is possible to apply the concept of a safe third country, pursuant to section 45 of this Act;",
"...",
"3. The decision declaring the application inadmissible ...may be challenged by an administrative action before the administrative court pursuant to section 51 of this Act. ...”",
"Legal remedy",
"Procedure before the administrative court",
"Section 51",
"“1. An administrative action lodged with the administrative court shall have suspensive effect ...",
"...",
"3. An appeal against the first-instance judgment of the administrative court shall not have suspensive effect.”",
"Rights and obligations",
"Section 52",
"“(1) The seeker has the right to:",
"1. stay [in Croatia];",
"2. freedom of movement in Croatia;",
"3. adequate reception conditions;",
"...",
"(3) The seeker is obliged to:",
"1. respect the Croatian Constitution and laws;",
"2. cooperate with the state authorities and comply with their measures and instructions;",
"3. submit to verification and establishing of identity;",
"4. submit to a medical exam;",
"5. respect the immigration reception centre’s house rules;",
"6. report to the immigration reception centre within given deadline;",
"7. appear at the interview before the Ministry and cooperate during the procedure for international protection;",
"8. stay on the territory of Croatia during the procedure for international protection;",
"9. inform the Ministry within two days after changing residence;",
"10. comply with the Ministry’s instructions and measures concerning restriction of freedom of movement.”",
"Right to stay",
"Section 53",
"“(1) A seeker shall have the right to stay in Croatia from the day of expressing an intention [to seek international protection] until the decision on his or her application becomes enforceable.",
"...”",
"Freedom of movement of seekers",
"Section 54",
"“(1) Seekers and foreigners in transit shall have the right to freedom of movement in Croatia.",
"(2) The freedom of movement of seekers may be restricted if, on the basis of all the facts and circumstances of the specific case, this is deemed to be necessary for [the purpose of]:",
"1. establishing the facts and circumstances on which the application for international protection is based, and which cannot be established without restriction of movement, in particular if it is deemed that there is a risk of flight;",
"2. establishing and verifying identity or citizenship:",
"3. protection of the national security or public order of the Republic of Croatia;",
"4. prevention of abuse of the procedure if, on the basis of objective criteria, which include the possibility of access to the procedure for granting international protection, there is a well-founded suspicion that the intention expressed during the procedure of expulsion was aimed at preventing the procedure from continuing.",
"...",
"(4) The risk of flight shall be assessed on the basis of all the facts and circumstances of the specific case, especially in view of earlier attempts to leave Croatia, the refusal to submit to verification and establishment of identity, concealment of information or providing false information on identity and/or nationality, violations of the provisions of the house rules of the reception centre, the results from the Eurodac system, and opposition to transfer.",
"(5) The freedom of movement of a seeker or foreigner in transit may be restricted by the following measures:",
"1. prohibition of movement outside the reception centre;",
"2. prohibition of movement outside a specific area;",
"3. appearance in person at the reception centre at a specific time;",
"4. handing over travel documents or tickets for deposit at the reception centre;",
"5. accommodation in a reception centre for foreigners.",
"(6) The measure of accommodation in a reception centre for foreigners may be imposed if, following an individual assessment, it is established that other measures referred to in subsection 5 of this section would not achieve the purpose of restriction of freedom of movement.",
"(7) The freedom of movement of a member of a vulnerable group may be restricted by means of accommodation in a reception centre for foreigners if, following an individual assessment, it is established that such a form of accommodation is suitable for the applicant’s personal circumstances and needs, and especially for his or her health.",
"...",
"(9) The measure of restriction of freedom of movement shall be imposed for as long as there are reasons for this as referred to in subsection 2 of this section, but for no longer than three months. Exceptionally, for justified reasons, the application of the measure of restriction of freedom of movement may be extended for no longer than three more months.",
"...”",
"Right to information and legal counselling",
"Section 59",
"“(1) [When] a third-country national or a stateless person placed in a reception centre, at the border crossing, in the transit area of an airport, seaport or internal port, wishes to express an intention [to seek international protection], the police officers shall provide to that person all the necessary information concerning the procedure for international protection in a language which that person is justifiably presumed to understand and in which he or she can communicate.",
"(2) The Ministry shall, within fifteen days from expressing the intention, inform the seeker about the way the procedure for international protection is conducted, his or her rights and obligations in those proceedings and the possibility of contacting UNHCR and other organisations that deal with protection of rights of refugees, as well as the possibility of being granted legal aid.",
"...”",
"79. The relevant provisions of the Aliens Act ( Zakon o strancima, Official Gazette nos. 130/2011, 74/2013, 69/2017 and 46/2018), in force from 1 January 2012 to 31 December 2020, read as follows:",
"Section 35",
"“A third-country national who meets the requirements for entry under the Schengen Borders Code shall be granted entry to the Republic of Croatia.”",
"Section 36",
"“(1) A third-country national who does not meet the requirements for entry under the Schengen Borders Code may be granted entry to the Republic of Croatia at a border crossing on the basis of serious humanitarian grounds, international obligations or the interest of the Republic of Croatia.",
"(2) The Ministry of the Interior shall issue a decision granting the entry referred to in subsection 1 of this section through the police station in charge of controlling the crossing of the State border.",
"(3) The decision referred to in subsection 2 of this section shall determine the purpose of the stay, the place and address of the accommodation, the period in which the person may lawfully reside in Croatia ... The decision shall be issued without hearing the third-country national, unless he or she is an unaccompanied minor.",
"...”",
"80. Under the Act confirming the Readmission Agreement between Croatia and Serbia ( Zakon o potvrđivanju Sporazuma između Vlade Republike Hrvatske i Vlade Republike Srbije o predaji i prihvatu osoba kojih je ulazak ili boravak nezakonit, Official Gazette no. 1/2010), the two countries were required to accept into their territory, at each other’s request, a foreigner or a person without citizenship who did not meet the requirements to enter or stay in the country making the request, if it was established or could reasonably be assumed that the person had entered that country directly from the country receiving the request.",
"81. Pursuant to the Regulation on the internal structure of the Ministry of the Interior ( Uredba o unutarnjem ustrojstvu Ministarstva unutarnjih poslova, Official Gazette nos. 70/2012, 140/2013, 50/2014, 32/2015 and 11/2017), the Tovarnik Centre ( Tranzitni prihvatni centar za strance Tovarnik ) is designated for, inter alia, restriction of the freedom of movement of foreigners caught irregularly crossing the external EU border, pending their transfer to an immigration centre or their expulsion under a readmission agreement; participation in the procedure of establishing the identity of the foreigners placed there; provision of medical and psychological support; and fingerprinting for Eurodac.",
"82. Section 11(2) of the Ordinance on the Treatment of Third-Country Nationals ( Pravilnik o postupanju prema državljanima trećih zemalja, Official Gazette no. 68/2018) defined the humanitarian grounds referred to in section 36(1) of the Aliens Act as emergency medical assistance, human organ donation, natural disasters and unforeseen events involving close family members (such as severe illness or death).",
"83. The Government submitted that in 2019 the authorities had issued eighty decisions granting entry to Croatia on the basis of section 36 of the Aliens Act (see paragraph 79 above). As an example, they submitted two decisions granting entry to Croatia in 2019; one was issued at the Strmica border crossing point with Bosnia and Herzegovina to a Serbian national in possession of a valid passport on the grounds of unforeseen events involving close family members. The other one was issued at the Bajakovo border crossing point with Serbia to a person born in Bosnia and Herzegovina on the grounds of urgent medical assistance.",
"84. Section 18 of the Lawyers’ Ethics Code ( Kodeks odvjetničke etike, Official Gazette nos. 64/2007, 72/2008 and 64/2018) reads as follows:",
"“Any disloyalty in conducting business is contrary to the honour and reputation of the advocacy service, and in particular:",
"– acquiring clients through intermediaries;",
"– giving third persons an empty power of attorney to complete;",
"...”",
"European Union law AND PRACTICE",
"85. As regards European Union law, see N.D. and N.T. v. Spain ([GC], nos. 8675/15 and 8697/15, §§ 41-43, 13 February 2020).",
"86. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) states, in its 33rd introductory remark, that “the best interests of the child should be a primary consideration of Member States when applying this Directive, in accordance with the Charter of Fundamental Rights of the European Union (the Charter) and the 1989 United Nations Convention on the Rights of the Child. In assessing the best interest of the child, Member States should in particular take due account of the minor’s well-being and social development, including his or her background”. The relevant provisions of that Directive further read as follows:",
"Article 6",
"Access to the procedure",
"“1. ...",
"Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.”",
"Article 8",
"Information and counselling in detention facilities and at border crossing points",
"“1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure.",
"....”",
"Article 26",
"Detention",
"“1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant. The grounds for and conditions of detention and the guarantees available to detained applicants shall be in accordance with Directive 2013/33/EU.",
"2. Where an applicant is held in detention, Member States shall ensure that there is a possibility of speedy judicial review in accordance with Directive 2013/33/EU.”",
"87. The relevant provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) read as follows:",
"Article 8",
"Detention",
"“1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.",
"2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.",
"3. An applicant may be detained only:",
"(a) in order to determine or verify his or her identity or nationality;",
"(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;",
"...”",
"Article 9",
"Guarantees for detained applicants",
"“1. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable.",
"Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention.",
"...",
"3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. ... When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted.",
"Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately.",
"4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation.",
"...”",
"Article 10",
"Conditions of detention",
"“...",
"2. Detained applicants shall have access to open-air spaces.",
"...",
"4. Member States shall ensure that family members, legal advisers or counsellors and persons representing relevant non-governmental organisations recognised by the Member State concerned have the possibility to communicate with and visit applicants in conditions that respect privacy. Limits to access to the detention facility may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the detention facility, provided that access is not thereby severely restricted or rendered impossible.”",
"Article 11",
"Detention of vulnerable persons and of applicants with special reception needs",
"“...",
"2. Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.",
"The minor’s best interests, as prescribed in Article 23(2), shall be a primary consideration for Member States.",
"...”",
"Article 23",
"Minors",
"“1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development.",
"....",
"3. Member States shall ensure that minors have access to leisure activities, including play and recreational activities appropriate to their age within the premises and accommodation centres referred to in Article 18(1)(a) and (b) and to open-air activities.",
"4. Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed.",
"...”",
"88. In its judgment of 14 May 2020 in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság (C-924/19 PPU and C-925/19 PPU), the Court of Justice of the European Union held, inter alia, as follows:",
"“In the first place, it should be observed that the first subparagraph of Article 8(3) of Directive 2013/33 lists exhaustively the various grounds that may justify the detention of an applicant for international protection and that each of those grounds meets a specific need and is self-standing ...",
"...",
"In addition, Article 8(2) of that directive provides that detention may be applied only when it proves necessary, on the basis of an individual assessment of each case and if other less coercive alternative measures cannot be applied effectively. It follows that the national authorities cannot place an applicant for international protection in detention without having previously determined, on a case-by-case basis, whether such detention is proportionate to the aims which it pursues ...",
"It follows from the foregoing that Article 8(2) and (3) and Article 9(2) of Directive 2013/33 preclude an applicant for international protection being placed in detention without the necessity and proportionality of that measure having first been examined and without an administrative or judicial decision stating the reasons in fact and in law for which such detention is ordered having been adopted.”",
"UNITED NATIONS",
"89. The relevant provisions of the Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows:",
"Article 1",
"“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"...”",
"Article 22",
"“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.",
"...”",
"Article 37",
"“States Parties shall ensure that:",
"...",
"(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;",
"(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;",
"(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”",
"90. The relevant part of General Comment No. 6 (2005) of the United Nations Committee on the Rights of the Child – Treatment of unaccompanied and separated children outside their country of origin (UN Doc. CRC/GC/2005/6, 1 September 2005) – reads as follows:",
"“12. ... the enjoyment of rights stipulated in the Convention [on the Rights of the Child] are not limited to children who are citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children - including asylum-seeking, refugee and migrant children - irrespective of their nationality, immigration status or statelessness ...",
"19. ... In the case of a displaced child, [the principle of the best interests of the child] must be respected during all stages of the displacement cycle. At any of these stages, a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child’s life.",
"20. A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to the territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender sensitive related interviewing techniques.",
"...",
"66. Asylum-seeking children, including those who are unaccompanied or separated, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age. In the case that facts become known during the identification and registration process which indicate that the child may have a well-founded fear or, even if unable to explicitly articulate a concrete fear, the child may objectively be at risk of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or otherwise be in need of international protection, such a child should be referred to the asylum procedure and/or, where relevant, to mechanisms providing complementary protection under international and domestic law.”",
"91. The relevant part of General Comment No. 14 (2013) of the United Nations Committee on the Rights of the Child on the right of the child to have his or her best interests taken as a primary consideration (UN Doc. CRC/C/GC/14, 29 May 2013), reads as follows:",
"“6. The Committee underlines that the child’s best interests is a threefold concept:",
"(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.",
"(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.",
"(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision ‑ making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.",
"...",
"37. The expression “primary consideration” means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness. Children have less possibility than adults to make a strong case for their own interests and those involved in decisions affecting them must be explicitly aware of their interests. If the interests of children are not highlighted, they tend to be overlooked.",
"....",
"39. However, since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application. The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. The same must be done if the rights of other persons are in conflict with the child’s best interests. If harmonization is not possible, authorities and decision-makers will have to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best.",
"40. Viewing the best interests of the child as “primary” requires a consciousness about the place that children’s interests must occupy in all actions and a willingness to give priority to those interests in all circumstances, but especially when an action has an undeniable impact on the children concerned.”",
"92. As regards the views adopted by the Committee on the Rights of the Child on 1 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016, see N.D. and N.T. v. Spain (cited above, § 68). The relevant part of these views reads as follows:",
"“14.2. The issue before the Committee is whether, in the circumstances of this case, the author’s return to Morocco by the Spanish Civil Guard on 2 December 2014 violated his rights under the Convention. In particular, the author claimed that, by summarily deporting him to Morocco on 2 December 2014, without performing any form of identity check or assessment of his situation, the State party: (a) failed to provide the author with the special protection and assistance to which he was entitled as an unaccompanied minor (art. 20); (b) failed to respect the principle of non‑refoulement and exposed the author to the risk of violence and cruel, inhuman and degrading treatment in Morocco (art. 37); and (c) failed to consider the best interests of the child (art. 3).",
"14.3. The Committee is of the view that the State’s obligations to provide special protection and assistance to unaccompanied children, in accordance with article 20 of the Convention, apply even ‘with respect to those children who come under the State’s jurisdiction when attempting to enter the country’s territory’. Similarly, the Committee considers that ‘the positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border’. Accordingly, it is imperative and necessary that, in order to comply with its obligations under article 20 of the Convention and to respect the best interests of the child, the State conducts an initial assessment, prior to any removal or return, that includes the following stages: (a) assessment, as a matter of priority, of whether the person concerned is an unaccompanied minor, with, in the event of uncertainty, the individual being accorded the benefit of the doubt such that, if there is a possibility that the individual is a child, he or she is treated as such; (b) verification of the child’s identity by means of an initial interview; and (c) assessment of the child’s specific situation and particular vulnerabilities, if any.",
"14.4. The Committee is also of the view that, in compliance with its obligations under article 37 of the Convention, in order to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment, the State should not return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee therefore considers that, in accordance with article 37 of the Convention and the principle of non-refoulement, the State has an obligation to carry out a prior assessment of the risk, if any, of irreparable harm to the child and serious violations of his or her rights in the country to which he or she will be transferred or returned, taking into account the best interests of the child, including, for example, ‘the particularly serious consequences for children of the insufficient provision of food or health services’. In particular, the Committee recalls that, in the context of best interest assessments and within best interest determination procedures, children should be guaranteed the right to: (a) access the territory, regardless of the documentation they have or lack, and be referred to the authorities in charge of evaluating their needs in terms of protection of their rights, ensuring their procedural safeguards.",
"...",
"14.6. The Committee also notes the State party’s allegation that the principle of non-refoulement does not apply in the present case because it only applies when the person comes from a territory where there is a risk of persecution. However, the Committee reiterates that the State party has an obligation not to return a child ‘to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child’. The Committee also notes that, before returning the author to Morocco, the State party did not ascertain his identity, did not ask about his personal circumstances and did not conduct a prior assessment of the risk, if any, of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considers that, given the violence faced by migrants in the Moroccan border area and the ill-treatment to which the author was subjected, the failure to assess the risk of irreparable harm to the author prior to his deportation or to take into account his best interests constitutes a violation of articles 3 and 37 of the Convention.",
"14.7. The Committee considers that, in the light of the circumstances of the case, the fact that the author, as an unaccompanied child, did not undergo an identity check and assessment of his situation prior to his deportation and was not given an opportunity to challenge his potential deportation violates his rights under articles 3 and 20 of the Convention.",
"14.8. Lastly, the Committee considers that the manner in which the author was deported, as an unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs, constitutes treatment prohibited under article 37 of the Convention.",
"14.9. The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it amount to a violation of articles 3, 20 and 37 of the Convention.”",
"93. The General Assembly of the United Nations stated in Article 3 of its Declaration on Territorial Asylum, adopted on 14 December 1967 (A/RES/2312 (XXII)):",
"“No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.”",
"94. On 19 September 2016 the General Assembly of the United Nations adopted the New York Declarations for Refugees and Migrants, in which it stated:",
"“24. ... We will ensure that public officials and law enforcement officers who work in border areas are trained to uphold the human rights of all persons crossing, or seeking to cross, international borders. ... We reaffirm that, in line with the principle of non-refoulement, individuals must not be returned at borders. ...",
"33. Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize cross-border movements. ...",
"65. We reaffirm the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto as the foundation of the international refugee protection regime. ...”",
"95. The relevant part of the Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, reads as follows:",
"“3. In the context of international migration, children may be in a situation of double vulnerability as children and as children affected by migration who (a) are migrants themselves, either alone or with their families ...",
"...",
"11. States should ensure that children in the context of international migration are treated first and foremost as children. States parties to the Conventions have a duty to comply with their obligations set out therein to respect, protect and fulfil the rights of children in the context of international migration, regardless of their or their parents’ or legal guardians’ migration status.",
"...",
"30. ... the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child, or the detention or expulsion of a parent associated with his or her own migration status.",
"...",
"32. The Committees stress that States parties should:",
"...",
"(h) “ensure that children are identified promptly in border controls and other migration-control procedures within the State’s jurisdiction, and that anyone claiming to be a child is treated as such, promptly referred to child protection authorities and other relevant services, and appointed a guardian, if unaccompanied or separated”.",
"Council of Europe",
"96. On 4 May 2005 the Committee of Ministers of the Council of Europe adopted twenty guidelines on forced return. The guideline of relevance to the present case reads as follows:",
"Guideline 11. Children and families",
"“1. Children shall only be detained as a measure of last resort and for the shortest appropriate period of time.",
"2. Families detained pending removal should be provided with separate accommodation guaranteeing adequate privacy.",
"3. Children, whether in detention facilities or not, have a right to education and a right to leisure, including a right to engage in play and recreational activities appropriate to their age. The provision of education could be subject to the length of their stay.",
"...",
"5. The best interest of the child shall be a primary consideration in the context of the detention of children pending removal.”",
"97. In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe to member States on measures of detention of asylum-seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837 th meeting of the Ministers’ Deputies, the Committee of Ministers recommended that, in particular in respect of minors:",
"“4. Measures of detention of asylum-seekers should be applied only after a careful examination of their necessity in each individual case. These measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments and by the case ‑ law of the European Court of Human Rights.",
"...",
"6. Alternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention.",
"...",
"20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time.",
"21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom.",
"22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families.",
"23. For unaccompanied minor asylum-seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.”",
"98. In Recommendation 1985 (2011) of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary Assembly of the Council of Europe considered that undocumented migrant children were triply vulnerable: as migrants, as persons in an undocumented situation and as children. It recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles:",
"“9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first;",
"9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered;",
"9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available;",
"9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances;",
"9.4.5. unaccompanied children should, however, never be detained;",
"9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure;",
"9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child;",
"...”",
"99. Prior to the above recommendation, in Resolution 1707 (2010) of 28 January 2010, the Parliamentary Assembly called on Council of Europe member States in which asylum-seekers and irregular migrants were detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles requiring, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained.",
"100. In Resolution 2295 (2019) of 27 June 2019, the Parliamentary Assembly reiterated its position of condemning violent practices such as detaining migrant children and using invasive methods in age-assessment procedures, which may have devastating effects on the child’s physical, emotional and psychological development. It welcomed the activities of the Parliamentary Campaign to End Immigration Detention of Children in promoting alternatives to immigration detention and encouraging a holistic approach to age assessment. It urged the member States of the Council of Europe to prevent all cases of violence against migrant children by:",
"“...",
"8.1.2. ensuring the compliance of national legislation with international standards for the protection of migrant children, in particular prohibiting their detention and ensuring the best interests of the child and their right to participate in decisions affecting them;",
"8.1.3. supporting the development of alternatives to detention of migrant children – such as foster care and supervised independent living with reporting obligations – and the setting out of a clear roadmap to end the practice of detention of children in a migration context;",
"8.1.4. providing legal safeguards for migrant children regarding their access to asylum procedures and guarantees that children are provided with child-friendly and age-appropriate information about asylum possibilities and other rights; ...",
"8.2.1. refraining from push-back practices in particular in relation to migrant children; ...",
"8.2.4. providing special training for law-enforcement and immigration officers, and border guards on international humanitarian law and the main international standards on the treatment of migrant children; ...",
"8.2.9. creating asylum units specialised in assisting migrant children and providing child-friendly information in the child’s native language; ...”",
"101. In Resolution 2299 (2019) of 28 June 2019 on pushback policies and practice in Council of Europe member States, the Parliamentary Assembly expressed concern about the persistent and increasing practice and policies of pushbacks, which were in clear violation of the rights of asylum-seekers and refugees, including the right to asylum and the right to protection against refoulement, which were at the core of international refugee and human rights law. It urged the member States of the Council of Europe:",
"“12.1. with respect to border controls, to",
"12.1.1. refrain from any measure or policy leading to pushbacks or collective expulsions, as they lead to a violation of the core rights of international asylum law, notably the right to asylum, the right to be protected against refoulement and the right to access an asylum procedure;",
"12.1.2. refrain from any type of violence against migrants and measures depriving them of their basic needs such as food, water, housing and emergency health care;",
"12.1.3. ensure independent and sustainable monitoring of border control activities, which is essential in putting an end to (violent) pushback action, by granting independent bodies and NGOs access to all border areas, by granting independent bodies access to all border surveillance material, and by effectively addressing reports and complaints by migrants and NGOs, ensuring sufficient independence;",
"12.1.4. combine the investigation of incidents with protective measures for alleged victims pending conclusions. Prevention measures must be introduced against informal forced return procedures, including standardised procedures at borders and clear rules of conduct;",
"12.1.5. encourage and support legal research, investigative journalism and reliable information from recognised, reputable, international and non-governmental organisations as a means of correctly informing the public, rather than relying on unsubstantiated reports, hearsay and misinformation. Satellite and digital data enable registration of cases which require investigation by official and impartial bodies;",
"12.1.6. comply with judgments of national courts and of the European Court of Human Rights, including their interim measures, in relation to pushbacks and refusing access to asylum and even to an asylum procedure, and to follow up recommendations of national independent bodies such as ombudspersons;",
"12.1.7. introduce and/or improve police training programmes, emphasising that border protection and surveillance must be carried out in full compliance with international obligations to respect individual rights to protection, to information, to legal assistance and not to be detained arbitrarily;",
"12.2. with respect to services at borders, to:",
"12.2.1. increase the means given to border services to allow them to provide adequate services to refugees, asylum seekers and migrants arriving at national borders, whatever their status and pending the implementation of appropriate procedures;",
"12.2.2. ensure the provision to migrants arriving at borders of information on their legal position, including on their right to apply for international protection (as enshrined in Article 8 of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection – the recast Asylum Procedures Directive) in a language they can understand, including oral interpretation (if necessary using the possibilities of distant interpretation using services available on the internet), taking into account the special difficulties of vulnerable people such as children and traumatised and illiterate people;",
"12.2.3. ensure the provision of interpretation at borders and throughout reception and medical examinations, registration and asylum processing, and to immediately cease any practices consisting in obliging migrants to sign documents they do not comprehend, which could lead them to believe they are signing asylum applications when the documents concern deportation;",
"12.3. concerning legal assistance, to:",
"12.3.1. ensure migrants can make a claim for protection at borders, and obtain legal aid and accessible and comprehensible information regarding their legal rights, taking into account the special circumstances of vulnerable people;",
"12.3.2. allow NGOs to provide assistance at places where human rights violations are reported (in particular in transit zones and along borders);",
"12.4. concerning medical and psychological assistance, to:",
"12.4.1. provide adequate access to medical services and health care at borders and immediately after transportation to reception centres, ensuring a permanent presence of medical staff, taking into account the special needs of vulnerable people, such as children, traumatised people and pregnant women;",
"12.4.2. in this framework, enable formal testimonies of physical violence perpetrated by border officials to be verified objectively;",
"12.4.3. give access to psychological support for asylum seekers, especially children, who often suffer from multiple trauma on arrival in Europe. The psychologists working with NGOs should be involved as partners in providing support, in view of the extensive experience and expertise of international NGO networks working with migrants;",
"12.5. concerning NGOs, to:",
"12.5.1. consider NGOs as partners and refrain from action that undermines their legitimate activities aimed at saving human lives;",
"12.5.2. refrain from using stigmatising rhetoric against NGOs assisting migrants, and refrain from taking any measures criminalising, stigmatising or putting at any disadvantage individuals and NGOs providing humanitarian assistance to, and defending the rights of, refugees, asylum seekers and migrants; the authorities are thereby invited to restore an enabling environment conducive to their work;",
"12.5.3. investigate allegations of infractions by NGOs of national laws or regulations before independent courts for adjudication and sanctions, which should only be applied in proven cases, respecting the principle of proportionality and founded on a clear legal basis.”",
"102. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Factsheet on immigration detention (CPT/Inf(2017)3), in so far as relevant, reads as follows:",
"5. Open regime",
"“Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. Within the detention facility, detained persons should be restricted in their freedom of movement as little as possible.",
"Detained irregular migrants should in principle have free access to outdoor exercise throughout the day (i.e. considerably more than one hour per day) and outdoor exercise areas should be appropriately equipped (benches, shelters, etc.).",
"The longer the period for which persons are held, the more developed should be the activities which are offered to them. ...",
"Immigration detention centres should include access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis, sports), a library and a prayer room. All multiple occupancy rooms should be equipped with tables and chairs commensurate with the number of persons detained.",
"The presumption should be in favour of open visits for detained foreign nationals. Visiting rooms should enable immigration detainees to meet under open conditions with family and friends visiting them, and the environment should be child-friendly (including a play area for children). If, exceptionally, it is considered necessary to impose restrictions on a particular foreign national, this should be done on the basis of an individual risk assessment.",
"...”",
"10. Care of vulnerable persons (in particular children)",
"“Specific screening procedures aimed at identifying victims of torture and other persons in situation of vulnerability should be put in place and appropriate care should be provided. In this context, the CPT considers that there should be meaningful alternatives to detention for certain vulnerable categories of person. These categories include inter alia victims of torture, victims of trafficking, pregnant women and nursing mothers, children, families with young children, elderly persons and persons with disabilities.",
"The CPT wishes to recall its position that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a child.",
"When, exceptionally, children are held with their parents in a detention centre, the deprivation of liberty should be for the shortest possible period of time. Mother (or any other primary carer) and child should be accommodated together in a facility catering for their specific needs.",
"...",
"Children should only be held in centres designed to cater for their specific needs and staffed with properly trained men and women.",
"In order to limit the risk of exploitation, special arrangements should be made for living quarters that are suitable for children, for example, by separating them from adults, unless it is considered in the child’s best interests not to do so. This would, for instance, be the case when children are in the company of their parents or other close relatives. In that case, every effort should be made to avoid splitting up the family.",
"Children deprived of their liberty should be offered a range of constructive activities (with particular emphasis on enabling a child to continue his/her education).”",
"Material describing THE situation of migrants arriving IN CroatiaEuropean Union Agency for Fundamental Rights",
"European Union Agency for Fundamental Rights",
"European Union Agency for Fundamental Rights",
"103. The relevant part of the European Union Agency for Fundamental Rights (FRA) report “Periodic data collection on the migration situation in the EU - February 2018 – Highlights” concerning Croatia reads:",
"“According to the Ombudsperson and UNHCR, Croatian police continued to force asylum-seekers back to Serbia and Bosnia and Herzegovina, in some cases using violence, without giving them an opportunity to lodge claims for international protection. For example, a Syrian national who had allegedly been subject to abuse and sexual exploitation was pushed back to Bosnia and Herzegovina although the police was informed about his vulnerability, the Croatian Law Center reported. A 6 ‑ year-old Afghani girl, who had already applied for asylum with her family in Croatia, lost her life after a train hit her at the border between Croatia and Serbia. According to media reports, the police had allegedly instructed the family to follow the railroad tracks back to Serbia, instead of processing the asylum application.",
"...",
"According to the Ombudspersons Office, police stations at the Eastern border of Croatia recorded only some 150 asylum applications, while 1,100 persons were returned to Serbia or Bosnia and Herzegovina. All decisions on expulsion had the same non-individualised wording. As no interpreter was available, procedures were held in English.",
"...",
"Reception centres in Croatia did not respect procedural and reception guarantees for vulnerable people as prescribed by law, the Croatian Law Center stated. No identification procedures, interpreters or specialised support services for victims of torture, trauma or human trafficking, people with mental health problems or addictions were available, according to the Centre for Peace Studies.",
"...",
"During the reporting period in Croatia, 40 immigrants were detained, including a girl who had been a trafficking victim. She was detained for five weeks before being transferred to the Centre for missing and abused children, according to the Jesuit Refugee Service.”",
"The relevant part of the FRA report “Periodic data collection on the migration situation in the EU - March 2018 Highlights” concerning Croatia reads:",
"“The Ombudsperson confirmed that the allegations of pushbacks at the border of Croatia continued, as stated in his letter to the State Attorney in January.",
"...",
"In Croatia, the Centre for Peace Studies has unsuccessfully been trying to access the detention centre since the beginning of 2018, in order to conduct regular visits as previously informally agreed with the Head Officer of the Detention Centre. As the main building is under reconstruction, persons in detention cannot get out for fresh air, according to the Jesuit Refugee Service.",
"...",
"In Croatia, the NGO ‘Are You Syrious’ reported on the police driving migrants back to the Serbian border or forcing them to walk for eight hours back to Šid. According to their reports, at least one woman was physically assaulted by officers. Pushed back migrants had to sleep outside in harsh winter conditions without food or water.”",
"The relevant part of the FRA report “Periodic data collection on the migration situation in the EU – May 2018 Highlights” concerning Croatia reads:",
"“Pushbacks of people who crossed the border without authorisation, including children who intended to seek asylum, continued from Croatia towards Serbia and Bosnia and Herzegovina on a daily basis, sometimes involving the use of excessive force, according to an interview with the NGO Welcome Initiative Service and media reports. Several children suffered injuries, including a 17-year-old boy from Afghanistan who sustained a concussion and a broken arm. Two men drowned trying to cross the river Kupa between Croatia and Slovenia.",
"...",
"According to an interview with the Ombudsperson’s Office in Croatia, the conditions for children and vulnerable persons in the Ježevo Detention Centre and the Tovarnik Transit Detention Centre were sub-standard. Following a visit, the Ombudsperson’s Office reported his observations to the relevant state bodies. The Asylum and Foreigners Service introduced a new practice making the approval of visits of NGOs to detention facilities more cumbersome, the Croatian Law Centre reported.”",
"The relevant part of the FRA report “Periodic data collection on the migration situation in the EU – November 2018 Highlights” concerning Croatia reads:",
"“Reports noted that the Croatian police continue to use force against migrants to push them back to neighbouring countries after they have crossed the Croatian border in an unauthorised manner. The Ministry of the Interior repeatedly denied the Ombudsperson access to information regarding police treatment. UNHCR, the Council of Europe and Members of the European Parliament called on Croatia to investigate allegations of collective expulsions of migrants and of excessive use of force by law enforcement officers, which have been witnessed for more than two years.",
"...",
"Access to asylum in Croatia remained restricted. According to the Jesuit Refugee Service, police officers said to asylum-seekers at the border that they had no time to take asylum requests and instructed them to proceed towards Bregana (border crossing between Croatia and Slovenia). The lack of translators, as well as the lack of defined standards for translators working in counselling and psychotherapy, remained concerns, according to an interview with the Society for Psychological Assistance.”",
"The relevant part of the FRA report “Migration: Key fundamental rights concerns – Quarterly bulletin 1” issued in February 2019 concerning Croatia reads:",
"“Asylum requests are being ignored and people, including children, continue to be pushed back from Croatia, NGOs and individuals reported to the Ombudsperson’s Office. According to Save the Children, the largest number of pushbacks involving children in 2018 was reported at the border between Serbia and Croatia ... News about police violence against refugees appears on a daily basis. A Guardian video showed asylum-seekers from Algeria, Syria and Pakistan being brutally beaten and sent back after being captured by the Croatian police while attempting to cross the Bosnia ‑ Croatia border. The NGO No Name Kitchen reports regularly about police violence. The Centre for Peace Studies has filed criminal charges against unidentified Croatian police officers for unlawful acts against refugees and migrants at Croatia’s border with Bosnia and Herzegovina. Border Violence Monitoring – a Serbian non ‑ profit database – published video footage of pushbacks of migrants including children and has collected more than 150 push-back reports from the Bosnian ‑ Croatian border.",
"...",
"The Croatian Law Centre reported that there are no alternatives to detention in Croatia and access to detention centres for NGOs and lawyers remains limited. According to the new By-law on the Rules Regarding Detention in the Reception Centre for Foreigners to the Ministry of Interior, lawyers need to announce their visit two days in advance (same as regular visitors) and police officials are present throughout the visit.”",
"Croatian Ombudswoman’s letters to the State authoritiesLetter of 23 January 2018 to the State Attorney of the Republic of Croatia",
"Letter of 23 January 2018 to the State Attorney of the Republic of Croatia",
"Letter of 23 January 2018 to the State Attorney of the Republic of Croatia",
"104. On 23 January 2018 the Croatian Ombudswoman sent a letter to the State Attorney of the Republic of Croatia regarding the event of 21 November 2017 during which the first and second applicant’s daughter, MAD.H., was hit by a train, as well as regarding the general practice of the Croatian police in respect of migrants entering Croatia from Serbia.",
"On the first point she submitted that she had conducted an inquiry after receiving a complaint from the first applicant lodged through the Serbian branch of Médecins sans Frontières. She noted that the applicants and the police officers had reported differently on the sequence of events which had led to the first and second applicants’ daughter’s death. The Ombudswoman noted, however, that there had been no thermographic camera recordings of the event. She noted that in previous cases in which she had sought to obtain such recordings, the thermographic camera recordings had also not been available owing to technical problems. She submitted that a criminal investigation should be conducted. She suggested that the contacts between the applicants and the police before the train had hit MAD.H. on 21 November 2017 be established by inspecting the signals from their mobile telephones and the police car GPS.",
"On the second point she noted that the results of her inquiries conducted in 2016 and 2017 had shown reasonable suspicion that the practice of the police officers on the border with Serbia, and in particular the fact that they were returning irregular migrants to Serbia without conducting proceedings under the Aliens Act and the International and Temporary Protection Act, had not been adequately investigated.",
"The Ombudswoman reported on an order of the Police Directorate of 15 February 2017 concerning migrants who had been caught deep into Croatian territory. All police administrations had been instructed to escort irregular migrants, regardless of where they had been encountered, to the border police administration, which would take over the proceedings and examine the circumstances of their entry and stay. She reported that between 15 February and 24 November 2017 summary proceedings had been conducted in respect of 1,116 persons. Every summary proceedings case file inspected had contained the same expressions, for example that the person in question had not had visible injuries and had not complained about his or her condition of health, that he or she spoke Arabic and English, that an interpreter had not been available and so the person had been interviewed in English, and that the person had not requested asylum. The latter circumstance raised serious doubts that such summary proceedings had gone into the individual circumstances of the persons in question.",
"Letter of 6 April 2018 to the Minister of the Interior and the Head of Police",
"105. On 6 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior and the Head of Police concerning the restriction of the first applicant’s and her children’s freedom of movement. She noted from the case file that the procedure had been conducted in English, which the first applicant did not understand, and that the interpreter had not signed the note on information concerning legal aid.",
"She asked about the action taken to verify the applicants’ identity and nationality, which was the reason for their placement in the Tovarnik Centre, in particular because in situations concerning the return of aliens the police deemed it sufficient that the persons submit a “Statement on identity for foreigners without identification documents”.",
"Letter of 18 April 2018 to the Minister of the Interior, the Minister of Health and the Head of Police",
"106. On 18 April 2018 the Croatian Ombudswoman sent a letter to the Minister of the Interior, the Minister of Health ( Ministar zdravstva Republike Hrvatske ) and the Head of Police concerning the visit by her representatives to the Tovarnik Centre on 26 March 2018. The Croatian Ombudswoman noted that, apart from the police officers who guarded the Tovarnik Centre, it lacked personnel to conduct activities with the persons placed there, especially with the children. She warned that there were no staff to provide food in and clean the Centre. The food had been ordered from local restaurants, and on the day of the visit all the persons held in the Tovarnik Centre, including two-year-old children, had been served with pizza, which was inappropriate nourishment for persons of their age.",
"The Croatian Ombudswoman reported having received contradictory information concerning the possibility of the persons placed in the Tovarnik Centre to use outdoor facilities and rooms for daily activities. She warned that vulnerable persons, particularly children, should be granted constant access to fresh air, the library and open areas. She proposed providing the persons placed in the Centre with clothes and shoes, rather than leaving it to the NGOs to meet this need. She noted that medical assistance was not provided in the Tovarnik Centre, whereas according to the standards of the CPT, a medical officer should have been present in the Centre on a daily basis. She further asked to be informed about the reasons why lawyers and NGOs had allegedly been denied the opportunity to visit the Tovarnik Centre.",
"The Croatian Ombudswoman noted that on the day of the visit it had been established that the persons placed in the Tovarnik Centre had had their mobile phones taken away from them and returned to them only occasionally. At the same time there had been no telephone available in the Centre for detainees to use to contact the outside world, or at least certain pre-designated persons or institutions.",
"Finally, she warned the Ministry of the Interior not to use media coverage of the fact that she had been allowed to visit the Tovarnik Centre as proof that the police had been treating migrants well, because the inadequacy of the material conditions in the Centre had only come to light when her report had been published.",
"Croatian Children’s Ombudswoman’s letters to the State authorities",
"107. On 10 April 2018 the Croatian Children’s Ombudswoman sent a letter to the Head of Police concerning the conditions under which families with children were being held in the Tovarnik Centre. She submitted that after visiting the Tovarnik Centre, her representative had concluded that it was inadequate for accommodating families with children, in that it entailed a limitation of freedom of movement, was not adequately equipped and there were no experts to provide psychosocial support. The Children’s Ombudswoman recommended that measures to ensure adequate conditions of placement for children be urgently taken, in accordance with the relevant international obligations.",
"108. In her letter to the Head of Police of 28 May 2018, the Croatian Children’s Ombudswoman stated that after visiting the Tovarnik Centre again on 2 May 2018 and talking with the families placed there, including the applicants, she had established that the conditions had improved: the rooms were clean, the external door were locked at midnight, all the persons placed in the Centre could use the entire space, including the playground for children and the sports courts. The children had been given toys and books in Farsi, a television showing children programmes and a table football game. There was a special room for changing nappies and children’s clothes, and the parents had been given baby food. However, she noted that most of the children had been unhappy because there was no possibility of schooling and there were no activities to structure their time. The children complained about bad food and the lack of fruit, vegetables and cooked meals. Some had health issues such as infections and allergies, and also psychological difficulties such as nightmares, phobias and sleep disorders. Although the persons held in the Centre had been provided with medical and dental care, as well as psychological support through weekly visits by the medical staff, social workers and a psychologist, the latter had been inefficient since there had been no interpreter present during the consultations.",
"The Children’s Ombudswoman recommended the transfer of families with children to appropriate accommodation in which the children could benefit from such facilities as pedagogical support and instruction in the Croatian language, and where they would be able to express themselves and benefit from medical and psychological and legal support with the help of an interpreter.",
"She concluded that although the conditions in the Tovarnik Centre had improved, they were not appropriate for the long-term accommodation of persons. No reasons had been given for the fact that such families as the applicants were being kept there for several months. Verification of the persons’ identities and their illegal crossing of the border could not justify long-term detention and restriction of freedom of movement for such vulnerable groups as families with children.",
"Letter of 20 September 2018 from the Council of Europe Commissioner for Human Rights",
"109. On 20 September 2018 the Commissioner for Human Rights wrote to the Croatian Prime Minister, expressing concern regarding the reports from expert refugee and migrant organisations that provide consistent and substantiated information about a large number of collective expulsions from Croatia to Serbia and to Bosnia and Herzegovina of irregular migrants, including potential asylum-seekers. According to UNHCR, Croatia had allegedly collectively expelled 2,500 migrants since the beginning of 2018. Among them, 1,500 had reported having been denied access to asylum procedures, while 700 of those persons had reported violence and theft by law enforcement officers during summary expulsions. Concerns in this context had also been expressed by the Croatian Ombudswoman. The Croatian authorities were invited to initiate and carry out prompt, effective and independent investigations into all recorded cases of collective expulsions and of allegations of violence against migrants and to ensure that anyone who intended to make an asylum application was given access to a fair and effective procedure.",
"Report of the fact-finding mission to Croatia by the Special Representative of the Secretary General on Migration and Refugees",
"110. On 23 April 2019 the Special Representative on Migration and Refugees published a report on his fact-finding mission to Croatia from 26 ‑ 30 November 2018. He noted that Croatia, which was responsible for a European Union external border on the Balkan route, had registered an increase in arrivals, with a total of 7,388 people registered in the first eleven months of 2018. However, the number of those remaining in the country was much lower: 352 asylum-seekers were accommodated in open reception centres in Croatia in November 2018. He further noted that in its attempts to thwart the unauthorised crossing of the European Union’s external border, and in view of preparations for entering the border-free Schengen area, since mid-2017 Croatia had been focusing on policies and measures to deter access to its territory and to return irregular migrants mainly to neighbouring countries, and that the implementation of these policies and measures had coincided with the emergence of reports of pushbacks, sometimes accompanied by violence, of migrants and refugees attempting to cross the border to Croatia.",
"During his interviews in Croatia, the Special Representative heard witness statements concerning repeated attempts to enter Croatia and injuries caused by physical violence, dog bites, and gunshot wounds. UNHCR and other international organisations had reported alleged incidents of ill-treatment of asylum-seekers and refugees by the Croatian Border Police, resulting in physical injuries. Several videos allegedly recorded in September-October 2018 showed instances of summary returns.",
"The Special Representative noted that since 2016, the Ministry of the Interior had received 193 complaints concerning allegations of ill-treatment at the border and of confiscation and destruction of possessions. Police inquiries had been made into these complaints but no violations of the law by the police forces had been found. At the same time, the investigation into the allegations had been hampered by the lack of information to identify the alleged victims and pinpoint the locus of the alleged ill-treatment, as well as by the difficulty of cross-checking data once the alleged victims had left Croatia. The Special Representative had not been informed of any practical steps taken to investigate those allegations, for example whether inquiries had been initiated by an authority independent from the police force or whether attempts had been made to identify or contact the alleged victims.",
"As regards access to the territory, the Special Representative noted with concern the intimidation perceived by NGOs working with refugees and migrants when their members and volunteers had been apprehended or convicted for having supported this group of people, which support was classified as assistance in the illegal crossing of the border.",
"The Croatian authorities had explained to the Special Representative that anyone who crossed the State border unlawfully was subject to an administrative procedure under the Aliens Act, with a view to their return. Once migrants were intercepted on Croatian territory, they were brought to the police station for identification and assessment of their needs in terms of protection. Refugees and migrants were asked, usually with the help of French or English interpretation, to fill in a form stating their identity and the circumstances of their illegal entry. If they expressed an intention to seek asylum, that fact was recorded in a database and the provisions of the International and Temporary Protection Act came into play. They were fingerprinted and redirected to reception or immigration detention centres. The Special Representative was told that many people preferred to withdraw their intention to seek asylum when informed of the role of fingerprinting under Eurodac, since they did not wish to stay in Croatia. In the absence of any intention to seek asylum, they were considered for voluntary removal or for immigration detention for the purposes of forced removal or taken immediately to the border to be handed over to the Bosnia and Herzegovina authorities under a readmission agreement.",
"Despite the fairly effective legal framework for affording protection, the Special Representative had heard reports of cases where asylum claims had been overlooked by the police or where people had been returned without having been taken to a police station in order to verify their need for international protection. He also heard testimonies on cases in which oral interpretation was provided in English in the course of procedures even though the person concerned had insufficient knowledge of that language; all documents were served only in Croatian and the person was unaware of the possibility of obtaining legal aid. The Special Representative warned that the lack of interpretation in languages spoken by foreigners in police stations where foreigners were held for illegally crossing the border prevented or delayed the identification of people in need of international protection and their access to asylum procedures.",
"The Special Representative noted that Croatia’s border control policies were characterised by a deterrent approach to the admission of migrants and refugees in the country, at the Croatian-Bosnian border in particular. He warned that in the absence of a physical barrier, the considerable technical and human resources deployed for border control should not be used to create obstacles to asylum for those who might be in need of international protection. The interception of migrants and refugees who were in Croatian territory but were then returned without the requisite administrative procedure raised questions as to the very essence of the right to seek asylum and respect for the principle of non-refoulement.",
"Several detainees in the Ježevo Centre to whom the Special Representative had spoken reported that they had not had access to a lawyer or an interpreter and had not been apprised of why they were in detention. They showed documents in Croatian (decisions ordering their expulsion and detention) and asked the Special Representative to translate and explain their content. The Special Representative was informed that upon arrival everyone had received a list providing information on how to access legal aid; however, the people he spoke to did not appear aware of their rights to have a lawyer and to appeal to a court against the detention decision. During the Special Representative’s visit, he had noticed next to the pay telephones a paper on the wall with an NGO’s contact details. He did not notice any other publicly displayed information on access to asylum and legal assistance.",
"The Special Representative noted that although the social welfare system was willing and able to accommodate unaccompanied children in their facilities, very few were detained in practice, but it was worrying that domestic legislation allowed for it. He pointed out that the situation of confinement of children should be addressed as a matter of urgency based on the principle that the best interests of the child should be the primary consideration, and that every effort should be made to avoid resorting to the deprivation of liberty of migrant and refugee children solely on grounds of their migration status. Developing effective alternatives to immigration detention should be a priority.",
"The Special Representative recommended the following:",
"“a. Call on the authorities to ensure the respect for the principle of non-refoulement by those guarding the borders; assist the authorities in providing continued training to those guarding the borders, including involved riot police, so as to ensure that they carry out their duties in compliance with the country’s human-rights obligations; and strengthen complaints mechanisms and the authorities’ capacity to conduct swift and effective investigations into allegations of shortcomings in this respect;",
"b. Support the authorities in drafting and implementing minimum standards for conditions of reception and services for women and children, to ensure compliance with European human rights standards;",
"c. Assist the authorities in developing and implementing a system of alternatives to immigration detention for families and other vulnerable groups;",
"...”",
"Report on pushback policies and practice by the rapporteur of the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe",
"111. The rapporteur of the Parliamentary Assembly’s Committee on Migration, Refugees and Displaced Persons published a report on her fact ‑ finding mission to Croatia and Bosnia and Herzegovina from 26 ‑ 29 March 2019.",
"The rapporteur was struck by the large discrepancies between the statements of the authorities and non-State actors like the Ombudswoman and NGOs. The authorities expressed mistrust of NGOs, seen as questioning unnecessarily the country’s border management, accusing the Croatian police of mistreatment where cases were extremely rare, and in some cases encouraging border crossing by illegal migrants. On the other hand, the findings of the Ombudswoman and NGOs “were so consistent and substantiated” that the rapporteur “had to take them seriously and investigate”.",
"In this context, the Deputy Ombudswoman of Croatia had told the rapporteur about the high number of complaints (over 200) she had lodged with the Ministry of the Interior about alleged pushbacks and collective expulsions from Croatia to Bosnia and Herzegovina but also from Croatia to Serbia. Only 1% of them had been declared admissible, which caused the Ombudswoman concerns about the level of independence with which the complaints are being dealt.",
"The rapporteur’s meeting with the Deputy Ombudswoman of Croatia “corroborated, notably, the conclusions of the Council of Europe Human Rights Commissioner concerning increasing (administrative and other) obstacles facing human rights defenders and NGOs dealing with migrants in many parts of Europe”. For instance, the National Preventive Mechanisms in place since June 2018 required advance written requests from the Ombudsperson’s office to consult specific police records rather than holding database information available without restrictions. Lawyers and NGOs were seeing their access to persons in need of assistance reduced and their presence resented, if not hampered, by the authorities. According to the rapporteur, these restrictions illustrated that it had become more difficult to reach out to migrants in need of help or to monitor border practices, and that the democratic space was progressively shrinking.",
"The rapporteur had met with the NGOs Centre for Peace Studies and Are You Syrious, which provided legal assistance and other services to migrants. Lawyers funded by UNHCR visited camps for two hours per week. Between April and October 2017, NGOs had escorted 300 people to the Croatian border who had asked for their support, announcing their arrival to the police, but this had been stopped as it gave asylum-seekers false hopes of receiving protection. These organisations had received many testimonies about pushbacks, a significant part accompanied by violence.",
"The rapporteur reported that all non-State actors she had interviewed had informed her about many other cases in which detected migrants had reported not being sent to a police station, but being immediately taken to the border or far inland within Bosnian territory, implying that no access to an asylum procedure was offered and official return procedures were circumvented. In some cases, this happened even with migrants who were found in the north of Croatia, sometimes after a formal readmission procedure applied by the Slovenian authorities. An element that appeared to be structural, especially in those informal procedures, was the brutal way pushbacks were carried out. Respondents referred to several documentaries in which the Croatian authorities had been shown mistreating groups of migrants, among them women and minors, while directing them to Bosnian territory. This was also confirmed by the mayor of the Bosnian city of Bihać, Mr Š.F., who claimed he had been confronted with special units of the Croatian authorities in the forests within Bosnian territory, forcing migrants to walk.",
"Report by Amnesty International “Pushed to the edge: Violence and abuse against refugees and migrants along the Balkans Route”",
"112. The Amnesty International report of 13 March 2019 was based on research carried out between June 2018 and January 2019. It found that systemic and deliberate pushbacks and collective expulsions – sometimes accompanied by violence and intimidation – were a regular occurrence at the border between Croatia and Bosnia and Herzegovina. Among the ninety-four refugees and migrants stranded in the temporary accommodation camps in Bihać and Velika Kladuša who were interviewed, nearly all confirmed that they had been returned from Croatia, often several times and after having been held in police stations deep inside Croatian territory, without due process and without access to asylum procedures. Many had made several unsuccessful attempts to reach Schengen borders only to encounter Croatian police who promptly returned them to Bosnia and Herzegovina without registering their asylum claims. Those intercepted in Croatian territory were told that “there was no asylum in Croatia”, shouted at and frequently beaten and detained for hours without food or water, before being transported in overcrowded, windowless and poorly ventilated police vans and dropped off at the Bosnian border. One third of those interviewed had experienced violence at the hands of the Croatian police. Others reported how Croatian police took their shoes, warm clothes and sleeping bags and forced them to walk barefoot for kilometres through freezing rivers and streams towards the Bosnian border. These returns regularly took place at night and in remote areas outside of the regular border crossings and without the presence of Bosnian border guards. Amnesty International reported that the accounts of returns cited above indicated that pushbacks and collective expulsions to Bosnia and Herzegovina of persons irregularly entering Croatia were widespread and were carried out summarily, without any of the guarantees required by international and EU law.",
"Judgment of the Federal Administrative Court of Switzerland of 12 July 2019",
"113. On 12 July 2019 the Federal Administrative Court of Switzerland suspended the transfer of a Syrian asylum-seeker to Croatia under Dublin Regulation 604/2013 because of the prevalence of summary returns at the Croatian border with Bosnia and Herzegovina. The court acknowledged the increasing number of reports that the Croatian authorities were denying access to asylum procedures and that large numbers of asylum-seekers were being returned to the border with Bosnia and Herzegovina, where they were forced to leave the country.",
"Report by the United Nations Special Rapporteur on the human rights of migrants",
"114. On 1 October 2019 the UN Special Rapporteur on the human rights of migrants, having visited Bosnia and Herzegovina between 24 September and 1 October 2019, reported having received reliable information about violent pushbacks of migrants and asylum-seekers by Croatian border police into the territory of Bosnia and Herzegovina. According to the testimonies he received, many migrants were forcibly escorted back to Bosnia and Herzegovina without going through any official procedure. The concrete tactics varied; however, common patterns included the capture of people on the move, confiscation of their property, especially communication equipment, beating with batons and chasing by dogs with the purpose of physically exhausting them and preventing them from attempting another crossing. The Special Rapporteur noted that abusive actions by the Croatian border police clearly violated the human rights of these individuals and in reality did not deter people on the move from advancing towards the European Union territory, but instead led to a flourishing network of smugglers and organised criminal activities, which required immediate attention and action by all countries in the region.",
"Statement of 21 October 2020 by the Council of Europe Commissioner for Human Rights",
"115. In her statement “Croatian authorities must stop pushbacks and border violence, and end impunity” published on 21 October 2020 following reports she had received of new allegations of collective expulsions of migrants, denial of access to asylum and extreme violence by Croatian law enforcement used in this context, the Commissioner stressed that these new and disturbing reports suggested that violence and dehumanising acts during pushbacks were increasing, and that it seemed that Croatian law enforcement officers continued to enjoy impunity for such serious human rights violations. The Commissioner was also concerned that the Croatian government’s reaction had been to dismiss reports published by NGOs or resulting from investigative journalism. She reiterated her call for the Croatian authorities to stop pushbacks and border violence and eradicate impunity for serious human rights violations committed against migrants by law-enforcement officers. She called on the Croatian authorities to publish the report by the CPT on its rapid reaction visit to Croatia in August 2020 as soon as possible after its adoption.",
"OTHER RELEVANT MATERIAL",
"116. On 6 January 2016 the Afghan Translation Service published an article “The Challenge of Translating Afghan Government Issued Documents”. It was noted that the war had dispersed Afghans across continents where they have to prove their identity. There were numerous problems with the documents issued by the government in Afghanistan; they were all handwritten, none were digital and there was no uniformity between the government-issued citizenship ID documents. The challenge of authenticating such documents was an issue for the translating agencies.",
"THE LAW",
"PRELIMINARY REMARKS",
"117. In several letters submitted in connection with application no. 15670/18 between 17 July 2018 and 8 March 2019, the Government referred to the applicants’ departure from Croatia and, while not requesting the striking-out of the case, referred to the case of V.M. and Others v. Belgium ((striking out) [GC], no. 60125/11, 17 November 2016).",
"118. The applicants’ lawyer replied that she was in contact with the applicants through the fourth applicant, who had sent her Viber messages on 17 and 20 July 2018 confirming that they wished to pursue their case before the Court. On 22 March 2019 she submitted a written statement signed by the first to fourth applicants on 20 March 2019, confirming that the family wished to pursue their case before the Court.",
"119. In a letter submitted in connection with application no. 43115/18, the Government objected that the authority form attached to the application was not signed by the applicants. In reply, the applicants’ lawyer submitted authorisations signed on 2 June 2020 by the first to fourth applicants to act on behalf of the family in the case.",
"120. In view of these circumstances, the Court will first examine whether it is necessary to continue the examination of the applications in the light of the criteria set forth in Article 37 of the Convention (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 71, 13 February 2020).",
"121. In the case of V.M. and Others v. Belgium (cited above), the Court specified, in the light of Article 37 § 1 (a), that an applicant’s representative not only had to supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it was also important that contact between the applicant and his or her representative be maintained throughout the proceedings, both in order to learn more about the applicant’s particular circumstances and to confirm the applicant’s continuing interest in pursuing the examination of his or her application.",
"122. The Court considers that in the present case there is no reason to doubt the validity of the powers of attorney or the credibility of the information provided by the applicants’ lawyer as to the truth of her contact with the applicants (compare Asady and Others v. Slovakia, no. 24917/15, §§ 37-42, 24 March 2020).",
"123. In any event, the Court considers that special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto require it to continue the examination of the applications in accordance with Article 37 § 1 in fine of the Convention. Indeed, the present case raises several important issues in terms of immigration control by the Croatian authorities. The participation of five third parties testifies to the public’s interest in the case. The impact of this case thus goes beyond the particular situation of the applicants (see N.D. and N.T. v. Spain, cited above, § 78).",
"JOINDER OF THE APPLICATIONS",
"124. Having regard to the intertwined subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.",
"ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION",
"125. The applicants complained that the State had been responsible for the death of MAD.H., and that in the ensuing criminal investigation all the relevant facts concerning her death had not been properly established. They relied on Article 2 of the Convention, the relevant part of which reads as follows:",
"“1. Everyone’s right to life shall be protected by law ...”",
"126. The Court will first look into the manner in which the authorities investigated the applicants’ allegations concerning the death of MAD.H. on 21 November 2017.",
"Procedural obligation under Article 2 of the ConventionAdmissibility",
"Admissibility",
"Admissibility",
"(a) Compatibility ratione loci of the complaint",
"127. Although the Government made no plea as to the Court’s competence ratione loci to examine the present complaint against Croatia in view of the fact that MAD.H. was hit by a train in the territory of Serbia (see paragraph 151 below), the Court will examine this question of its own motion.",
"128. In the case of Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, 29 January 2019), the Court set out the principles concerning the existence of a “jurisdictional link” for the purposes of Article 1 of the Convention in cases where the death occurred outside the territory of the Contracting State in respect of which the procedural obligation under Article 2 of the Convention was said to have arisen (ibid., §§ 188-90).",
"129. Applying those principles to the present case, the Court firstly observes that according to the criminal complaint lodged by the applicants, MAD.H.s’ death had allegedly been caused by the actions of the Croatian police undertaken within Croatian territory (see paragraph 10 above). Accordingly, under their domestic law which applies the principle of ubiquity (see paragraph 77 above), regardless of the fact that the death of MAD.H. had occurred in the territory of Serbia, the Croatian authorities were under the obligation to conduct a criminal investigation in order to examine the liability of the Croatian police officers for her death, which they did (see paragraphs 10-27 above and compare Güzelyurtlu and Others, cited above, §§ 188, 191 and 196, and Isaksson and Others v. Sweden, (dec.), no. 29688/09 et al., §§ 51 and 55, 8 March 2016). Lastly, the Court observes that the Croatian Constitutional Court raised no questions as to its own jurisdiction to examine the compliance of the domestic authorities with their procedural obligation under Article 2 of the Convention concerning MAD.H.’s death (see paragraphs 24 and 27 above).",
"130. In these circumstances, the Court finds that there was a “jurisdictional link” between the applicants, with respect to their complaint under the procedural limb of Article 2 concerning MAD.H.’s death, and Croatia.",
"131. The Court therefore finds that the applicants’ complaint against Croatia is compatible ratione loci with the provisions of the Convention.",
"(b) Non-exhaustion of domestic remedies",
"132. The Government submitted that the present case was similar to that of M.M. v. Croatia ((dec.), no. 4955/15 of 22 October 2019), where the Court had held that the applicant could have recourse to the Court only after the domestic proceedings directed towards rectifying any possible violation of Article 2 of the Convention had come to an end. Furthermore, they argued that the complaint was premature as the applicants had brought it to the Court before the Constitutional Court had had an opportunity to examine it.",
"133. The applicants submitted that they had exhausted the domestic remedies for their complaint.",
"134. In so far as the Government’s reference to the case of M.M. v. Croatia (cited above) could be understood as an argument that the applicants had failed to exhaust domestic remedies in that they had never brought a civil action for damages against the State in relation to the events in issue, the Court notes that the said case concerned the applicant’s allegation that the police had not taken all reasonable and adequate steps in order to prevent the killing of his wife and mother perpetrated by his son (ibid.). The present case, on the other hand, concerns the allegation that the Croatian police officers had put the first applicant and her children in a dangerous situation, which resulted in one of the children tragically dying.",
"135. In that connection, the Court reiterates that even in cases of non ‑ intentional interferences with the right to life or physical integrity, there may be exceptional circumstances where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017). Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority which goes beyond an error of judgment or carelessness, or where a life was lost in suspicious circumstances or because of the alleged voluntary and reckless disregard by a private individual of his or her legal duties under the relevant legislation (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 160, 25 June 2019, and the cases cited therein). In Öneryıldız v. Turkey ([GC], no. 48939/99, § 93, ECHR 2004 ‑ XII), the Court held that where it was established that the negligence attributable to State officials or bodies had gone beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, had failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life had not been charged with a criminal offence or prosecuted could amount to a violation of Article 2, irrespective of any other types of remedy which individuals could pursue on their own initiative.",
"136. In the present case, while it is not for the Court to assess the liability of police officers for the death of MAD.H., it notes that the police actions which allegedly immediately preceded her death might have involved a deliberate disregard of the relevant rules on access to asylum procedures (see paragraph 78 above, sections 33 and 59 of the International and Temporary Protection Act; see also Articles 6 and 8 of the relevant European Union Directive cited in paragraph 86 above, and Article 22 of the United Nations Convention on the Rights of the Child, paragraphs 89 and 90 above), or at the very least a disregard of the readmission agreement between Croatia and Serbia on the safe return of migrants unlawfully entering the country (see paragraph 80 above), despite the obvious risks involved in view that it was night-time in the winter and that there were several children present in the group aged one, two, six, nine and fourteen at the time (see, mutatis mutandis, Sinim v. Turkey, no. 9441/10, § 63, 6 June 2017, see also the third-party submissions outlined in paragraphs 144-147 below).",
"137. In these circumstances the Court considers that the procedural obligation imposed by Article 2 required that a criminal investigation be opened, also having regard to the fact that the situation could have given rise to criminal liability on the part of the police officers involved.",
"138. Accordingly, the applicants’ complaint cannot be rejected on the grounds that they did not institute civil proceedings for damages against the State.",
"139. The Court further notes that the Constitutional Court twice examined the merits of the applicants’ complaint concerning the ineffectiveness of the investigation into MAD.H.’s death and found that there had been no breach of Article 2 of the Convention in its procedural limb (see paragraphs 24 and 27 above). The Court has previously accepted that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined, as is the situation in the present case (see Karoussiotis v. Portugal, no. 23205/08, § 57, 1 February 2011, and Şahin Alpay v. Turkey, no. 16538/17, § 86, 20 March 2018).",
"140. The Court is therefore satisfied that the applicants brought their grievances before the domestic authorities, affording those authorities the opportunity of putting right the alleged violation of the Convention. It follows that the Government’s objection must be dismissed.",
"(c) Conclusion",
"141. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"Merits",
"(a) The parties’ arguments",
"(i) The applicants",
"142. The applicants contended that the Croatian authorities ought to have investigated MAD.H.’s death on their own initiative immediately after being apprised of the circumstances. The authorities ignored the evidence on the basis of which it had been possible to establish that the first applicant and her six children had entered Croatian territory, and that the police had apprehended and returned them to the border with Serbia. The applicants had not had an effective opportunity to participate in the investigation. Even though the investigation had been initiated following the criminal complaint lodged by their lawyer S.B.J. on their behalf, the investigating authorities had excluded S.B.J. from the investigation, and they had not been allowed to meet her until 7 May 2018.",
"(ii) The Government",
"143. The Government submitted that the investigation into the circumstances of MAD.H.’s death had complied with all the requirements of Article 2 of the Convention. Independent investigating authorities had promptly undertaken all actions with a view to verifying any causal link between the conduct of the Croatian border police officers and MAD.H.’s death. They gathered all documents, heard all witnesses and obtained documents from the Serbian authorities which had conducted an on-site inspection. The applicants’ statements given in the investigation had been contradictory. Moreover, had they not left Croatia several months after lodging their criminal complaint, they could have contributed to the investigation by proposing evidence and pointing to possible failures. In their application to the Court the applicants had not pointed to a single piece of evidence which the authorities had failed to obtain. They were merely dissatisfied with the outcome of the investigation.",
"(b) The third-party interveners",
"(i) The Centre for Peace Studies",
"144. The Centre for Peace Studies submitted that, since 2016, Croatian authorities had been conducting collective expulsions of migrants without any identification or registration of the persons intercepted, access to a lawyer and interpreter or access to asylum procedure. A large majority of reported cases involved persons being ordered to cross the border to Serbia and Bosnia and Herzegovina, thus being forced to swim through rivers and pass through mountains or exposed to other dangerous situations. In 2019 the Croatian Ombudsperson for Children had received several complaints concerning unlawful expulsions of children at the borders with Serbia and Bosnia and Herzegovina. These expulsions were in breach of the children’s right to seek asylum, and in complete denial of their best interests as extremely vulnerable persons. There had been no effective investigation into allegations of illegal practices of the Croatian police against migrants.",
"(ii) The Belgrade Centre for Human Rights",
"145. The Belgrade Centre for Human Rights referred to its joint report with the International Aid Network entitled “Documenting abuse and collective expulsions of refugees and migrants”, containing testimonies of collective expulsions and ill-treatment by Croatian officials in 2017. Most of the migrants interviewed had told similar stories: after crossing into Croatian territory though fields or forests, they had been spotted by Croatian officials, put into vans, transported to a place where they had been beaten, and later been pushed back to Serbia. Several persons reported that they had been taken near the railway line and told to return to Serbia by following the train tracks. Another field mission undertaken in 2019 had confirmed that such practices had continued in 2019.",
"(iii) Rigardu e.V.",
"146. Rigardu e.V. referred to its report of July 2017 containing testimonies of violent pushbacks from Croatia to Serbia gathered during its field work in Šid, Serbia, from 31 May to 13 July 2017. The circumstances in which these pushbacks had been carried out – in the middle of the night, outside official border crossings, in dangerous terrains and without notification of the authorities of the country to which the migrants were being returned – demonstrated that Croatian officials were systematically putting migrants’ lives in danger. There was a systemic lack of an adequate response by the Croatian authorities regarding allegations of illegal and violent pushbacks, despite numerous reports and evidence in that regard. When it came to deaths and severe injuries, the investigating authorities should not predominantly rely on statements of officials implicated in the incidents, and testimonies of migrants should not be easily discredited on account of the linguistic challenges and their limited opportunities to gather and provide evidence.",
"(iv) The Asylum Protection Center",
"147. The Asylum Protection Center submitted that, since 2016, numerous NGOs in the Western Balkans had reported widespread practices of unlawful and violent expulsions of migrants from Croatia to Serbia and Bosnia and Herzegovina. Such returns were being conducted outside official border crossings and without any prior notification of the authorities of the country to which the migrants were being returned, and thus in breach of the readmission agreements. The police usually ordered migrants to follow railways or roads, or cross rivers, as a result of which many of them had sustained accidents and died.",
"(c) The Court’s assessment",
"(i) General principles",
"148. The general principles applicable in a situation where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2 (see paragraph 137 above) have been summarised in Nicolae Virgiliu Tănase (cited above, §§ 164-71).",
"(ii) Application of the above principles to the present case",
"149. The present case concerns the death of a six-year-old migrant child, MAD.H., who was hit by a train after allegedly being denied the opportunity to seek asylum by the Croatian police officers and ordered to return to Serbia by following the train tracks.",
"150. In such circumstances and having in mind the fundamental importance of the right to life guaranteed under Article 2 of the Convention, the Court must apply careful scrutiny when examining whether the particular investigation satisfied all the guarantees required by the Convention.",
"151. The Court notes that MAD.H. was hit by a train at around 8 p.m. on 21 November 2017 in the territory of Serbia, some 200 metres from the border with Croatia. Her death was heavily covered by the national and international media. The key elements in the ensuing investigation were establishing the exact whereabouts of, and contact between, the first applicant and her children and the Croatian police officers on that date, and verifying allegations of pushbacks and deterrent practices allegedly used by the Croatian authorities in the present case.",
"152. The domestic authorities concluded that the first applicant and her children had never entered Croatian territory and that the police officers had not had any direct contact with them prior to the train hitting the child in Serbia. In so doing they relied on the statements of the police officers on duty on 21 November 2017, which were deemed concurring, whereas the statements of the first, second and thirteenth applicants were deemed contradictory as regards the crucial facts (see paragraphs 19 and 21 above). In particular, the second applicant stated that he had been with the group at the material time, whereas according to the first applicant and the Serbian police reports, the second applicant had stayed in Serbia.",
"153. In the circumstances of the case, the Court does not see why the latter discrepancy was given such crucial importance. The authorities did not consider the possibility that it could have been the result of a translation error during the first and second applicants’ hearing on 31 March 2018 (see paragraph 16 above), nor has it ever been disputed that the first applicant remained with the children throughout. It was also not disputed that the thirteenth applicant had been present, who on the night of the accident had told the Serbian authorities that he and his family had been walking in Croatian territory when the police had made them board a van, transported them to the border and told them to return to Serbia by following the train tracks (see paragraph 18 above).",
"154. On the other hand, the domestic authorities in no way addressed the change in the police officers’ statements during the investigation. In particular, on 22 November 2017 the police officers submitted that they had not had any contact with the first applicant or her children before the train hit MAD.H, but had merely spotted them inside Serbian territory and had then heard a train passing (see paragraph 11 above), whereas on 9 February 2018 they submitted that they had gone to the border and had signalled to the applicants not to cross it (see paragraph 13 above).",
"155. Moreover, the police officers submitted that, after the train accident, they had transported the mother and the child to the railway station, while the rest of the group had stayed at the border (ibid.). This appears to be contrary to the statement of the doctor who intervened after the accident and who submitted that at the railway station she had seen a group of migrants in the police van, and next to it a man holding a child (see paragraph 11 above). The domestic authorities did not address this discrepancy either.",
"156. The Court further notes that no material evidence was obtained which could have confirmed beyond any doubt the applicants’ and the Croatian police officers’ exact whereabouts on the evening of 21 November 2017. The police had informed the Vukovar County State Attorney’s Office that the recordings of the thermographic cameras could not be submitted because the storage system had been broken at the material time, whereas police officer D. stated that it had been broken for one year before the event (see paragraph 15 above).",
"157. The case file does not show whether the investigating authorities ever verified the allegation that the storage system had indeed been broken and that there had been no recordings of the impugned events, as proposed by the applicants (see paragraph 20 above). When the applicants’ lawyer raised the issue of the “loss” of the recordings, she received a reply that she did not have a power of attorney to represent the applicants (see paragraph 17 above).",
"158. Furthermore, in January 2018 the Croatian Ombudswoman suggested that the contact between the applicants and the police be established by inspecting the signals from their mobile telephones and the police car GPS (see paragraph 12 above). The applicants also proposed obtaining such GPS locations in order to prove that they had been in Croatian territory before the train accident (see paragraph 20 above). In the circumstances, this appeared to be an obvious item of material evidence which could have elucidated the sequence of events (compare Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 72-73, 4 April 2006, and Oğur v. Turkey [GC], no. 21594/93, §§ 89-90, ECHR 1999 ‑ III). However, neither the Office for the Suppression of Corruption and Organised Crime, nor the Osijek County Court’s investigating judge or the appeal panel addressed these proposals (see paragraphs 19 and 21 above).",
"159. The Court further notes that the investigating authorities did not address the Serbian authorities’ finding that the Croatian authorities had forcefully returned the first applicant and her children to Serbia on 21 November 2017 in breach of the readmission agreement between the two countries (see paragraphs 20 and 25 above).",
"160. Moreover, even though the investigation into the circumstances of MAD.H.’s death was initiated following a criminal complaint lodged by the lawyer S.B.J. on the applicants’ behalf, the investigating authorities did not inform her about the hearing of the first and second applicants on 31 March 2018 (see paragraph 16 above), where she could have helped clarify the alleged inconsistency in their statements.",
"161. The Court notes in that connection that, although doubts concerning the validity of her power of attorney may have arisen on 23 March 2018 (see paragraphs 49 above and 326 below), they were removed on 28 March 2018 (see paragraphs 58-59 above and 327 below), and at the latest on 31 March 2018 (see paragraphs 16 above and 328 below). Moreover, the authorities must have known that S.B.J. had meanwhile lodged a request for an interim measure with the Court on the applicants’ behalf (see paragraph 67 above). Nevertheless, on 19 April 2018 the investigating authorities refused to provide S.B.J. with information regarding the investigation, or to take into account her proposals concerning material evidence (see paragraph 17 above), and the applicants were allowed to meet with her only on 7 May 2018 (see paragraphs 66 above and 329 below).",
"162. Having regard to the fact that the applicants are an Afghan family with no knowledge of the Croatian language or legal system and no contacts in Croatia, it is hard to imagine how they could have effectively participated in the investigation without the assistance of a lawyer. In these circumstances, the investigative authorities failed to ensure that the applicants, as MAD.H.’s next-of-kin, were involved in the procedure to the extent necessary to safeguard their legitimate interests (compare Benzer and Others v. Turkey, no. 23502/06, § 193, 12 November 2013, and Mezhiyeva v. Russia, no. 44297/06, § 75, 16 April 2015).",
"163. In view of the above-mentioned deficiencies, the Court concludes that the State authorities failed to conduct an effective investigation into the circumstances leading to MAD.H.’s death on 21 November 2017.",
"164. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.",
"Substantive obligation under Article 2 of the Convention",
"165. On the basis of the material available in the case file, the Court considers that it is not in a position to reach any definitive findings under the Convention with regard to the alleged responsibility of the respondent State for the death of MAD.H. For that reason the Court has decided to confine its examination to an assessment of whether the domestic investigation was in compliance with the relevant standards under the procedural limb of Article 2 (see, mutatis mutandis, Sakvarelidze v. Georgia, no. 40394/10, § 50, 6 February 2020). In deciding not to make a separate assessment of the admissibility and merits of this part of the complaint, the Court has had particular regard to the continuing obligation of the domestic authorities under Article 2 of the Convention to carry out an effective investigation into alleged breaches of the substantive limb of that Article in order not to allow life-endangering offences to go unpunished (see Žarković and Others v. Croatia (dec.), no. 75187/12, § 23, 9 June 2015), and the possibility for the domestic authorities to resume the investigation into the applicants’ allegations (compare Kušić v. Croatia (dec.), no. 71667/17, §§ 50 and 97, 10 December 2019), since the statutory limitation period for prosecution has not yet expired.",
"166. Accordingly, the Court shall not examine this complaint.",
"ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"167. The applicants complained that the conditions of their placement in the Tovarnik Centre had been in breach of Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"AdmissibilityThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"168. In their observations of 29 June 2018 in connection with application no. 11570/18, the Government contended that the complaint was premature because on 6 April 2018 the applicants had also brought it before the Constitutional Court.",
"169. The applicants replied that they had lodged their application with the Court on 16 April 2018 because they had been invited to do so following the issuing of the interim measure by the Court.",
"The Court’s assessment",
"170. The Court notes that on 18 December 2018 the Constitutional Court examined the applicants’ complaint concerning their placement in the Tovarnik Centre and found no violation of Article 3 of the Convention in that regard (see paragraph 45 above). On 11 July 2019 it conducted another review of the conditions of the applicants’ placement in the Tovarnik Centre and found no breach of Article 3 of the Convention (see paragraph 46 above).",
"171. Accordingly, the Court concludes that the Constitutional Court was afforded an opportunity to examine the applicants’ complaint and that the Government’s objection must be dismissed.",
"172. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"173. The applicants submitted that in the Tovarnik Centre they had been kept in prison-like conditions. Initially, the rooms in which they had been placed had been locked all day long and they were able to see each other only during meals. The children had not been allowed to use the playroom, or any toys, colouring books or similar items shown by the Government in the photographs, and they were allowed to use the outdoor facilities for only one or two hours per day. Towards the end of their stay the regime had changed a little, but there had still been no means of structuring their time.",
"174. The applicants further submitted that in the Tovarnik Centre they had been visited by a psychologist, who had been unable to help them in any meaningful way because there was no interpreter present. The fourth and thirteenth applicants had borne the burden of interpreting for the rest of the family during the treatment. Even in those circumstances the psychologist had concluded that the applicants were in a poor psychological state. Most of the child applicants had developed psychosomatic disorders owing to exposure to stressful situations and unfavourable living conditions.",
"175. The applicants lastly submitted that they were in a state of fear and confusion because the authorities had placed them in the Tovarnik Centre without providing them with any information concerning their situation. They had been given documents to sign in a language they did not understand and had been prevented from contacting their lawyer, S.B.J.",
"(b) The Government",
"176. The Government submitted that the conditions of the applicants’ placement in the Tovarnik Centre had complied with the standards of the CPT and Article 3 of the Convention.",
"177. The Tovarnik Centre was a closed-type centre located in a small town, far away from any source of noise or pollution. There was no public address system in the Centre, as this could potentially scare small children, and there was practically no noise. The Centre was newly built, having opened on 1 April 2017, and its main purpose was to accommodate aliens and asylum-seekers whose freedom of movement had been restricted. It could accommodate sixty-two persons, and at the material time there had been twenty-six persons placed there (the fourteen applicants and another Afghan family of twelve). It was fully equipped to accommodate families with small children. There were bedrooms for families with children and a children’s playroom equipped with toys and books. There was a restaurant, a room for socialising and a basketball, football and handball court outside the building, as well as a children’s playground. As of 16 May 2018, the child applicants had been provided with various leisure and educational activities carried out by the Jesuit Refugee Service NGO.",
"178. The Government submitted photographs of the Tovarnik Centre showing the facility as newly built, dry, freshly painted, clean and furnished. The photographs showed that there were barriers in the hallways which could be locked and that the entire centre was surrounded by a wall. The photographs indicated that the applicants could open the windows in their rooms to let in air and light, the windows had bars on them and the doors to the rooms had a glass opening through which it was possible to see from the hallway into the room. There were also bars on the windows in the toilets, bathrooms and common rooms. The Centre was guarded by police officers who were posted outside the Centre, at the entrance and beside the doors to each floor but, according to the Government, the applicant children had not felt intimidated by them.",
"179. The Government submitted that the applicants had been placed in the Centre in three adjoining rooms. The doors to the rooms in which they had been placed had been open all the time. Initially the Government had submitted that the applicants had been allowed to use the outdoor facilities for two hours in the morning and two hours in the afternoon, but they subsequently rectified their statement, explaining that in fact they had been allowed to use the outdoor facilities and playground from 8 a.m. to 10 p.m.",
"180. Immediately after their arrival the applicants had been provided with clean clothes, underwear, toiletries and material required for childcare. They had been provided with medical assistance on 42 occasions, mainly at their request, and had been regularly examined by a psychologist. The Government observed that the applicants had been in a situation of uncertainty ever since they had started their journey to Europe in 2016, and that their placement in the Tovarnik Centre had not particularly exacerbated their state.",
"181. During their stay in the Tovarnik Centre the applicants had been allowed to use their mobile phones. They had been in contact with the lawyers I.C. and S.B.J. and had been visited by various NGOs, UNHCR, the Red Cross, the Croatian Ombudswoman and the Croatian Children’s Ombudswoman, none of whom had had any significant objections to their accommodation.",
"Third-party intervener - Hungarian Helsinki Committee",
"182. The Hungarian Helsinki Committee submitted that under the Court’s case-law, the extreme vulnerability of children was a decisive factor, which took precedence over their status as illegal immigrants. States therefore had a duty, as part of their positive obligations under Article 3 of the Convention, to protect them and adopt appropriate measures to this end. Article 3 made no provision for exceptions, and States were required to pay extreme care and due consideration to the best interests of children in a migratory context, owing to their inherent vulnerability. Asylum-seeking children, whether accompanied or not, were likely to be a particularly underprivileged and vulnerable group in need of special protection. Careful assessment of the best interests of the child was therefore a prerequisite for the State in order to avoid breaching its positive obligations under Article 3. The installation of playgrounds, child-friendly rooms and colourful pictures on the walls could not satisfy those legal requirements. Detention, especially when accompanied by substandard conditions, could easily render the enjoyment of those rights illusory. No child could make use of her or his rights in an environment that was a constant source of anxiety and psychological disturbance and deteriorated the parental image in the eyes of the children, which was a particularly traumatic experience. Being confined to a guarded institution, where the level of surveillance was high and the whole of everyday life strictly controlled, could be perceived by children as a never-ending state of despair, which could in itself breach Article 3 of the Convention.",
"The Court’s assessment",
"(a) General principles",
"183. The general principles applicable to the treatment of persons held in immigration detention were set out in the case of Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-67, 15 December 2016).",
"184. It should be noted that the confinement of minors raises particular issues in that regard, since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum‑seeker status (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012; A.B. and Others v. France, no. 11593/12, § 110, 12 July 2016; and R.R. and Others v. Hungary, no. 36037/17, § 49, 2 March 2021). Article 22 § 1 of the United Nations Convention on the Rights of the Child encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (see paragraph 89 above, and see also S.F. and Others v. Bulgaria, no. 8138/16, § 79, 7 December 2017). Likewise, the European Union directives regulating the detention of migrants adopt the position that minors, whether or not they are accompanied, constitute a vulnerable category requiring the special attention of the authorities (see paragraph 87 above). Moreover, the Court already held that the extreme vulnerability of children – whether or not they were accompanied by their parents – was a decisive factor that took precedence over considerations relating to the child’s status as an illegal immigrant (see G.B. and Others v. Turkey, no. 4633/15, § 101, 17 October 2019).",
"185. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not create for them “a situation of stress and anxiety, with particularly traumatic consequences” (see Tarakhel v. Switzerland [GC], no. 29217/12, § 119, ECHR 2014 (extracts)). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (ibid.).",
"186. In recent years the Court has in several cases examined the conditions in which accompanied minors were held in immigration detention. In finding a violation of Article 3 of the Convention in those cases, the Court had regard to several elements such as the age of the children involved, the length of their detention, the material conditions in the detention facilities and their appropriateness for accommodating children, the particular vulnerability of children caused by previous stressful events and the effects of detention to the children’s psychological condition (see S.F. and Others, cited above, §§ 79-83, and the cases referred to therein; see also G.B. and Others, cited above, §§ 102-17; and R.R. and Others, cited above, §§ 58-65).",
"(b) Application of these principles in the present case",
"(i) Preliminary remarks",
"187. The Court notes that the domestic courts, including the Constitutional Court, examined the conditions of the applicants’ placement in the Tovarnik Centre and found that they were Article 3 compliant (see paragraphs 45-46 above).",
"188. In this connection, the Court’s approach in examining the applicants’ complaint must be guided by the principle, stemming from Article 1 of the Convention, according to which the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts. The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials, as well as by materials originating from other reliable and objective sources (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 150, 21 November 2019).",
"189. The Court further notes that the applicants had no identity papers and that different information was given on their exact age. The fact that the fifth to fourteenth applicants were children born between 2003 and 2017 (see appended table) was broadly accepted.",
"190. As to the fourth applicant, the Court observes that in the proceedings concerning the applicants’ placement in the Tovarnik Centre, the authorities treated her as an adult (see paragraph 29 above). However, it notes that at the court hearing she stated that she had turned eighteen in April 2018 (see paragraph 39 above), and that according to the Bulgarian authorities she was born on 16 April 2000 (see paragraph 34 above), which would mean that during the first twenty-five days of her stay in the Tovarnik Centre she was a minor. Having also regard to the presumption of minority in case of uncertainty about age (see paragraphs 92, 95 and 98 above), and the fact that the doctor who examined her on 21 March 2018 noted that she was seventeen years old (see paragraph 28 above), the Court finds it appropriate to examine the fourth applicant’s Article 3 complaint together with the Article 3 complaints submitted by the other child applicants. Indeed, while it is true that the fourth applicant was not a young child but a person closer to adulthood, she would still fall within the international definition of minors, in respect of whom the considerations outlined in paragraph 186 above apply.",
"(ii) Examination of the complaint in respect of the applicant children",
"191. The Court notes that at the material time the eleven applicant children were aged one, two, three, eight, ten, fifteen and seventeen (see appended table). They were held at the Tovarnik Centre from 21 March to 4 June 2018, that is to say, for two months and fourteen days.",
"192. The Court notes that the applicant children were accompanied by their parents throughout the said period. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take adequate measures as part of their positive obligations under Article 3 of the Convention (see R.R. and Others, cited above, § 59).",
"193. The Court observes that the material conditions in the Tovarnik Centre were satisfactory. From the photographs submitted by the Government, the facility appeared newly built, dry, freshly painted, clean and furnished. There was a children’s playroom, a restaurant, a room for socialising, a basketball, football and handball court outside the building, as well as a children’s playground (see paragraphs 177-178 above). There were no issues of overcrowding, excessive noise or lack of proper ventilation. The applicants were placed in rooms equipped to accommodate families with small children, they were given clean clothes, underwear, toiletries and material tailored to childcare, and were provided with medical and psychological assistance (see paragraphs 32 and 180 above, and contrast Muskhadzhiyeva and Others v. Belgium, no. 41442/07, § 59, 19 January 2010; Popov, §§ 93-97; A.B. and Others, § 113; S.F. and Others, §§ 84-88; G.B. and Others, §§ 102-17; and R.R. and Others, §§ 60-61, all cited above).",
"194. However, the Court cannot overlook the presence of elements in the Tovarnik Centre resembling a prison environment; it was surrounded by a wall, with police officers posted by its entrance and by the doors to each floor, and with barriers in the hallways and bars on the windows. Also, the doors to the applicants’ rooms had a glass opening through which it was possible to see from the hallway into the room (see paragraph 178 above).",
"195. The Court finds worrying the Croatian Ombudswoman’s remarks made, after her representatives had visited the applicants on 26 March 2018, that apart from the police officers who guarded the Centre, there had been no staff to carry out activities with the persons placed there, especially the children, or to provide food or cleaning and ensure daily medical assistance (see paragraph 106 above). It further takes into account the Croatian Children’s Ombudswoman’s remarks made, after visiting the Tovarnik Centre in April 2018, that the Centre had been inadequate for accommodating families with children, in that it had entailed a limitation of freedom of movement, had not been adequately equipped and there had been no experts to provide psychosocial support (see paragraph 107 above).",
"196. The Court further observes that the applicants consistently complained to the NGOs, the domestic authorities and the Court that during the initial part of their stay in the Tovarnik Centre they had been confined to their rooms and had been restricted in their access to indoor leisure activities and the outdoor facilities (see paragraphs 31, 35, 38-39 and 173 above). The Government initially submitted that the applicants had been allowed to use the outdoor facilities for two hours in the morning and two hours in the afternoon, but they subsequently rectified their statement, explaining that in fact they had been allowed to use the outdoor facilities and playground from 8 a.m. to 10 p.m. (see paragraph 179 above). The Croatian Ombudswoman reported having received contradictory information in that regard (see paragraph 106 above).",
"197. The Court is unable to make any definitive findings on this particular issue based on the material before it. However, it finds it important to emphasise that the restriction of access to leisure activities, outdoor facilities and fresh air inevitably causes anxiety and is harmful for children’s well-being and development (see Article 23 of the relevant European Union directive cited in paragraph 87 above, and see also paragraphs 96 and 102 above).",
"198. The Court further observes that the psychologist established on 28 March 2018 that the applicants were mourning the death of MAD.H. and that they had been experiencing fear of uncertainty. He recommended providing them with further psychological support and organising activities to occupy the children’s time (see paragraph 32 above). The Government submitted that the applicant children had been provided with activities carried out by the Jesuit Refugee Service NGO as of 16 May 2018 (see paragraph 177 above), without submitting any proof to that effect. In any event, by 16 May 2018, the applicant children had already spent almost two months in the Tovarnik Centre without any organised activities to occupy their time (see R.R. and Others, cited above, § 61, where no activities were organised for the applicant children for period of a month and a half).",
"199. The Court is of the view that the detention of children in an institution with prison-type elements, where the material conditions were satisfactory, but where the level of police surveillance was high and there were no activities structuring the children’s time, would perhaps not be sufficient to attain the threshold of severity required to engage Article 3 where the confinement was for a short duration, depending on the circumstances of the case. However, in the case of a protracted period, such an environment would necessarily have harmful consequences for children, exceeding the above-mentioned threshold. The Court reiterates that the passage of time is of primary significance in this connection for the application of Article 3 of the Convention (see A.B. and Others, § 114, and R.R. and Others, § 64, both cited above).",
"200. The Court notes in that regard that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate immigration detention of children, emphasising the negative impact such detention can have on children’s physical and mental health and on their development, even when they are detained for a short period of time or with their families (see G.B. and Others, cited above, §§ 67-79 and 151). The relevant European Union directive adopts the position that detention of minors should be “for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors” (see paragraph 87 above). In the present case, the Court has found that the domestic authorities failed to act with the required expedition in order to limit, as far as possible, the detention of the eleven applicant children and their parents (see paragraphs 254 and 257 below).",
"201. The Court considers that the children’s detention over a period of two months and fourteen days, in the conditions set out above, exceeded the permissible duration beyond which Article 3 of the Convention is engaged (see paragraph 199 above). Indeed, it was significantly longer than in the reference cases against France (fifteen days in Popov, cited above, § 92; eighteen days in A.B. and Others, cited above, § 111; and ten days in R.C. and V.C. v. France, no. 76491/14, § 36, 12 July 2016), and it must have been perceived by the applicant children as a never-ending situation. Bearing in mind that they were in a particularly vulnerable condition due to painful past events, as most of them had witnessed the tragic death of their six-year-old sister near the Croatian-Serbian border, the situation must have caused them accumulated psychological disturbance and anxiety.",
"202. The Court also takes note of the applicants’ uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied, having regard to the fact that they were placed in the Tovarnik Centre on 21 March 2018 and received legal advice in that regard only on 12 April 2018 (see paragraph 35 above), and that they were not allowed to see their chosen lawyer S.B.J. until 7 May 2018 (see paragraph 66 above). Inevitably, this situation caused additional anxiety and degradation of the parental image in the eyes of the child applicants.",
"203. Accordingly, in view of the numerous children involved, some of whom were of a very young age, the children’s particular vulnerability on account of painful past events, and the length of their detention in conditions set out above, which went beyond the shortest permissible duration due to the failure of the domestic authorities to act with the required expedition (see paragraphs 254 and 257 below), the Court finds that the situation subjected the applicant children to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention.",
"204. There has accordingly been a violation of Article 3 of the Convention in respect of the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth applicants.",
"(iii) Examination of the complaint in respect of the adult applicants",
"205. The Court has already held that it was unable to make any definitive findings on the applicants’ complaint that during the first part of their stay they were allowed to spend only one or two hours per day in the outdoor facilities (see paragraph 197 above). However, it finds it useful to emphasise that the adult applicants were not persons suspected or convicted of a criminal offence, but migrants detained pending the verification of their identity and application for international protection. Accordingly, there should not have been any unreasonable restriction in their using the outdoor facilities (see the immigration detention standards developed by the CPT, paragraph 102 above).",
"206. The Court must further examine the available evidence to establish whether, as alleged by the adult applicants, they could be considered particularly vulnerable and, if so, whether the conditions in which they stayed in the Tovarnik Centre were incompatible with any such vulnerability to the extent that those conditions constituted inhuman and degrading treatment with specific regard to the adult applicants (see Ilias and Ahmed, cited above, § 191).",
"207. The Court notes that it is true that asylum-seekers may be considered vulnerable because of everything they might have been through during their migration and the traumatic experiences they are likely to have endured previously (ibid., § 192). The Court observes in this connection that the applicants left Afghanistan in 2016.",
"208. The Court is further mindful of the fact that the adult applicants were mourning the recent tragic death of the six-year-old MAD.H. near the Croatian-Serbian border. The Court observes that the authorities provided them with phycological support. They were visited by a psychologist on numerous occasions in the Tovarnik Centre (see paragraph 32 above, and contrast R.R. and Others, cited above, § 63, where there was no professional psychological assistance available for traumatised asylum-seekers).",
"209. The applicants complained that the psychologist who visited them could not help them in any meaningful way because there was no interpreter present. The Court observes in that connection that the applicants conversed with the psychologist with the help of the fourth applicant, who spoke English, and the thirteenth applicant, who spoke some Serbian (see paragraph 174 above). The possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019).",
"210. In addition, whilst the detention of the adult applicants with their children could have created a feeling of powerlessness, anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings (see Muskhadzhiyeva and Others, cited above, § 66, and Popov, cited above, § 105).",
"211. The Court is thus unable to conclude that the otherwise acceptable conditions at the Tovarnik Centre for adult applicants were particularly ill ‑ suited to their individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3.",
"212. The Court also considers that even though the adult applicants must have been affected by the uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied (see paragraph 35 above), the fact that they were aware of the procedural developments in the asylum procedure through their legal aid lawyer I.C. (see paragraph 51 above), and that in March and April 2018 they were visited by the Croatian Ombudswoman and the Croatian Children’s Ombudswoman (see paragraphs 106-107 above), must have limited the negative effect of that uncertainty (compare Ilias and Ahmed, cited above, § 193).",
"213. Accordingly, having due regard to all the circumstances of the present case, the Court is of the view that there has been no violation of Article 3 of the Convention in respect of the first, second and third applicants.",
"ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION",
"214. The applicants complained under Article 5 § 1 of the Convention that their placement in the Tovarnik Centre had been unlawful. Relying on Article 5 § 4, they also complained that they had not had at their disposal an effective procedure whereby they could have challenged the lawfulness of their placement there.",
"215. The relevant paragraphs of Article 5 of the Convention read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"AdmissibilityThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"216. In their observations of 29 June 2018 submitted in connection with application no. 15670/18, the Government maintained that the applicants’ complaints were premature as the proceedings for reviewing the lawfulness of their detention were still pending before the domestic authorities. The applicants had at their disposal an appeal to the High Administrative Court and a constitutional complaint.",
"217. The applicants submitted that they had afforded the national authorities an opportunity to examine their complaints.",
"The Court’s assessment",
"218. The Court notes that the applicants challenged before the Osijek Administrative Court the decisions restricting their freedom of movement (see paragraph 35 above). On 22 May 2018 that court partially dismissed and partially granted the third, seventh and eight applicants’ administrative action (see paragraph 40 above), and entirely dismissed the remaining applicants’ administrative actions (see paragraph 41 above). The applicants, save for the third, seventh and eighth applicants, appealed to the High Administrative Court, and that court dismissed their appeals (see paragraph 42 above). They lodged a constitutional complaint, and on 11 July 2019 the Constitutional Court found that their placement in the Tovarnik Centre had been in compliance with Article 5 § 1 (f) of the Convention, and that there had been no breach of Article 5 § 4 (see paragraph 46 above).",
"219. The Court notes that, meanwhile, on 6 April 2018, all the applicants lodged a complaint with the Constitutional Court in which they argued that their placement in the Tovarnik Centre had been in breach of Article 3 and Article 5 § 1 of the Convention (see paragraph 43 above). The Constitutional Court examined their complaint on 18 December 2018 (see paragraph 45 above).",
"220. In these circumstances, the Court concludes that the applicants afforded the domestic authorities an opportunity to examine their grievances and that the Government’s objection must be dismissed.",
"221. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"MeritsAlleged violation of Article 5 § 1 of the Convention",
"Alleged violation of Article 5 § 1 of the Convention",
"Alleged violation of Article 5 § 1 of the Convention",
"(a) The parties’ submissions",
"(i) The applicants",
"222. The applicants submitted that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1.",
"223. They contended that under the domestic law, as soon as a person expressed an intention to seek international protection, and until the decision on his or her application became final, he or she had the right to stay in Croatia (see paragraph 78 above). Relying on Suso Musa v. Malta (no. 42337/12, § 97, 23 July 2013), the applicants argued that their detention between 21 March 2018, when they expressed their intention to seek international protection and 4 June 2018, when they were transferred to an open-type centre, could thus not have been undertaken for the purposes of preventing their “effecting an unauthorised entry into the country”, given that there had been no “unauthorised entry”.",
"224. The applicants further submitted that the purpose of their placement in the Tovarnik Centre had not been their identification or the verification of kinship between them. The authorities had only started verifying their identity weeks after they had been placed in detention. Moreover, they never explained why they had doubted that the child applicants were not related to the adult applicants. If there had been a real suspicion of child trafficking, the State would certainly have taken steps to protect them. The aim of their detention had rather been to return them to Serbia in order to prevent their involvement in the criminal investigation concerning the death of MAD.H. and to prevent them from publicly speaking about their pushbacks.",
"225. The applicants lastly submitted that they had left Croatia in July 2018 after they had learned that, regardless of their suffering, their applications for international protection in that country had not been accepted.",
"(ii) The Government",
"226. The Government maintained that the applicants had been placed in the Tovarnik Centre for the purposes of establishing their identity, given that they had had no identity papers, and for the purpose of protecting the numerous minor children in the group by verifying their relationship with the adults. Additionally, there had been a risk of flight and further illegal border crossings, given that on arriving in Croatia the applicants had stated that their final destination was “Europe” and the United Kingdom. The risk of flight had been confirmed by the fact that the applicants had several times tried to leave Croatia unlawfully once they had been transferred to an open-type centre.",
"227. The Government contended that the restriction of the applicants’ freedom of movement had been lawful and not arbitrary. It had been ordered in good faith, with the purpose of preventing the applicants’ unlawful entry into the country. The conditions of their placement in the Tovarnik Centre had been adequate, and the duration of their placement had been reasonable. The circumstances of their case had been thoroughly examined by the domestic courts.",
"(b) Third-party intervener - Hungarian Helsinki Committee",
"228. The Hungarian Helsinki Committee stressed that when deciding on the restriction of liberty of children, their best interests had to be taken into account as a primary consideration. Even though international and European Union law did not prohibit the detention of children as such, they provided for this possibility only as a measure of last resort, in the absence of other viable alternatives, given that nobody should be held in detention on the sole grounds of being an asylum-seeker. They further submitted that domestic law allowing for the detention of asylum-seeking children was in breach of Article 5 § 1 of the Convention owing to the fact that detention as an institution, especially when other alternatives were available, was never in the best interests of the child and was therefore unnecessary and immensely disproportionate to the aim pursued.",
"(c) The Court’s assessment",
"(i) Compatibility of the deprivation of liberty with Article 5 § 1 of the Convention - general principles",
"229. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context.",
"230. In Saadi (ibid., §§ 64-66) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”. It considered that until a State had “authorised” entry to the country, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be imposed, without any distortion of language, to “prevent his effecting an unauthorised entry”. It did not accept that, as soon as an asylum-seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f) (ibid., § 65). It considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who was shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and the Committee of Ministers’ Recommendation (see Saadi, cited above, §§ 34-35 and 37), all of which envisaged the detention of asylum-seekers in certain circumstances, for example while identity checks were taking place or when elements on which the asylum claim was based had to be determined. However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66).",
"231. In Suso Musa (cited above, § 97) the Court held that, where a State which had gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – enacted legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry could raise an issue as to the lawfulness of detention under Article 5 § 1 (f). The Court considered that the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law (ibid.).",
"232. The Court further reiterates that detention is authorised under sub ‑ paragraph (b) of Article 5 § 1 only to “secure the fulfilment” of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned, and the arrest and detention must be for the purpose of securing its fulfilment and must not be punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see O.M. v. Hungary, no. 9912/15, § 42, 5 July 2016). Moreover, this obligation should not be given a wide interpretation. It has to be specific and concrete, and the arrest and detention must be truly necessary for the purpose of ensuring its fulfilment (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008).",
"233. Under the sub-paragraphs of Article 5 § 1, any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is at issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010).",
"234. Indeed, no detention which is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in that context extends beyond lack of conformity with national law: a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67; see also G.B. and Others, cited above, § 146, and Bilalova and Others v. Poland, no. 23685/14, § 74, 26 March 2020).",
"235. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Suso Musa, cited above, § 93).",
"236. As to the detention of migrant children, the Court notes that various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children (see G.B. and Others, cited above, §§ 67 ‑ 79, and 151).",
"237. It emerges from the Court’s established case-law on this issue that, as a matter of principle, the confinement of migrant children in a detention facility should be avoided, and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to this measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented (see A.B. and Others, § 123; Bilalova and Others, § 79; and G.B. and Others, § 151, all cited above ).",
"238. The Court notes that the move in international law towards adopting alternative measures to the administrative detention of migrants appears to concern not only children, but also their parents (see G.B. and Others, cited above, §§ 69, 72 and 168). The Court itself has acknowledged, albeit as part of its considerations under Article 8, that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life (ibid., and see also Popov, cited above, § 147).",
"239. Lastly, the Court has held that the detention of young children in unsuitable conditions in the context of Article 3, may on its own lead to a finding of a violation of Article 5 § 1, regardless of whether the children were accompanied by an adult or not (see G.B. and Others, § 151; see also Muskhadzhiyeva and Others, § 74, both cited above).",
"(ii) Application of the above principles to the present case",
"240. The applicants argued that their detention in the Tovarnik Centre did not fall within any of the permissible grounds under Article 5 § 1 (see paragraph 222 above).",
"241. In that connection, the Court first observes that contrary to the Constitutional Court’s finding of 11 July 2019 (see paragraph 46 above), the applicants’ detention could not have been covered by the second limb of Article 5 § 1 (f), because domestic law did not allow for deportation pending a decision on international protection and it is evident that no such proceedings were being conducted against the applicants (compare with Ahmade v. Greece, no. 50520/09, §§ 142-44, 25 September 2012).",
"242. The Court further notes that under the International and Temporary Protection Act, a person is considered an applicant for international protection from the moment he or she expresses an intention to seek international protection (see paragraph 78 above). Under sections 52(1), 53 and 54 of the Act, from the moment a person expresses an intention to seek international protection, until the moment the decision on the application for international protection becomes enforceable, such person has the right to stay in Croatia as well as the right to freedom of movement in that country. The Court notes that the freedom of movement may be restricted for the purposes set out in section 54(2) of the Act, such as the establishing of circumstances on which the application for international protection is based, in particular if it is deemed that there is a risk of flight, and establishing and verifying identity or citizenship.",
"243. The Court observes that the domestic law does not specify, nor did the Government argue, that any decision or other formal authorisation needed to be issued in order for a particular asylum-seeker to actually benefit from the right to stay in Croatia pending an application for international protection.",
"244. However, it may well be that what was intended was for the relevant domestic law to reflect international standards to the effect that an asylum-seeker may not be expelled pending the outcome of an asylum claim (see for example, S.D. v. Greece, no. 53541/07, § 62, 11 June 2009), without necessarily requiring that an individual be granted formal authorisation to stay in or to enter the territory.",
"245. At this juncture, the Court would reiterate that Article 5 § 1 (b) could also potentially provide justification, in some specific circumstances, for the detention of asylum-seekers (see O.M., cited above, § 48). The Court refers in that connection to the obligations of asylum-seekers under section 52 of the International and Temporary Protection Act, in so far as relevant to the present case, to submit to verification and establishing of identity and to stay on the territory of Croatia during the procedure for international protection (see paragraph 78 above).",
"246. However, the Court does not need to rule on whether the applicants’ detention fell within one of the permissible grounds under Article 5 § 1, because in any event, for the reasons outlined below, it is of the view that their detention was not lawful.",
"247. The Court has already found under Article 3 of the Convention that the conditions in which the child applicants were held in the Tovarnik Centre were in breach of that Article (see paragraph 204 above). These circumstances may on their own have led the Court to find a violation of Article 5 § 1 in respect of the applicant children (see paragraph 239 above).",
"248. The Court will proceed with its analysis in respect of the entire applicant family.",
"249. In the present case, the police placed the applicants in detention on 21 March 2018 on the basis of section 54(2)(2) of the International and Temporary Protection Act for the purpose of verifying their identities (see paragraph 29 above). Apart from stating that the applicants were Afghan nationals who had expressed an intention to seek international protection and who did not have identification documents, there is no indication in the detention order that an assessment was carried out as to whether, in view of the numerous children involved, a less coercive alternative measure to detention was possible (compare A.B. and Others, cited above, § 124, and see the materials cited in paragraphs 87-88 and 91 above). The Court thus has serious doubts as to whether in the present case the authorities carried out such an assessment.",
"250. The Court further notes that, even though the applicants were detained on 21 March 2018 for the purpose of verifying their identities, it was only on 10 April 2018 that the authorities registered the applicants’ fingerprints in the Eurodac system and sought information from Interpol Sofia and Interpol Belgrade with a view to checking their identity (see paragraph 34 above). The Court cannot but note that the foregoing occurred only after an inquiry by the Croatian Ombudswoman with the Ministry of the Interior (see paragraphs 33 and 105 above). By then, the applicants’ application for international protection had already been dismissed by the Ministry of the Interior for over ten days (see paragraph 50 above). In the Court’s view, this circumstance raises concerns as to the authorities’ acting in good faith (see paragraph 235 above).",
"251. Furthermore, throughout the proceedings the authorities maintained, save for in respect of the third, seventh and eight applicants (see paragraph 256 below), that the applicants’ placement in the Tovarnik Centre continued to be necessary as the mere submission of their personal identification information and fingerprinting had been insufficient to establish their identities, given that they had not been registered in the Schengen or Eurodac systems (see paragraph 40 above).",
"However, the Court observes that the Eurodac search conducted by the Croatian authorities revealed that the applicants had entered Bulgaria in 2016 (see paragraph 34 above) and that their asylum applications in Bulgaria had been rejected in 2017. Although their names in the Bulgarian system slightly differed from those in the Croatian system, mostly in the suffix of their last name, it was clear that those were the same persons (ibid.).",
"Furthermore, on 30 April 2018 the Croatian authorities received information on the applicants’ stay in Serbia and on 17 May 2018 they received a copy of the citizenship certificate issued by the Afghan authorities for the first and second applicants (see paragraph 38 above).",
"Insisting, in these circumstances, that the applicants’ detention continued to be justified by the need to establish their identity, could therefore raise further concerns as to the authorities’ acting in good faith.",
"252. The Court further observes that on 10 May 2018 the domestic authorities additionally justified the applicant’s detention by the flight risk they posed under section 54(2)(1) of the International and Temporary Protection Act (see paragraph 36 above).",
"253. Having regard to the fact that on 23 March 2018 the applicants submitted that they had spent around a year in Serbia without seeking asylum because there were no job opportunities and they wanted to live in Europe, and that they had failed to report that they had previously unsuccessfully sought asylum in Bulgaria (see paragraph 49 above), the Court has no cause to call into question the authorities’ conclusion related to the flight risk (see section 54(4) of the International and Temporary Protection Act containing objective criteria defining the risk of flight, cited in paragraph 78 above). Indeed, having been transferred to an open-type centre in Croatia, the applicants repeatedly attempted to enter Slovenia unlawfully, eventually succeeded in doing so, and then left that country as well (see paragraph 47 above).",
"254. However, where the domestic authorities decided, on grounds provided for by law, to detain children and their parents for immigration ‑ related purposes in exceptional circumstances, it goes without saying that the related administrative procedures, such as examining their application for international protection, ought to have been conducted with particular vigilance and expedition in order to limit, as far as possible, the detention of the applicant family (see Articles 9 and 11 of the relevant European Union Directive cited in paragraph 87 above, and compare Bilalova and Others, cited above, § 81).",
"255. In that regard the Court notes that, even though the Ministry of the Interior dismissed the applicants’ application for international protection on 28 March 2018, it took another three months for the Osijek Administrative Court to review their appeal in order for the decision to become enforceable (on 18 June and 2 July 2018; see paragraph 54 above).",
"256. In addition, the Court notes that in the case of the third, seventh and eighth applicants, on 22 May 2018 the Osijek Administrative Court held that precisely because their asylum claims had already been dismissed on 28 March 2018, their detention could not have continued to be justified by the need to establish their identity and the circumstances on which they had based their asylum request (see paragraph 40 above). Had the Osijek Administrative Court examined their case more speedily, it could have ordered their release much earlier than 22 May 2018.",
"257. Accordingly, the delays in the present case, related to the verification of applicants’ identity and the examination of their application for international protection before the Osijek Administrative Court, seriously call into question the diligence shown by the authorities in conducting the proceedings. The authorities failed to comply with the requirement of expedition and failed to take all the necessary steps to limit, as far as possible, the detention of the applicant family (compare Bilalova and Others, cited above, § 81).",
"258. This situation was further compounded by the fact that the applicants were not afforded relevant procedural safeguards, as shown by the Osijek Administrative Court’s finding that there was no evidence that they had been apprised of the decisions placing them in the Tovarnik Centre in a language they could understand (see paragraph 37 above and, mutatis mutandis, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 146, 22 November 2016). The Court notes in this regard that there have apparently been other cases in which migrants in Croatia had not been informed of the reasons for their detention because they had been given documents in Croatian which they could not understand, and had been unaware of their right to have a lawyer or to challenge the decision to detain them (see the relevant part of the fact-finding mission to Croatia by the Special Representative of the Secretary General on Migration and Refugees, cited in paragraph 110 above).",
"259. In conclusion, the Court considers that the applicants’ detention was not in compliance with Article 5 § 1 of the Convention. Accordingly, there has been a violation of that provision.",
"Alleged violation of Article 5 § 4 of the Convention",
"260. The applicants submitted that the decisions of 21 March 2018 ordering their placement in the Tovarnik Centre had not been explained to them in a language they could understand, nor had they been informed that they could make use of remedies against it. They had managed to challenge them only in April 2018, after those decisions had been accidentally discovered in the case file by their legal aid lawyer appointed in another set of proceedings. They also submitted that the administrative court had reviewed the lawfulness of their detention as late as 22 May 2018, even though numerous children were involved.",
"261. Having regard to its findings under Article 5 § 1 above, in which it took into account the fact that there was no evidence that the applicants had been apprised in a language they could understand of the decisions placing them in the Tovarnik Centre (see paragraph 258 above), as well as the length of the proceedings before the Osijek Administrative Court for the review of their detention (see paragraph 256 above), the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 5 § 4.",
"ALLEGED VIOLATION OF ARTICLE 4 of protocol no. 4 to THE CONVENTION",
"262. The applicants further complained that they had been subjected to collective expulsions without any individual assessment of their circumstances. They relied on Article 4 of Protocol No. 4 to the Convention, which provides:",
"“Collective expulsion of aliens is prohibited.”",
"Preliminary issueThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"263. The applicants submitted that before 21 March 2018, when they had been allowed to stay in Croatia pending the outcome of the proceedings for international protection, they had three times been summarily returned from Croatia to Serbia without any examination of their personal circumstances.",
"264. On 21 November 2017 the Croatian police had apprehended the first applicant and six of the children in Croatian territory, taken them to the border and told them to return to Serbia, ignoring their requests for asylum, after which MAD.H. died. On two further occasions on unspecified dates before 21 March 2018, the Croatian police had returned all of them to Serbia, ignoring their requests for asylum.",
"265. The applicants alleged that this reflected the general Croatian police practice towards migrants, as confirmed by numerous independent national and international reports. According to applicants, by denying the latter events, the State was trying to avoid responsibility for serious human rights violations.",
"(b) The Government",
"266. The Government maintained that on 21 November 2017 the applicants had not entered Croatian territory – that is to say, the first applicant had entered it only to ask for help for MAD.H., after which she had voluntarily returned to Serbia. On that day the applicants had not sought asylum. The Government had no evidence of any further attempts by the applicants to cross the border illegally in the period before 21 March 2018. Once the applicants had expressed their wish to seek international protection on 21 March 2018, the Croatian authorities had conducted the relevant procedure and had examined the particular circumstances of their case.",
"Third-party intervener - Hungarian Helsinki Committee",
"267. The Hungarian Helsinki Committee submitted that the authorities along the Western Balkan route regularly implemented measures potentially in breach of Article 4 of Protocol No. 4 in remote areas, at night-time, without conducting any kind of official procedure or handing over those being removed to the officials of the receiving State. Victims of such unofficial practices thus faced major challenges in providing substantive evidence to the Court to prove their allegations. The Hungarian Helsinki Committee suggested that in such situations establishing the applicants’ victim status could be dealt with in the same way as that of applicants in cases of forced disappearance, institutional discrimination, or in certain Article 18 cases. Where the lack of documents proving that the applicants were indeed under the jurisdiction of the respondent State could be ascribed to the practice of the State’s authorities, the State should not be able to hide behind this pretext. It would be against the principle of the rule of law and of the Contracting Parties’ obligation to respect the rights set out in the Convention to dismiss the right to seek justice from the Court of persons whose Convention rights were violated in a manner that deliberately impeded their access to proceedings before the Court.",
"The Court’s assessment",
"268. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151, ECHR 2012). In the context of expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State was at the very core of an applicant’s complaint, it was essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events. If that is the case, the burden of proof should shift to the Government ( see N.D. and N.T., cited above, § 85 ).",
"269. The Court observes that the applicants’ description of the events of 21 November 2017 was specific and consistent throughout the whole period following the death of MAD.H. At the same time, there is no material evidence to confirm that the applicants entered Croatia on 21 November 2017 and were returned to the border with Serbia by the Croatian police. The alleged return occurred at night-time in the winter, without them being handed over to the officials of that country, and without any kind of official procedure.",
"270. The Court acknowledges in that connection a large number of reports by civil-society organisations, national human rights structures and international organisations concerning summary returns of persons clandestinely entering Croatia to the borders with Serbia and Bosnia and Herzegovina, where they are forced to leave the country (compare M.K. and Others v. Poland, nos. 40503/17 and 2 others, § 174, 23 July 2020). These materials include, inter alia, reports by the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, the rapporteur of the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe, and the United Nations Special Rapporteur on the human rights of migrants (see paragraphs 103-115, and see the third-party submissions outlined in paragraphs 144-147 above). The summary returns are allegedly being conducted outside official border crossings and without any prior notification of the authorities of the country to which the migrants are being returned.",
"271. In this connection, as the Court has often noted in its case-law, footage of video surveillance may be critical evidence for establishing the circumstances of the relevant events (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 269, 27 August 2019, with further references). The Court notes that the Tovarnik-Šid area where the applicants had allegedly entered Croatia was under constant surveillance, including by stationary and thermographic cameras, owing to the frequent attempts by migrants to illegally cross the border there (see paragraph 8 above).",
"272. The Court has already found that the domestic criminal investigation did not comply with the requirements of Article 2 of the Convention (see paragraph 164 above), inter alia, because the investigative authorities never verified the police allegation that there were no recordings of the impugned events, and that they had failed to inspect the signals from their mobile telephones and the police car GPS in order to establish the applicants’ whereabouts and their contact with the Croatian police before the train had hit MAD.H.",
"273. Having regard to the above considerations, the Court is of the view that, in the particular circumstances of the present case, there was prima facie evidence in favour of the applicants’ version of events, and that the burden of proving that the applicants had not entered Croatia and had not been summarily returned to Serbia prior to the train hitting MAD.H. rested on the authorities (see paragraph 268 above). However, the Government have not submitted a single argument capable of refuting the above prima facie evidence provided by the applicant.",
"274. The Court will thus consider it to be truthful that on 21 November 2017 the Croatian police officers returned the first applicant and her six children (the ninth, tenth, twelfth, thirteenth and fourteenth applicants and MAD.H.) to Serbia without considering their individual situation (compare N.D. and N.T., cited above, § 88).",
"275. As to the applicants’ submissions that all of them had entered Croatia on two further occasions and had sought asylum, but that the Croatian police officers had summarily returned them to Serbia, the Court notes that they are unsubstantiated as to any relevant circumstances. The applicants have accordingly failed to present prima facie evidence in support of those allegations.",
"Admissibility",
"276. In order to determine whether Article 4 of Protocol No. 4 is applicable, the Court must seek to establish whether the Croatian authorities subjected the first applicant and five of the child applicants to “expulsion” within the meaning of that provision.",
"277. The Court refers to the general principles summarised in M.K. and Others (cited above, §§ 197-200) and reiterates that it has interpreted the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 174, ECHR 2012), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border (see N.D. and N.T., cited above, § 185). It has also applied Article 4 of Protocol No. 4 to aliens who were apprehended in an attempt to cross a national border by land and were immediately removed from the State’s territory by border guards (ibid., § 187).",
"278. Turning to the present case, the Court observes that the first applicant and her six children clandestinely entered Croatia outside an official border crossing point. They were intercepted some hours later while resting in a field. They were then transported by the police to the border and were told to return to Serbia, which they did.",
"279. Referring to the principles established in its case-law (see paragraph 277 above), the Court finds that the fact that the first applicant and her six children entered Croatia irregularly and were apprehended within hours of crossing the border and possibly in its vicinity do not preclude the applicability of Article 4 of Protocol No. 4.",
"280. Having regard to the foregoing, the Court considers that the first applicant and the five child applicants (the ninth, tenth, twelfth, thirteenth and fourteenth applicants) were subjected to expulsion within the meaning of Article 4 of Protocol No. 4.",
"281. Since this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible.",
"MeritsThe parties’ arguments",
"The parties’ arguments",
"The parties’ arguments",
"(a) The applicants",
"282. The applicants contended that their case should be distinguished from N.D. and N.T. (cited above), because they were a family with children and they had been subjected to expulsion after they had been apprehended in the territory of Croatia by the Croatian police, who had ignored their request for asylum. They had not used force or endangered public safety during the border crossing or during their stay in the territory of Croatia.",
"283. The applicants submitted that under the International and Temporary Protection Act, an intention to seek international protection could be expressed at a border crossing or, if the person was already in the territory of Croatia, at a police station or reception centre for foreigners. The family had expressed their intention to seek asylum to the first police officers they had encountered in Croatia, with the aim of securing access to the procedure in accordance with Croatian law. In each of their attempts to enter Croatia before 21 March 2018, the Croatian police had returned them to Serbia, despite their obligations under section 33(8) of the International and Temporary Protection Act.",
"284. The applicants explained that they had entered Croatia clandestinely because, without travel documents, it would not have been possible for them to leave Serbia and enter Croatia at official border crossing points between these two countries. Without travel documents, their attempt to leave Serbia and enter Croatia through the official border crossing would have been treated as a minor offence and would have been prevented.",
"285. The Croatian Embassy in Serbia did not accept applications for international protection, so the applicants had used the only available way of seeking international protection in Croatia: they had crossed the border unlawfully.",
"(b) The Government",
"286. The Government argued that the case of N.D. and N.T. (cited above) was applicable to the present case. The applicants had had genuine and effective access to an official border crossing point, which they had failed to use. The fact that they were a family with numerous children had been an even stronger reason for them to enter Croatia at an official border crossing. The applicants had not submitted any evidence that they had attempted to enter the country legally but had been prevented from doing so, seeing that at the material time the Croatian official border crossings had been open.",
"287. The Government argued that the applicants had had the possibility of entering Croatia legally regardless of the fact of not having any identification documents. In particular, they referred to section 36 of the Aliens Act and the Ordinance on the Treatment of Third-Country Nationals (see paragraph 79 above), arguing that persons who did not meet the requirements to enter Croatia legally, because of not having identification documents, could be granted entry on humanitarian grounds.",
"288. Accordingly, had the applicants arrived at an official border crossing and explained the reason for wishing to enter the country, the border officials would have taken their fingerprints and photographs and established their identity and the circumstances of their arriving in Croatia. They would have registered their intention to seek international protection and would have instructed them to report to a reception centre with a view to lodging a formal application for international protection. This manner of legal entry of foreigners into the country was effective, as proven by the fact that in 2019 the authorities had issued eighty decisions granting entry to Croatia on the basis of section 36 of the Aliens Act (see paragraph 83 above).",
"289. The Government further submitted that in 2017, 1,887 applications for international protection had been lodged in Croatia of which 211 were granted, and 816 applications had been lodged up until 20 September 2018, of which 157 had been successful. This confirmed that Croatia provided third-country nationals with access to international protection.",
"290. However, just like the applicants, 77% of the illegal migrants who, on entering Croatian territory, had expressed an intention to seek international protection had left Croatia before actually lodging an application for international protection or before the end of the proceedings. This was precisely what had happened in the present case, since the applicants had left Croatia in July 2018, before the proceedings concerning their applications for international protection had ended. Statistics showed that migrants used Croatia as a country of transit on their way to western and northern Europe. In the majority of cases, those persons were economic migrants, just like the applicants, rather than refugees in need of international protection.",
"291. The Government further submitted that as a European Union Member State with the prospect of joining the Schengen Area in the near future, Croatia had the right to control the entry of aliens to its territory and had the obligation to protect the State borders from illegal crossings. Since mid-2017, the human and technical capacities of the border police had been increased and deterrents had been implemented more intensively than before because of increased migratory movements along the so-called Western Balkans migratory route. Deterrence, which was regulated by the Schengen Borders Code, involved measures and action to prevent illegal entries at the external border.",
"292. Various NGO and international reports regarding coercive measures allegedly being applied to migrants by Croatian police did not contain sufficiently concrete data to trigger criminal investigations. Since illegal migrants had been prevented from entering Croatia by police officers or had been returned, in accordance with another prescribed procedure, to the country from which they had illegally entered, they accused the Croatian police officers of violence, hoping that such accusations would help them to re-enter Croatia and continue their journey towards their countries of final destination.",
"The Court’s assessment",
"(a) General principles",
"293. The Court refers to the principles concerning the “collective” nature of an expulsion summarised in N.D. and N.T. (cited above, §§ 193 ‑ 201). It reiterates that the decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (ibid., § 195). In line with this, in Hirsi Jamaa and Others (cited above, § 185) the Court found a violation of Article 4 of Protocol No. 4 because the applicants, who had been intercepted at high seas, were returned to Libya without the Italian authorities carrying out any identification or examination of their individual circumstances.",
"294. Exceptions to the above rule have been found in cases where the lack of an individual expulsion decision could be attributed to the applicant’s own conduct (see Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). In the case of N.D. and N.T. (cited above, § 201), the Court considered that the exception excluding the responsibility of a State under Article 4 of Protocol No. 4 should also apply to situations in which the conduct of persons who crossed a land border in an unauthorised manner, deliberately took advantage of their large numbers and used force, was such as to create a clearly disruptive situation which was difficult to control and endangered public safety. The Court added that in such situations, it should be taken into account whether the respondent State provided genuine and effective access to means of legal entry, in particular border procedures, and if it did, whether there were cogent reasons for the applicants not to make use of such means on account of objective facts for which the respondent State was responsible (ibid.).",
"(b) Application of the above principles to the present case",
"295. The Court notes the Government’s argument that the applicants had engaged in “culpable conduct” by circumventing the legal procedures that existed for entry into Croatia. It will therefore examine firstly whether the possibilities which, in the Government’s submission, were available to the applicants in order to enter Croatia lawfully, in particular with a view to claiming protection under Article 3, existed at the material time and, if so, whether they were genuinely and effectively accessible to them (see N.D. and N.T., cited above, § 211).",
"296. The Government contended that persons without identification documents, such as the applicants, could have sought entry to Croatia on humanitarian grounds, under section 36 of the Aliens Act (see paragraph 79 above). They submitted that in 2019 the authorities had issued eighty decisions granting entry to Croatia on that basis, providing two such decisions to the Court (see paragraph 83 above).",
"297. The Court observes that the humanitarian grounds referred to in section 36(1) of the Aliens Act are defined as emergency medical assistance, human organ donation, natural disasters and unforeseen events involving close family members such as severe illness or death (see paragraph 82 above). It does not see how any of these grounds applied to the applicants’ situation.",
"298. As for the two decisions submitted by the Government (see paragraph 83 above), the Court notes that one was issued to a Serbian national in possession of a valid passport on the grounds of unforeseen events involving close family members. The other decision was issued to a person born in Bosnia and Herzegovina on the grounds of urgent medical assistance. The Government did not submit any decision granting entry under section 36 of the Aliens Act for the purpose of seeking international protection.",
"299. Accordingly, the Court is not convinced that this legal avenue offered a possibility for the applicants to enter the country in order to claim protection under Article 3 of the Convention.",
"300. The Court further notes that under the International and Temporary Protection Act, an intention to seek international protection may be expressed at the border crossing, thus triggering the procedure for examination of the personal situation (see section 33(1) of that Act, cited in paragraph 78 above). However, apart from submitting the total number of applications for international protection made in Croatia (see paragraph 289 above), the Government did not supply, despite being expressly invited to do so, any specific information regarding the asylum procedures at the border with Serbia in 2017 or 2018, such as the location of the border crossing points, the modalities for lodging applications there, the availability of interpreters and legal assistance enabling asylum-seekers to be informed of their rights, and information showing that applications had actually been made at those border points (compare N.D. and N.T., cited above, §§ 212-17).",
"301. In the absence of such information, the Court is unable to examine whether the legal avenue referred to was genuinely and effectively accessible to the applicants at the time.",
"302. Lastly, the Court notes that the Government have not argued that the applicants could have submitted an application for international protection in the Croatian embassy in Serbia. Thus, such a legal avenue should be regarded as not available in this case.",
"303. Accordingly, on the basis of the information before it, the Court is unable to establish whether at the material time the respondent State provided the applicants with genuine and effective access to procedures for legal entry into Croatia, in particular with a view to claiming protection under Article 3 (ibid., § 211).",
"304. In the light of the above considerations, the Court finds that the removal to Serbia of the first applicant and the five child applicants (the ninth, tenth, twelfth, thirteenth and fourteenth applicants) on 21 November 2017, was of a collective nature, in breach of Article 4 of Protocol No. 4 to the Convention. Accordingly, there has been a violation of that Article.",
"ALLEGED VIOLATIONS OF ARTICLE 34 OF THE CONVENTION",
"305. The applicants further complained that by failing to comply with the interim measure indicated under Rule 39 of the Rules of Court, by preventing contact with their lawyer, by conducting a criminal investigation as regards the power of attorney which they had signed, and by interfering with their communication with their lawyer, the authorities had violated Article 34 of the Convention, which provides:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"Rule 39 provides:",
"“1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.",
"2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.",
"3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.",
"4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.”",
"Failure to comply with the interim measureThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"306. The applicants submitted that the State had failed to comply with the Court’s repeated request to transfer them from the Tovarnik Centre to an Article 3 compliant environment.",
"307. The Government contended that the State had not violated its obligation to comply with the interim measure issued by the Court since the conditions of the applicants’ placement in the Tovarnik Centre had complied with the requirements of Article 3 of the Convention. They reiterated their arguments submitted under Article 3 of the Convention.",
"The Court’s assessment",
"308. The Court notes that the applicants’ complaint under Article 34 of the Convention concerns, in effect, the respondent State’s obligations under Article 3 of the Convention. The question whether the respondent State in fact complied with the interim measure at issue is thus closely related to the examination of the complaints raised by the applicants under the latter Convention provision.",
"309. Given the nature of the interim measure applied in the present case, the parties’ submissions and the Court’s findings concerning the applicants’ complaint under Article 3 of the Convention (see paragraphs 191-213 above), the Court takes the view that it has examined the main legal question raised in respect of their situation in the Tovarnik Centre and that it does not need to give a separate ruling on the complaint under Article 34 of the Convention (see, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and R.R. and Others, cited above, § 107).",
"Alleged hindrance of the effective exercise of the applicants’ right of individual applicationAdmissibility",
"Admissibility",
"Admissibility",
"310. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"Merits",
"(a) The parties’ arguments",
"(i) The applicants",
"311. The applicants submitted that when they had entered Croatia on 21 March 2018 and been placed in the Tovarnik Centre, they had not been informed that S.B.J. had been trying to contact them. She had been denied the right to represent them on the grounds that the power of attorney signed in her favour by the applicants had not been valid, while the applicants were told that they were not allowed to have the same lawyer in the criminal investigation concerning the death of MAD.H. and the proceedings for international protection. The NGO that had wished to clarify the circumstances of the applicants’ signing the power of attorney in favour of S.B.J. had not been allowed to visit them in the Tovarnik Centre. The State had allowed the Croatian Children’s Ombudswoman to visit the applicants in the Tovarnik Centre and clarify whether they had authorised the lawyer S.B.J. to represent them only after the Court’s intervention under Rule 39.",
"312. The applicants argued that the initiation of a criminal investigation in respect of S.B.J. on suspicion of having forged the first and second applicants’ signatures on the power of attorney had been aimed at frightening her and preventing her from assisting the applicants with their case. That investigation had continued even after the first and second applicants had expressly confirmed to the investigating judge that they had signed the impugned power of attorney, and after the representative of an NGO who had been present during the signing had confirmed that fact.",
"313. The applicants lastly submitted that the telephone conversations between the fourth applicant and I.C. and the lawyer S.B.J. had been supervised by the police. The fourth applicant could not use her mobile phone freely while in the Tovarnik Centre, as it had been taken away from her from time to time.",
"(ii) The Government",
"314. The Government denied that the authorities had in any way interfered with the applicants’ right to lodge an application with the Court. During the entire period of their stay in Croatia the applicants had enjoyed legal assistance by either I.C. or S.B.J. They had effective access to different procedures in Croatia for the protection of their rights, such as the proceedings for international protection and the proceedings to challenge their placement in the Tovarnik Centre. They were able to lodge an application with the Court and request interim measures.",
"315. The Government contended that the initiation of the investigation into the powers of attorney signed in favour of S.B.J. had been lawful and justified. Once the first applicant had stated on 23 March 2018 that the signature on the power of attorney had not been hers, the police had had grounds for suspecting the criminal offence of forging a document. A graphologist’s expert report also indicated that the first and second applicants’ signatures had been forgeries and S.B.J. had herself admitted that she had not been present when the applicants had signed the powers of attorney in Serbia, contrary to section 18 of the Lawyers’ Ethics Code (see paragraph 84 above). S.B.J. had not had direct contact with the applicants, nor had she received clear instructions to commence the proceedings before the Court on their behalf. Consequently, the Croatian prosecuting authorities had clearly had an obligation to conduct the investigation, in order not only to protect the legal order, but also to protect the applicants.",
"316. The applicants had freely chosen I.C. to represent them in the international protection proceedings from the list of legal aid lawyers provided to them. That list had also included S.B.J., but the applicants had not chosen her, which proved that they did not have any real connection to her as they did not even recognise her name.",
"317. The Government lastly submitted that under the relevant domestic law, the authorities were obliged to allow NGOs and other human rights organisations access to (detention) centres only as regards aliens and asylum-seekers who were awaiting removal. The applicants had not been subjected to proceedings for forcible removal or deportation from Croatia.",
"(b) Third-party intervener - Hungarian Helsinki Committee",
"318. The Hungarian Helsinki Committee submitted that under the European Union directive concerning international protection, legal advisers had to have access to the applicant’s file and to clients held in detention facilities or transit zones. The Parliamentary Assembly of the Council of Europe had acknowledged the need to provide legal aid to asylum-seekers in Europe, particularly in the case of accelerated asylum procedures and for those at border zones and in detention facilities. Under the Court’s case-law, denying a detained asylum-seeker access to a lawyer, interfering with the confidentiality of the lawyer-applicant conversation and initiating reprisal measures against the legal representatives could lead to a breach of Article 34 of the Convention. They further stressed that the right of detained asylum-seekers to have access to the relevant NGOs was of paramount importance, and that under the European Union directive regulating the detention of migrants, States had an explicit obligation to allow such access. Any limitation of this right on security grounds was only to be imposed in exceptional cases, based on a strict interpretation of the concept of national security. States were allowed a certain measure of discretion in evaluating threats to national security and deciding how to combat them. Nevertheless, the Court tended to require national bodies to verify that any threat had a reasonable basis in fact.",
"(c) The Court’s assessment",
"(i) General principles",
"319. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998 ‑ IV, and Shtukaturov v. Russia, no. 44009/05, § 138, ECHR 2008).",
"320. The Court notes that an interference with the right of individual petition may take different forms.",
"321. Preventing applicants from meeting with their lawyers and communicating with them by telephone and correspondence with a view to pursuing their case before the Court has previously led the Court to find a violation of Article 34 of the Convention (see Shtukaturov, cited above, §§ 138-49, and D.B. v. Turkey, no. 33526/08, §§ 65-67, 13 July 2010).",
"322. The institution of criminal proceedings against a lawyer involved in the preparation of an application to the Commission has also been found to interfere with the applicant’s right of petition (see Şarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001). Indeed, the initiation of reprisal measures against legal representatives, even where no action is taken in the end, can amount to a violation, as the initiation of such measures could have a “chilling effect” on the exercise of the right of individual petition (see McShane v. the United Kingdom, no. 43290/98, § 151, 28 May 2002).",
"323. The Court has also held that the “general interest” requires that consultations with lawyers should be in conditions “which favour full and uninhibited discussion” (see Campbell v. the United Kingdom, 25 March 1992, §§ 46-48, Series A no. 233), and the police’s failure to respect the confidentiality of lawyer-applicant discussions has been found in breach of Article 34 of the Convention (see Oferta Plus S.R.L. v. Moldova no. 14385/04, §§ 145-56, 19 December 2006).",
"324. The Court has consistently held, albeit in the context of criminal proceedings, that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorski v. Croatia [GC], no. 25703/11, § 79, ECHR 2015, and the cases cited therein).",
"(ii) Application of the above principles in the present case",
"325. The Court observes that immediately after the applicants had been taken to Vrbanja Police Station on 21 March 2018, S.B.J. requested to meet with them and to take over their representation (see paragraph 56 above). She repeated her request the following day when she learned that the applicants had been placed in the Tovarnik Centre. The Court does not see why the authorities did not immediately inform the applicants that their lawyer was trying to contact them because, as mentioned by the Government, any doubts concerning the validity of the power of attorney signed by the first applicant could not have arisen until 23 March 2018, when the first applicant stated that the signature on the power of attorney was not hers (see paragraph 49 above). The fact that a person had been caught clandestinely crossing the Croatian-Serbian border could not serve as a basis for depriving that person of a lawyer’s assistance.",
"326. The Court further observes that during the interview concerning her application for international protection the first applicant stated that the signature on the impugned power of attorney was not hers (see paragraph 49 above). The Court accepts that at that moment doubts could have arisen as to the validity of the power of attorney and that, having regard to the vulnerability of the first applicant and to the entirety of her statement that she had signed certain documents in Serbia, the authorities had reasonable grounds to verify the matter.",
"327. In this connection the Court observes that on 28 March 2018 the authorities received a detailed explanation of the circumstances of the first applicant’s signing of the power of attorney in question from an employee of the Centre for Peace Studies NGO, who had been present during its signing in Serbia, and who had asked to meet the applicants in order to clarify the matter (see paragraph 58 and 59 above). However, his request was denied on security grounds. The domestic authorities and the Government did not submit any argument to show that the alleged security threat had any reasonable basis in fact (see, in this regard, Article 10 of the relevant European Union directive cited in paragraph 87 above).",
"328. The Court further observes that even though on 31 March 2018 the first and second applicants expressly confirmed to the investigating judge of the Vukovar County Court that they had signed the power of attorney in favour of S.B.J., the criminal investigation continued and the Vukovar Criminal Police visited the law firm of S.B.J., asked her to hand over the original of the power of attorney, and later on interviewed her and her colleagues as regards the circumstances under which the power of attorney had been signed (see paragraph 62 above). The Court notes that the Croatian Bar Association warned the Head of Police that those actions had been in breach of the Lawyers Act and had impeded the independence of the legal profession as guaranteed by the Croatian Constitution (see paragraph 64 above).",
"329. At the same time, the authorities must have known that on 4 April 2018 S.B.J. had lodged a request for an interim measure under Rule 39 on the applicants’ behalf, asking, inter alia, to be allowed to contact them (see paragraph 67 above). The Court notes that it took two exchanges of correspondence with the Government (on 6 and 25 April 2018) and almost one month for the State authorities to allow the Croatian Children’s Ombudswoman to visit the applicants in the Tovarnik Centre and clarify their legal representation by S.B.J. (see paragraphs 68 and 73 above). On 2 May 2018 the applicants met with the Croatian Children’s Ombudswoman and confirmed to her that they were aware that S.B.J. had instituted proceedings before the Court on their behalf, and that they wished to meet with her and be represented by her. Indeed, the Court notes that on 3 April 2018 S.B.J. informed the fourth applicant via Viber that she was requesting an interim measure from the Court and lodging a constitutional complaint with the Constitutional Court (see paragraph 61 above).",
"330. The Court notes that on 30 March 2018, nine days after they had been placed in detention, the applicants were asked to appoint a legal aid lawyer, unaware as they were that their chosen lawyer had been trying to contact them since 21 March 2018 (see, mutatis mutandis, Dvorski, cited above, § 93). Therefore, while the applicants formally chose I.C. as their legal aid lawyer in the proceedings concerning their application for international protection, that choice was not an informed one because they had had no knowledge that S.B.J., whom they had previously appointed to represent them, had been asking to meet them.",
"331. As to the Government’s argument that S.B.J. was on the list of legal aid lawyers but that the applicants had not appointed her because they clearly had no real connection with her, the Court notes that the applicants are Afghan nationals, with no knowledge of the Croatian language. They had not met S.B.J. in person when signing the power of attorney but had appointed her on a recommendation from the NGOs. They were in a vulnerable situation, having lost their daughter and wanting that matter to be investigated. In those circumstances, the Court does not blame the applicants for not recognising S.B.J. on the list of names of legal aid lawyers. Indeed, it was for the State authorities to inform them that she had been trying to contact them (compare, mutatis mutandis, Dvorski, cited above, §§ 87 and 93).",
"332. As to the Government’s argument that the first and second applicants signed the power of attorney in favour of S.B.J. in the presence of NGO representatives without her being personally present, the Court recognises that in the migration context NGOs regularly work alongside lawyers and help them establish a connection with persons in need, since they have greater opportunities for contact with such persons (compare Hirsi Jamaa and Others, cited above, § 49).",
"333. It follows that the applicants, despite having appointed S.B.J. in December 2017 to represent them in all proceedings before the Croatian authorities, were left in detention without any legal assistance from 21 March to 2 April 2018, when the legal aid lawyer visited them in the Tovarnik Centre, and without the assistance of their chosen lawyer until 7 May 2018 (see paragraph 66 above). The Court has already held under Article 2 that owing to these circumstances, the applicants were unable to effectively participate in the criminal investigation into the death of MAD.H. (see paragraph 164 above).",
"334. Moreover, it was only owing to the persistence of the lawyer S.B.J. that the applicants’ grievances were brought to the Court’s attention. As noted above, the authorities could not have been unaware that she had lodged a Rule 39 request and an application with the Court on the applicants’ behalf, and yet they continued to prevent contact between them until 7 May 2018. In such circumstances the authorities interfered with the applicants’ rights under Article 34 of the Convention.",
"335. The Court takes the view that the authorities also interfered with the applicants’ right of individual petition by putting undue pressure on S.B.J. in connection with the power of attorney signed in her favour by the first and second applicants (see, mutatis mutandis, Oferta Plus S.R.L ., cited above, § 137). The Court finds that proceeding with the criminal investigation even after the applicants had confirmed to the investigating judge that they had signed the impugned power of attorney could have had a chilling effect on the exercise of the right of individual petition by the applicants and their representative. In that context, it is irrelevant that ultimately no criminal indictment was apparently brought in that regard (see, mutatis mutandis, McShane, cited above, § 151).",
"336. The Court considers that, on the basis of the material before it, there are sufficiently strong grounds for deducing that the restriction of contact between the applicants and their chosen lawyer S.B.J., and the criminal investigation and pressure to which that lawyer was subjected were aimed at discouraging them from pursuing the present case before the Court. Accordingly, there has been a breach of Article 34 of the Convention.",
"337. Having regard to the above-mentioned findings, the Court sees no need to examine the applicants’ complaint regarding the monitoring of conversations with their lawyer.",
"OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"338. The applicants complained that their detention in the Tovarnik Centre had amounted to a violation of Article 8 of the Convention, and that they had been discriminated against on the basis of their status as migrant asylum-seekers, in breach of Article 14 of the Convention, taken in conjunction with Articles 3, 5 and 8 of the Convention and Article 4 of Protocol No. 4, and Article 1 of Protocol No. 12. The Government contested those allegations.",
"339. The Court considers that the main issues in the present case have been analysed and that in the circumstances it is not necessary to examine the complaints under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 156).",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"340. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"341. In application no. 15670/18, the applicants claimed 350,000 euros (EUR) in respect of non-pecuniary damage. In application no. 43115/18, they claimed EUR 300,000 in respect of non-pecuniary damage.",
"342. The Government contested the applicants’ claims as excessive and unsubstantiated.",
"343. The Court has found serious violations of several Convention provisions such as Articles 2, 3 and 5 and Article 4 of Protocol No. 4. It has also held the respondent State responsible for hindering the effective exercise of the applicants’ right of individual application under Article 34 of the Convention. The Court considers that in view of the violations found, the applicants undeniably suffered non-pecuniary damage which cannot be made good by the mere finding of a violation. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them EUR 40,000 jointly, plus any tax that may be chargeable to them on that amount.",
"Costs and expenses",
"344. The applicants claimed 226,973.82 Croatian kunas (approximately EUR 30,000) for the costs and expenses incurred before the domestic courts and the Court.",
"345. The Government submitted that the applicants’ claims were excessive and unsubstantiated.",
"346. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the amount paid to the applicants’ representative in connection with the legal aid granted in the proceedings before the domestic authorities and before the Court, the Court considers it reasonable to award the sum of EUR 16,700 covering costs under all heads, plus any tax that may be chargeable to the applicants.",
"Default interest",
"347. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
2 | Popov v. France | 19 January 2012 | The applicants, a married couple from Kazakhstan accompanied by their two children, applied for asylum in France, but their application was rejected, as were their applications for residence permits. In August 2007, the applicants and their children, then aged five months and three years, were arrested at their home and taken into police custody and the following day they were transferred to Charles-de-Gaulle airport to be flown back to Kazakhstan. The flight was cancelled, however, and the applicants and their children were then taken to the Rouen-Oissel administrative detention centre, which was authorised to accommodate families. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention had occurred with respect to the detention conditions of the children. It observed in particular that, while families were separated from other detainees at the Rouen-Oissel centre, the only beds available were iron-frame beds for adults, which were dangerous for children. Nor were there any play areas or activities for children, and the automatic doors to the rooms were dangerous for them. The Court further noted that the Council of Europe Commissioner for Human Rights and the European Committee for the Prevention of Torture and Inhuman or degrading Treatment or Punishment (CPT) had also pointed out that the stress, insecurity, and hostile atmosphere in these centres was bad for young children, in contradiction with international child protection principles according to which the authorities must do everything in their power to avoid detaining children for lengthy periods. Two weeks’ detention, while not in itself excessive, could seem like a very long time for children living in an environment ill-suited to their age. The conditions in which the applicants’ children had been obliged to live with their parents in a situation of particular vulnerability heightened by their detention were bound to cause them distress and have serious psychological repercussions. The Court found, however, that there had been no violation of Article 3 of the Convention in so far as detention conditions of the parents were concerned, noting in particular that the fact that they had not been separated from their children during their detention must have alleviated the feeling of helplessness, distress and frustration their stay at the administrative detention centre must have caused them. | Accompanied migrant minors in detention | Conditions of detention | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007.",
"A. Applicants’ arrival in France",
"6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002.",
"7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country.",
"8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003.",
"B. Asylum applications",
"9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals.",
"10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established.",
"11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below).",
"C. Refusal to grant residence permits together with an obligation to leave France and measures of administrative detention",
"1. First detention measure",
"12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month.",
"13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”.",
"14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin.",
"15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued.",
"2. Second detention measure",
"16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released.",
"17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision.",
"18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint.",
"3. Disputed measures of administrative detention",
"(a) First attempt to remove the applicants",
"19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of Rouen ‑ Oissel.",
"20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ...",
"The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre.",
"21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to Rouen ‑ Oissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision.",
"(b) Second attempt to remove applicants",
"22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary.",
"23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request.",
"24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre.",
"25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced.",
"D. Obtaining of refugee status",
"26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision.",
"27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status.",
"IV. ALTERNATIVES TO DETENTION",
"64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention.",
"..."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"...",
"B. Conditions of detention",
"...",
"31. The practice of detaining children accompanying their parents is governed by decree no. 2005 ‑ 617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows:",
"Article R. 553-3",
"“Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards:",
"1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours;",
"2. Non-mixed shared rooms, housing a maximum of six;",
"3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees;",
"4. A telephone freely accessible for every fifty detainees;",
"5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts;",
"6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees;",
"7. One or more rooms containing medical equipment, reserved for medical personnel;",
"8. A room for visits by family members and consular staff;",
"9. The room mentioned in Article R. 553-7, reserved for lawyers;",
"10. A room assigned to the organisation mentioned in Article R. 553-13;",
"11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14;",
"12. An area for open-air exercise;",
"13. A luggage room.",
"Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.”",
"Article L. 552-4",
"“By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.”",
"32. The Court notes that French law precludes the placement of minors in administrative detention:",
"Article L. 511-4",
"“An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of:",
"1 o An alien who is under eighteen years of age; ...”",
"Article L. 521-4",
"“Deportation cannot be ordered in respect of an alien under eighteen years of age.”",
"33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“ Centres et locaux de rétention administrative ”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis.",
"34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education.",
"...",
"D. Case-law",
"42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal.",
"1. Case-law of the ordinary courts",
"43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning:",
"“even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...”",
"44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”.",
"In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. It found that the reasons given by the Court of Appeal did not suffice for inhuman or degrading treatment to be established in the particular circumstances of the case.",
"45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds:",
"“the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...”",
"That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows:",
"“inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.”",
"2. Administrative case-law",
"46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child.",
"...",
"III. RELEVANT INTERNATIONAL LAW",
"...",
"B. Council of Europe",
"...",
"3. Commissioner for Human Rights",
"56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257).",
"The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity ( sic ) and very strong tensions” (§ 257).",
"57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma.",
"4. European Committee for the Prevention of Torture (CPT)",
"58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional.",
"In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”.",
"C. European Union",
"1. European Union legislation",
"59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 0098 ‑ 0107).",
"The relevant provision reads as follows:",
"“(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...”",
"60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention:",
"Chapter IV",
"Provisions for persons with special needs",
"Article 17",
"“General principle",
"1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...”",
"Article 18",
"“Minors",
"1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...”",
"61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows:",
"Article 24: The rights of the child",
"“... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...”",
"2. Report commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE)",
"62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive.",
"The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children.",
"The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention.",
"63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”.",
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"70. The applicants complained of a violation of Article 3 of the Convention. ... Secondly, they alleged that their placement in administrative detention, from 27 August to 12 September 2007, in view of the conditions and duration of the detention, had been incompatible with the provisions of Article 3 of the Convention. That provision reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"71. The Court begins by finding that the two applications should be joined.",
"...",
"B. The second aspect of the complaint alleging a violation of Article 3, on account of the conditions of administrative detention",
"...",
"2. Merits",
"(a) The parties’ arguments",
"76. The applicants observed that foreign minors were accorded particular protection under the specific texts applicable to them, in particular the New York Convention on the Rights of the Child of 26 January 1990.",
"77. The applicants added that the Rouen-Oissel detention centre was overcrowded and dilapidated, with a lack of privacy and a high level of tension, especially for children, who could not comprehend the reasons for the detention. They explained that the centre reverberated with noise, as announcements were constantly being made via loud-speakers, thus exacerbating the feeling of stress and confinement. Despite the possibility of using some childcare facilities, a detention centre remained totally unsuitable for very small children. They added that in the accommodation block the bedroom windows were covered with a tight grill that completely obscured the view of the courtyard outside.",
"78. On their arrival, the applicants’ personal belongings had been taken by the police officers, including the baby’s milk. The bottle was returned to them only after they had negotiated with the officers.",
"79. The applicants had only been able to receive one visit from a family member, for ten minutes and without the children being present. The eldest daughter had refused to eat while in the centre and showed signs of anxiety and stress. The second applicant’s requests concerning her daughter’s dietary preferences had been denied and no exemption had been authorised in order to adapt the proposed meals to the child’s needs. On several occasions the police officers had threatened the child with “placement by a judge” and the second applicant had been told that she was a “bad mother”.",
"80. The applicants added that, as they had no spare clothing, they had been obliged to put on damp clothes after washing them.",
"81. They further argued that, in addition to the unsuitability of the conditions on the premises, the duration of their detention had been totally incompatible with their children’s best interests and their eldest daughter had found it particularly traumatic, resulting in eating disorders and considerable anxiety and stress during and after her stay in the centre.",
"82. The Government observed that the administrative detention of illegal immigrants awaiting removal did not suffice in itself to establish the existence of inhuman and degrading treatment. They explained that in principle it was not prohibited to detain children accompanied by their parents. They recognised that it was necessary to preserve the child’s interest when families were detained and consequently, once the legitimacy of the parents’ detention had been established, there could be no question of separating them from their children.",
"83. In this connection they explained that the placement of minors in detention centres with their parents was not systematic and that other solutions existed. Moreover, the applicants had been placed in administrative detention in a hotel in Angers before being transferred to the airport. It was only because their flight had been cancelled that they had then been placed in the Rouen-Oissel centre.",
"84. The Government wished to distinguish the present case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI), where the applicant had been an unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010), where the Court had taken the view that the two eldest siblings were more vulnerable to the environment of the detention centre. Whilst in Muskhadzhiyeva and Others the children were aged seven months, three and a half, five and seven, in the present case the children were three years’ old and six months’ old. Applying the Court’s case-law, the Government argued that the age of the applicant children was such that they would have a limited perception of their environment. The Government noted that in Muskhadzhiyeva and Others the children’s psychological problems had been certified by doctors, one of them being diagnosed with “post-traumatic stress and showing an excess of anxiety far greater than that of children of her age”. They pointed out that it had been the combination of the children’s age and health, the length of the detention and the ill-adapted accommodation facilities that had led the Court to find the violation of Article 3 in that case.",
"85. The Government indicated that the authorities had deployed significant resources to improve the reception of families in detention. Rouen-Oissel was one of eleven centres that specifically catered for parents accompanied by their minor children. The Government explained that part of the centre was reserved for families, with family bedrooms containing facilities for children (childcare material and games). They did not dispute the fact that the windows were covered but pointed out that free access to the entire accommodation area, including indoor and outdoor yards, was possible between 7.30 a.m. and 10.30 p.m.",
"86. The Government observed that visits were in principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that these times could be extended for visitors travelling from afar. They were surprised by the applicants’ allegation that they had not enjoyed the right to receive visits.",
"87. The Government were also surprised by the allegation that police officers had proffered threats against the eldest child and noted that the accusations remained unsubstantiated. They further called into question the disorders from which the eldest child had allegedly suffered (refusal to eat, stress, anxiety) and wondered why the parents had not consulted the doctor on duty in the centre or used the infirmary. Moreover, they cast doubt on the alleged denial of the request for an exemption to adapt meals to the child’s needs. Article 13 of the internal rules provided for special menus, especially for reasons of age or health, thus applicable to very small children. In addition, the Government pointed out that families did not take their meals with the other individuals in the centre.",
"88. As regards the length of the detention, the Government observed that it was strictly governed by law and that the lawfulness of any placement in detention was reviewed by a judge. In addition, the length of the detention in the present case had been relatively short compared to that observed in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and Others, cited above.",
"(b) The Court’s assessment",
"(i) General principles",
"89. Concerning the general principles that are applicable in the area of administrative detention, the Court would refer to paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment, cited above.",
"90. As regards minors, more specifically, the Court observes that the international Convention on the Rights of the Child provides in Article 37 that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in custodial facilities pending their removal. In the case of Rahimi v. Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an unaccompanied minor in such a facility, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention, as degrading treatment in breach of Article 3 of the Convention.",
"The Court also found a violation of Article 3 in the Muskhadzhiyeva and Others judgment (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal.",
"(ii) Application to the present case",
"(α) In respect of the children",
"91. The Court observes that in the present case, as in Muskhadzhiyeva and Others, the applicant children were accompanied by their parents throughout the period of detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part of their positive obligations under Article 3 of the Convention (ibid., § 58) and that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). The European Union directive concerning the reception of aliens thus treats minors, whether or not they are accompanied, as a category of vulnerable persons particularly requiring the authorities’ attention (see paragraph 42 above). To be sure, children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court would, moreover, observe that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others, § 62).",
"92. The Court notes that during the period of detention in question, the applicant children were aged five months and three years, respectively. They were held for fifteen days at the Rouen-Oissel detention centre.",
"93. As regards the conditions of detention, the Court found that the Rouen-Oissel detention centre was among those “authorised” to receive families by the decree of 30 May 2005 (see paragraph 32 above). However, the Court observes that this text merely mentions the need to provide “bedrooms that are specially adapted, in particular for childcare” but does not expressly list the facilities required for the accommodation of families. Thus there are major discrepancies between the various centres in terms of the facilities provided, each centre’s director being responsible for such matters and free to take decisions, without having the support of staff specifically trained in education (see paragraph 32 above).",
"94. The applicants described the Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The detainees lived in constant fear of being deported, thus exacerbating tension that was already acute ...",
"95. It can be seen from the reports of visits to the Rouen-Oissel centre ... that whilst the authorities had been careful to separate families from other detainees, the facilities available in the “families” area of the centre were nevertheless ill-adapted to the presence of children: no children’s beds and adult beds with pointed metal corners, no activities for children, a very basic play area on a small piece of carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire netting, a tight grill over the bedroom windows obscuring the view outside, and automatically closing bedroom doors with consequent danger for children.",
"96. The Commissioner for Human Rights and the CPT also raised the question of administrative detention centres being unsuited to the accommodation of families and to the needs of children, taking the view that, in addition to the ill-adapted material conditions, the lack of privacy, stress, insecurity and hostile environment in such centres also had harmful consequences for minors, at odds with the international principles on the protection of children. In response to this criticism, the French authorities acknowledged, in 2006, that the furnishings in family rooms were not always adapted to infants (see paragraphs 38 to 40 above).",
"97. The Court notes that such findings have also been made by certain appellate courts, which in various rulings have observed that confinement in conditions such as those in the present case caused “great emotional and mental suffering” to minors, and that the “abnormal living conditions” imposed on very small children “exceeded the threshold of seriousness for the purposes of Article 3 of the Convention” (see paragraphs 34 to 36 above).",
"Having regard to the foregoing, the Court is of the opinion that the conditions in which the applicant children were held were not adapted to their age.",
"98. The Court reiterates that the detention of an alien must be carried out in good faith and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).",
"The Court observes that the various international texts recommend that the authorities should be required to implement all necessary means to limit, as far as possible, the duration of the detention of minors ...",
"99. Domestic law stipulates that the length of detention for aliens pending removal should be limited to the time strictly necessary to organise their departure ...",
"100. In the present case, the Court finds that the length of detention of the children, over a period of fifteen days, whilst not excessive per se, could be perceived by them as never-ending, bearing in mind that the facilities were ill-adapted to their accommodation and age.",
"101. In addition, the applicants maintained that detention in this ill-adapted centre had subjected the children, especially the eldest, to a situation of stress that had entailed mental distress.",
"The Court would observe, like the Government, that these allegations by the applicants have not been corroborated by any evidence. However, in view of its findings as to the unsuitability of the premises for the detention of children, the Court does not doubt that this situation created anxiety, psychological disturbance and degradation of the parental image in the eyes of the children.",
"102. It can be seen from the foregoing that the conditions in which the children were held, for fifteen days, in an adult environment, faced with a strong police presence, without any activities to keep them occupied, added to the parents’ distress, were manifestly ill-adapted to their age. The two children, a small girl of three and a baby, found themselves in a situation of particular vulnerability, accentuated by the confinement. Those living conditions inevitably created for them a situation of stress and anxiety, with particularly traumatic consequences.",
"103. Accordingly, in view of the children’s young age, the length of their detention and the conditions of their confinement in a detention centre, the Court is of the view that the authorities failed to take into account the inevitably harmful consequences for the children. It finds that the authorities’ treatment of the children was not compatible with the provisions of the Convention and exceeded the threshold of seriousness for Article 3 of the Convention to be engaged. There has therefore been a violation of that Article in respect of the children.",
"(β) In respect of the parents",
"104. The Court would reiterate that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 61, and Muskhadzhiyeva and Others, cited above, § 64).",
"105. As in the case of Muskhadzhiyeva and Others, the Court finds that, whilst the administrative detention of the applicants with their children in a centre could have created a feeling of powerlessness, together with anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings, such that the threshold required for a violation of Article 3 has not been reached. Accordingly, there has been no violation of Article 3 of the Convention in respect of the parents.",
"III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND 5 § 4 OF THE CONVENTION",
"106. The applicants argued that their administrative detention from 27 August to 12 September 2007 had taken place in conditions and for a duration that entailed a breach of Article 5 § 1 (f). The present case also raises an issue under Article 5 § 4. Those provisions read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"...",
"2. Merits",
"(a) The parties’ submissions",
"108. The applicants noted that a measure of removal or placement in detention could not, in principle, be taken against minors. As the measure concerned the parents and not the children themselves, the detention of children therefore had no legal basis or safeguards.",
"109. They added that the alternative of entrusting children to the care of a third party, as mentioned by the Government, was only a theoretical possibility as it would inevitably entail the separation of families for an indefinite duration. The applicants inferred that, for this reason, detention was not reasonably necessary.",
"110. The Government did not dispute the fact that the administrative detention of illegal immigrants constituted a restriction on their freedom of movement. They observed, however, that in the present case the detention had been imposed in a context of deportation, a situation that was provided for in Article 5 § 1 (f) of the Convention. The Government argued that administrative detention was prescribed by law and strictly supervised in domestic law. They were of the opinion that the French law on administrative detention had the “necessary qualities” and sufficient safeguards to preclude any risk of arbitrariness.",
"111. As regards the status of minors accompanying their parents, the Government pointed out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhivyeva and Others, cited above, the Court took the view that the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. They recognised, however, that in the present case, the minor applicants had not been placed in detention on a personal basis and that minors were usually protected against any removal measure. The Government explained that this restriction did not, however, prevent a minor from accompanying his or her parents in the detention centre when they were affected by a measure of removal.",
"112. The Government added that parents placed in detention could always opt for the alternative of entrusting their children to the care of third parties. They insisted that, in any event, the Rouen-Oissel centre was specifically adapted to the children’s situation of vulnerability on account of their status and that their detention was thus compliant with the provisions of the Convention.",
"113. As to whether the applicants had a remedy, in accordance with Article 5 § 4 of the Convention, through which they could challenge the lawfulness of their detention, the Government observed that any individual who was placed in administrative detention by order of the prefect was entitled to challenge that decision before the administrative courts. During the detention, the liberties and detention judge reviewed its lawfulness after forty-eight hours and again after fifteen days. As regards the particular case of children who were not entitled to challenge a measure of detention that was not directed against them personally, the Government explained that parents could use such remedies on behalf of their minor children.",
"114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article 5 of the Convention.",
"(b) The Court’s assessment",
"115. The Court observes that the period under consideration, during which the applicants were placed in an administrative detention centre, lasted from 28 August to 12 September 2007.",
"(i) Article 5 § 1 (f) of the Convention",
"116. The Court reiterates that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. Deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress (see Chahal v. the United Kingdom, 15 November 1996, §§ 112-113, Reports of Judgments and Decisions 1996 ‑ V).",
"117. Whilst the general rule set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 § 1 (f) provides an exception to that general rule, permitting States to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Chahal, cited above, § 73, and Saadi, cited above, § 64).",
"118. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III). The Court has already stated, in two cases concerning similar facts, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and Others, cited above, § 73); lastly, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and Rahimi, cited above, § 106).",
"119. In the present case, the members of the family were held in administrative detention on account of the illegality of their presence in France, on premises that were not adapted to the children’s extreme vulnerability (see paragraphs 66 et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available. The Court thus finds that the French system did not sufficiently protect their right to liberty.",
"120. As regards the parents, however, the Court observes that Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary (see Chahal, cited above, § 112).",
"121. Consequently, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the children.",
"(ii) Article 5 § 4 of the Convention",
"122. The Court reiterates that the notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person according to Article 5 § 1 (see Chahal, cited above, § 127; S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited above, § 113).",
"123. The Court observes that the applicant parents were able to challenge their detention before the domestic courts: they applied to the administrative court for the annulment of the decision imposing on them an obligation to leave the country and then, during the period of administrative detention, the liberties and detention judge and the Court of Appeal ruled on the lawfulness of the detention. In this connection, the Court notes that on 12 September 2007 the liberties and detention judge decided that the failure to enforce the applicants’ removal could not be attributed to them and annulled the detention. The Court cannot but infer from this that the parents had the possibility of using a remedy by which to obtain a decision on the lawfulness of their detention. There has not therefore been a violation of Article 5 § 4 in respect of the parents.",
"124. However, the Court notes that the law does not provide for the possibility of placing minors in administrative detention. As a result, children “accompanying” their parents find themselves in a legal vacuum, preventing them from using any remedies available to their parents. In the present case, there had been no order of the prefect for their removal that they could have challenged before the courts. Similarly, there had been no decision ordering their placement in administrative detention and the liberties and detention judge was therefore unable to review the lawfulness of their presence in the administrative detention centre. The Court thus finds that they were not guaranteed the protection required by the Convention.",
"125. Accordingly, there has been a violation of Article 5 § 4 of the Convention in respect of the children.",
"IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"126. The applicants complained, firstly, that the order for their removal to Kazakhstan had constituted a disproportionate interference with their right to a private and family life. They argued, secondly, that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. They relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"...",
"B. The second head of the complaint",
"...",
"2. Merits",
"(a) The parties’ submissions",
"130. The applicants argued that no aim could justify their placement in detention and that the measure had been disproportionate. They pointed out that they had provided sufficient guarantees that they would not abscond and could have been ordered to reside at a specific address; and whilst there was no question of separating parents from their children in the case of placement in detention, a compulsory residence order would nevertheless, in the present case, have been better suited to their situation.",
"131. The Government observed that the applicants had enjoyed material conditions of reception adapted to families and had been accommodated on premises that catered specially for that purpose. They further noted that the present case did not raise any issue of family reunification.",
"(b) The Court’s assessment",
"132. The Court finds that there is no doubt as to the existence of “family life”, within the meaning of the Marckx v. Belgium case-law (13 June 1979, Series A no. 31), in the present case, and this has not in fact been disputed by the Government. Article 8 is thus applicable to the situation complained of by the applicants.",
"133. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities and this creates positive obligations inherent in effective “respect” for family life (see Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII). States are under an obligation to “act in a manner calculated to allow those concerned to lead a normal family life” (see Marckx, cited above, § 31).",
"134. The Court is of the opinion that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130), it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained. It finds that the fact of confining the applicants to a detention centre, for fifteen days, thereby subjecting them to custodial living conditions typical of that kind of institution, can be regarded as an interference with the effective exercise of their family life.",
"135. Such an interference entails a violation of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article, that is, if it is “in accordance with the law”, pursues one or more of the aims enumerated in that provision, and is “necessary in a democratic society” for the fulfilment of the said aim or aims.",
"136. The Court observes that the legal basis for the detention of the parents was Article L. 554 ‑ 1 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"137. As regards the aim pursued by the measure in question, the Court observes that it was taken in the context of the prevention of illegal immigration and the control of the entry and residence of aliens. The decision could have been in the interests of national security or the economic well-being of the country or, just as equally, intended to prevent disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention.",
"138. The Court must further determine whether the family’s placement in detention, for a duration such as that in the present case, was necessary within the meaning of Article 8 § 2 of the Convention, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 80).",
"139. The Court would observe in this connection that the authorities have a duty to strike a fair balance between the competing interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). It emphasises that this balance should be guaranteed taking account of international conventions, in particular the Convention on the Rights of the Child (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 120, 28 June 2007). The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled.",
"140. A measure of confinement must therefore be proportionate to the aim pursued by the authorities, namely the enforcement of a removal decision in the present case. It can be seen from the Court’s case-law that, where families are concerned, the authorities must, in assessing proportionality, take account of the child’s best interests. In this connection the Court would point out that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Rahimi, cited above, § 108, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).",
"141. Under the international Convention on the Rights of the Child (Article 3) the best interests of the child must be a primary consideration in all actions concerning children. Similarly, the “reception” directive (see paragraph 42 above), as transposed in the CESEDA legislation, provides expressly that member States must ensure that the child’s best interest is a primary consideration. It can also be seen from international reports (see above, under relevant international law) that the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort ...",
"142. The Court notes that the French practice of keeping families pending their deportation in detention centres has been criticised and that France is one of only three European countries which systematically have recourse to the detention of accompanied immigrant minors (see the report of the LIBE Committee, paragraph 44 above).",
"143. The Court further observes that since 1999 the UNHCR has invited States to study all alternatives to detention in the case of children accompanying their parents and to have recourse to detention only where there is no other means of keeping the family together ...",
"144. The Court notes, lastly, that the CNDS (National Commission for Ethics and Security) and the Défenseur des enfants (Children’s Defender) have, on various occasions, criticised the detention of children who have not committed any criminal offence, whether or not they are accompanied, calling for their best interests to be upheld. In their view, when the parents of minors are awaiting removal, a compulsory residence measure, or failing that, rented hotel accommodation, should be considered as a priority ...",
"145. In the present case, the applicants did not present any risk of absconding that required their detention. Their confinement in a secure centre did not therefore appear justified by a pressing social need, especially as their compulsory residence in a hotel during the first phase of their administrative detention does not seem to have caused any problems.",
"146. The Court finds that there is no indication in the material transmitted by the Government that any alternative to detention was envisaged, whether a compulsory residence measure or, as decided by the Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19 above). Neither does it appear that the authorities ever re-examined the possibility of confinement outside a detention centre during the period in question.",
"Lastly, it does not appear from the facts of the case that the authorities took all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. The applicants were held for fifteen days without any flight being arranged for them.",
"147. The Court is aware that a similar complaint was previously declared inadmissible, concerning the detention of four children with their mother for a period of one month, with no alternative to detention having been envisaged (see Muskhadzhivyeva and Others, cited above). However, in view of the foregoing and the recent developments in the case-law concerning the “child’s best interests” in the context of the detention of immigrant minors (see Rahimi, cited above), the Court cannot agree with the arguments of the Government claiming that the children’s best interests were upheld in the present case. The Court is of the view that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. In the absence of any indication to suggest that the family was going to abscond, the measure of detention for fifteen days in a secure centre appears disproportionate to the aim pursued.",
"148. Accordingly, the Court finds that the applicants sustained a disproportionate interference with their right to respect for their family life and that there has been a violation of Article 8 of the Convention.",
"..."
] |
3 | Popov v. France | 19 January 2012 | This case concerned the administrative detention of a couple of asylum-seekers and their two underage children for two weeks pending their removal. They complained in particular that their detention had been unlawful. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention in respect of the children. It found in particular that, although the children had been placed with their parents in a wing reserved for families, their particular situation had not been taken into account by the French authorities, who had not sought to establish whether any alternative solution, other than administrative detention, could have been envisaged. The Court also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention concerning the children. In this respect, it noted in particular that, while the parents had had the possibility to have the lawfulness of their detention examined by the French courts, the children “accompanying” their parents had found themselves in a legal void, unable to avail themselves of such a remedy. In the present case no removal order had been issued against the children that they might have challenged in court. Nor had their administrative detention been ordered, so the courts had not been able to examine the lawfulness of their presence in the administrative detention centre. That being so, they had not enjoyed the protection required by the Convention. | Accompanied migrant minors in detention | Deprivation of liberty and challenging the lawfulness of detention | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007.",
"A. Applicants’ arrival in France",
"6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002.",
"7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country.",
"8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003.",
"B. Asylum applications",
"9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals.",
"10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established.",
"11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below).",
"C. Refusal to grant residence permits together with an obligation to leave France and measures of administrative detention",
"1. First detention measure",
"12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month.",
"13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”.",
"14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin.",
"15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued.",
"2. Second detention measure",
"16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released.",
"17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision.",
"18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint.",
"3. Disputed measures of administrative detention",
"(a) First attempt to remove the applicants",
"19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of Rouen ‑ Oissel.",
"20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ...",
"The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre.",
"21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to Rouen ‑ Oissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision.",
"(b) Second attempt to remove applicants",
"22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary.",
"23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request.",
"24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre.",
"25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced.",
"D. Obtaining of refugee status",
"26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision.",
"27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status.",
"IV. ALTERNATIVES TO DETENTION",
"64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention.",
"..."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"...",
"B. Conditions of detention",
"...",
"31. The practice of detaining children accompanying their parents is governed by decree no. 2005 ‑ 617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows:",
"Article R. 553-3",
"“Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards:",
"1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours;",
"2. Non-mixed shared rooms, housing a maximum of six;",
"3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees;",
"4. A telephone freely accessible for every fifty detainees;",
"5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts;",
"6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees;",
"7. One or more rooms containing medical equipment, reserved for medical personnel;",
"8. A room for visits by family members and consular staff;",
"9. The room mentioned in Article R. 553-7, reserved for lawyers;",
"10. A room assigned to the organisation mentioned in Article R. 553-13;",
"11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14;",
"12. An area for open-air exercise;",
"13. A luggage room.",
"Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.”",
"Article L. 552-4",
"“By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.”",
"32. The Court notes that French law precludes the placement of minors in administrative detention:",
"Article L. 511-4",
"“An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of:",
"1 o An alien who is under eighteen years of age; ...”",
"Article L. 521-4",
"“Deportation cannot be ordered in respect of an alien under eighteen years of age.”",
"33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“ Centres et locaux de rétention administrative ”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis.",
"34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education.",
"...",
"D. Case-law",
"42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal.",
"1. Case-law of the ordinary courts",
"43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning:",
"“even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...”",
"44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”.",
"In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. It found that the reasons given by the Court of Appeal did not suffice for inhuman or degrading treatment to be established in the particular circumstances of the case.",
"45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds:",
"“the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...”",
"That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows:",
"“inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.”",
"2. Administrative case-law",
"46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child.",
"...",
"III. RELEVANT INTERNATIONAL LAW",
"...",
"B. Council of Europe",
"...",
"3. Commissioner for Human Rights",
"56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257).",
"The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity ( sic ) and very strong tensions” (§ 257).",
"57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma.",
"4. European Committee for the Prevention of Torture (CPT)",
"58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional.",
"In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”.",
"C. European Union",
"1. European Union legislation",
"59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 0098 ‑ 0107).",
"The relevant provision reads as follows:",
"“(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...”",
"60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention:",
"Chapter IV",
"Provisions for persons with special needs",
"Article 17",
"“General principle",
"1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...”",
"Article 18",
"“Minors",
"1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...”",
"61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows:",
"Article 24: The rights of the child",
"“... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...”",
"2. Report commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE)",
"62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive.",
"The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children.",
"The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention.",
"63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”.",
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"70. The applicants complained of a violation of Article 3 of the Convention. ... Secondly, they alleged that their placement in administrative detention, from 27 August to 12 September 2007, in view of the conditions and duration of the detention, had been incompatible with the provisions of Article 3 of the Convention. That provision reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"71. The Court begins by finding that the two applications should be joined.",
"...",
"B. The second aspect of the complaint alleging a violation of Article 3, on account of the conditions of administrative detention",
"...",
"2. Merits",
"(a) The parties’ arguments",
"76. The applicants observed that foreign minors were accorded particular protection under the specific texts applicable to them, in particular the New York Convention on the Rights of the Child of 26 January 1990.",
"77. The applicants added that the Rouen-Oissel detention centre was overcrowded and dilapidated, with a lack of privacy and a high level of tension, especially for children, who could not comprehend the reasons for the detention. They explained that the centre reverberated with noise, as announcements were constantly being made via loud-speakers, thus exacerbating the feeling of stress and confinement. Despite the possibility of using some childcare facilities, a detention centre remained totally unsuitable for very small children. They added that in the accommodation block the bedroom windows were covered with a tight grill that completely obscured the view of the courtyard outside.",
"78. On their arrival, the applicants’ personal belongings had been taken by the police officers, including the baby’s milk. The bottle was returned to them only after they had negotiated with the officers.",
"79. The applicants had only been able to receive one visit from a family member, for ten minutes and without the children being present. The eldest daughter had refused to eat while in the centre and showed signs of anxiety and stress. The second applicant’s requests concerning her daughter’s dietary preferences had been denied and no exemption had been authorised in order to adapt the proposed meals to the child’s needs. On several occasions the police officers had threatened the child with “placement by a judge” and the second applicant had been told that she was a “bad mother”.",
"80. The applicants added that, as they had no spare clothing, they had been obliged to put on damp clothes after washing them.",
"81. They further argued that, in addition to the unsuitability of the conditions on the premises, the duration of their detention had been totally incompatible with their children’s best interests and their eldest daughter had found it particularly traumatic, resulting in eating disorders and considerable anxiety and stress during and after her stay in the centre.",
"82. The Government observed that the administrative detention of illegal immigrants awaiting removal did not suffice in itself to establish the existence of inhuman and degrading treatment. They explained that in principle it was not prohibited to detain children accompanied by their parents. They recognised that it was necessary to preserve the child’s interest when families were detained and consequently, once the legitimacy of the parents’ detention had been established, there could be no question of separating them from their children.",
"83. In this connection they explained that the placement of minors in detention centres with their parents was not systematic and that other solutions existed. Moreover, the applicants had been placed in administrative detention in a hotel in Angers before being transferred to the airport. It was only because their flight had been cancelled that they had then been placed in the Rouen-Oissel centre.",
"84. The Government wished to distinguish the present case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI), where the applicant had been an unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010), where the Court had taken the view that the two eldest siblings were more vulnerable to the environment of the detention centre. Whilst in Muskhadzhiyeva and Others the children were aged seven months, three and a half, five and seven, in the present case the children were three years’ old and six months’ old. Applying the Court’s case-law, the Government argued that the age of the applicant children was such that they would have a limited perception of their environment. The Government noted that in Muskhadzhiyeva and Others the children’s psychological problems had been certified by doctors, one of them being diagnosed with “post-traumatic stress and showing an excess of anxiety far greater than that of children of her age”. They pointed out that it had been the combination of the children’s age and health, the length of the detention and the ill-adapted accommodation facilities that had led the Court to find the violation of Article 3 in that case.",
"85. The Government indicated that the authorities had deployed significant resources to improve the reception of families in detention. Rouen-Oissel was one of eleven centres that specifically catered for parents accompanied by their minor children. The Government explained that part of the centre was reserved for families, with family bedrooms containing facilities for children (childcare material and games). They did not dispute the fact that the windows were covered but pointed out that free access to the entire accommodation area, including indoor and outdoor yards, was possible between 7.30 a.m. and 10.30 p.m.",
"86. The Government observed that visits were in principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that these times could be extended for visitors travelling from afar. They were surprised by the applicants’ allegation that they had not enjoyed the right to receive visits.",
"87. The Government were also surprised by the allegation that police officers had proffered threats against the eldest child and noted that the accusations remained unsubstantiated. They further called into question the disorders from which the eldest child had allegedly suffered (refusal to eat, stress, anxiety) and wondered why the parents had not consulted the doctor on duty in the centre or used the infirmary. Moreover, they cast doubt on the alleged denial of the request for an exemption to adapt meals to the child’s needs. Article 13 of the internal rules provided for special menus, especially for reasons of age or health, thus applicable to very small children. In addition, the Government pointed out that families did not take their meals with the other individuals in the centre.",
"88. As regards the length of the detention, the Government observed that it was strictly governed by law and that the lawfulness of any placement in detention was reviewed by a judge. In addition, the length of the detention in the present case had been relatively short compared to that observed in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and Others, cited above.",
"(b) The Court’s assessment",
"(i) General principles",
"89. Concerning the general principles that are applicable in the area of administrative detention, the Court would refer to paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment, cited above.",
"90. As regards minors, more specifically, the Court observes that the international Convention on the Rights of the Child provides in Article 37 that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in custodial facilities pending their removal. In the case of Rahimi v. Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an unaccompanied minor in such a facility, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention, as degrading treatment in breach of Article 3 of the Convention.",
"The Court also found a violation of Article 3 in the Muskhadzhiyeva and Others judgment (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal.",
"(ii) Application to the present case",
"(α) In respect of the children",
"91. The Court observes that in the present case, as in Muskhadzhiyeva and Others, the applicant children were accompanied by their parents throughout the period of detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part of their positive obligations under Article 3 of the Convention (ibid., § 58) and that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). The European Union directive concerning the reception of aliens thus treats minors, whether or not they are accompanied, as a category of vulnerable persons particularly requiring the authorities’ attention (see paragraph 42 above). To be sure, children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court would, moreover, observe that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others, § 62).",
"92. The Court notes that during the period of detention in question, the applicant children were aged five months and three years, respectively. They were held for fifteen days at the Rouen-Oissel detention centre.",
"93. As regards the conditions of detention, the Court found that the Rouen-Oissel detention centre was among those “authorised” to receive families by the decree of 30 May 2005 (see paragraph 32 above). However, the Court observes that this text merely mentions the need to provide “bedrooms that are specially adapted, in particular for childcare” but does not expressly list the facilities required for the accommodation of families. Thus there are major discrepancies between the various centres in terms of the facilities provided, each centre’s director being responsible for such matters and free to take decisions, without having the support of staff specifically trained in education (see paragraph 32 above).",
"94. The applicants described the Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The detainees lived in constant fear of being deported, thus exacerbating tension that was already acute ...",
"95. It can be seen from the reports of visits to the Rouen-Oissel centre ... that whilst the authorities had been careful to separate families from other detainees, the facilities available in the “families” area of the centre were nevertheless ill-adapted to the presence of children: no children’s beds and adult beds with pointed metal corners, no activities for children, a very basic play area on a small piece of carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire netting, a tight grill over the bedroom windows obscuring the view outside, and automatically closing bedroom doors with consequent danger for children.",
"96. The Commissioner for Human Rights and the CPT also raised the question of administrative detention centres being unsuited to the accommodation of families and to the needs of children, taking the view that, in addition to the ill-adapted material conditions, the lack of privacy, stress, insecurity and hostile environment in such centres also had harmful consequences for minors, at odds with the international principles on the protection of children. In response to this criticism, the French authorities acknowledged, in 2006, that the furnishings in family rooms were not always adapted to infants (see paragraphs 38 to 40 above).",
"97. The Court notes that such findings have also been made by certain appellate courts, which in various rulings have observed that confinement in conditions such as those in the present case caused “great emotional and mental suffering” to minors, and that the “abnormal living conditions” imposed on very small children “exceeded the threshold of seriousness for the purposes of Article 3 of the Convention” (see paragraphs 34 to 36 above).",
"Having regard to the foregoing, the Court is of the opinion that the conditions in which the applicant children were held were not adapted to their age.",
"98. The Court reiterates that the detention of an alien must be carried out in good faith and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).",
"The Court observes that the various international texts recommend that the authorities should be required to implement all necessary means to limit, as far as possible, the duration of the detention of minors ...",
"99. Domestic law stipulates that the length of detention for aliens pending removal should be limited to the time strictly necessary to organise their departure ...",
"100. In the present case, the Court finds that the length of detention of the children, over a period of fifteen days, whilst not excessive per se, could be perceived by them as never-ending, bearing in mind that the facilities were ill-adapted to their accommodation and age.",
"101. In addition, the applicants maintained that detention in this ill-adapted centre had subjected the children, especially the eldest, to a situation of stress that had entailed mental distress.",
"The Court would observe, like the Government, that these allegations by the applicants have not been corroborated by any evidence. However, in view of its findings as to the unsuitability of the premises for the detention of children, the Court does not doubt that this situation created anxiety, psychological disturbance and degradation of the parental image in the eyes of the children.",
"102. It can be seen from the foregoing that the conditions in which the children were held, for fifteen days, in an adult environment, faced with a strong police presence, without any activities to keep them occupied, added to the parents’ distress, were manifestly ill-adapted to their age. The two children, a small girl of three and a baby, found themselves in a situation of particular vulnerability, accentuated by the confinement. Those living conditions inevitably created for them a situation of stress and anxiety, with particularly traumatic consequences.",
"103. Accordingly, in view of the children’s young age, the length of their detention and the conditions of their confinement in a detention centre, the Court is of the view that the authorities failed to take into account the inevitably harmful consequences for the children. It finds that the authorities’ treatment of the children was not compatible with the provisions of the Convention and exceeded the threshold of seriousness for Article 3 of the Convention to be engaged. There has therefore been a violation of that Article in respect of the children.",
"(β) In respect of the parents",
"104. The Court would reiterate that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 61, and Muskhadzhiyeva and Others, cited above, § 64).",
"105. As in the case of Muskhadzhiyeva and Others, the Court finds that, whilst the administrative detention of the applicants with their children in a centre could have created a feeling of powerlessness, together with anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings, such that the threshold required for a violation of Article 3 has not been reached. Accordingly, there has been no violation of Article 3 of the Convention in respect of the parents.",
"III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND 5 § 4 OF THE CONVENTION",
"106. The applicants argued that their administrative detention from 27 August to 12 September 2007 had taken place in conditions and for a duration that entailed a breach of Article 5 § 1 (f). The present case also raises an issue under Article 5 § 4. Those provisions read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"...",
"2. Merits",
"(a) The parties’ submissions",
"108. The applicants noted that a measure of removal or placement in detention could not, in principle, be taken against minors. As the measure concerned the parents and not the children themselves, the detention of children therefore had no legal basis or safeguards.",
"109. They added that the alternative of entrusting children to the care of a third party, as mentioned by the Government, was only a theoretical possibility as it would inevitably entail the separation of families for an indefinite duration. The applicants inferred that, for this reason, detention was not reasonably necessary.",
"110. The Government did not dispute the fact that the administrative detention of illegal immigrants constituted a restriction on their freedom of movement. They observed, however, that in the present case the detention had been imposed in a context of deportation, a situation that was provided for in Article 5 § 1 (f) of the Convention. The Government argued that administrative detention was prescribed by law and strictly supervised in domestic law. They were of the opinion that the French law on administrative detention had the “necessary qualities” and sufficient safeguards to preclude any risk of arbitrariness.",
"111. As regards the status of minors accompanying their parents, the Government pointed out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhivyeva and Others, cited above, the Court took the view that the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. They recognised, however, that in the present case, the minor applicants had not been placed in detention on a personal basis and that minors were usually protected against any removal measure. The Government explained that this restriction did not, however, prevent a minor from accompanying his or her parents in the detention centre when they were affected by a measure of removal.",
"112. The Government added that parents placed in detention could always opt for the alternative of entrusting their children to the care of third parties. They insisted that, in any event, the Rouen-Oissel centre was specifically adapted to the children’s situation of vulnerability on account of their status and that their detention was thus compliant with the provisions of the Convention.",
"113. As to whether the applicants had a remedy, in accordance with Article 5 § 4 of the Convention, through which they could challenge the lawfulness of their detention, the Government observed that any individual who was placed in administrative detention by order of the prefect was entitled to challenge that decision before the administrative courts. During the detention, the liberties and detention judge reviewed its lawfulness after forty-eight hours and again after fifteen days. As regards the particular case of children who were not entitled to challenge a measure of detention that was not directed against them personally, the Government explained that parents could use such remedies on behalf of their minor children.",
"114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article 5 of the Convention.",
"(b) The Court’s assessment",
"115. The Court observes that the period under consideration, during which the applicants were placed in an administrative detention centre, lasted from 28 August to 12 September 2007.",
"(i) Article 5 § 1 (f) of the Convention",
"116. The Court reiterates that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. Deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress (see Chahal v. the United Kingdom, 15 November 1996, §§ 112-113, Reports of Judgments and Decisions 1996 ‑ V).",
"117. Whilst the general rule set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 § 1 (f) provides an exception to that general rule, permitting States to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Chahal, cited above, § 73, and Saadi, cited above, § 64).",
"118. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III). The Court has already stated, in two cases concerning similar facts, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and Others, cited above, § 73); lastly, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and Rahimi, cited above, § 106).",
"119. In the present case, the members of the family were held in administrative detention on account of the illegality of their presence in France, on premises that were not adapted to the children’s extreme vulnerability (see paragraphs 66 et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available. The Court thus finds that the French system did not sufficiently protect their right to liberty.",
"120. As regards the parents, however, the Court observes that Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary (see Chahal, cited above, § 112).",
"121. Consequently, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the children.",
"(ii) Article 5 § 4 of the Convention",
"122. The Court reiterates that the notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person according to Article 5 § 1 (see Chahal, cited above, § 127; S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited above, § 113).",
"123. The Court observes that the applicant parents were able to challenge their detention before the domestic courts: they applied to the administrative court for the annulment of the decision imposing on them an obligation to leave the country and then, during the period of administrative detention, the liberties and detention judge and the Court of Appeal ruled on the lawfulness of the detention. In this connection, the Court notes that on 12 September 2007 the liberties and detention judge decided that the failure to enforce the applicants’ removal could not be attributed to them and annulled the detention. The Court cannot but infer from this that the parents had the possibility of using a remedy by which to obtain a decision on the lawfulness of their detention. There has not therefore been a violation of Article 5 § 4 in respect of the parents.",
"124. However, the Court notes that the law does not provide for the possibility of placing minors in administrative detention. As a result, children “accompanying” their parents find themselves in a legal vacuum, preventing them from using any remedies available to their parents. In the present case, there had been no order of the prefect for their removal that they could have challenged before the courts. Similarly, there had been no decision ordering their placement in administrative detention and the liberties and detention judge was therefore unable to review the lawfulness of their presence in the administrative detention centre. The Court thus finds that they were not guaranteed the protection required by the Convention.",
"125. Accordingly, there has been a violation of Article 5 § 4 of the Convention in respect of the children.",
"IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"126. The applicants complained, firstly, that the order for their removal to Kazakhstan had constituted a disproportionate interference with their right to a private and family life. They argued, secondly, that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. They relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"...",
"B. The second head of the complaint",
"...",
"2. Merits",
"(a) The parties’ submissions",
"130. The applicants argued that no aim could justify their placement in detention and that the measure had been disproportionate. They pointed out that they had provided sufficient guarantees that they would not abscond and could have been ordered to reside at a specific address; and whilst there was no question of separating parents from their children in the case of placement in detention, a compulsory residence order would nevertheless, in the present case, have been better suited to their situation.",
"131. The Government observed that the applicants had enjoyed material conditions of reception adapted to families and had been accommodated on premises that catered specially for that purpose. They further noted that the present case did not raise any issue of family reunification.",
"(b) The Court’s assessment",
"132. The Court finds that there is no doubt as to the existence of “family life”, within the meaning of the Marckx v. Belgium case-law (13 June 1979, Series A no. 31), in the present case, and this has not in fact been disputed by the Government. Article 8 is thus applicable to the situation complained of by the applicants.",
"133. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities and this creates positive obligations inherent in effective “respect” for family life (see Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII). States are under an obligation to “act in a manner calculated to allow those concerned to lead a normal family life” (see Marckx, cited above, § 31).",
"134. The Court is of the opinion that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130), it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained. It finds that the fact of confining the applicants to a detention centre, for fifteen days, thereby subjecting them to custodial living conditions typical of that kind of institution, can be regarded as an interference with the effective exercise of their family life.",
"135. Such an interference entails a violation of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article, that is, if it is “in accordance with the law”, pursues one or more of the aims enumerated in that provision, and is “necessary in a democratic society” for the fulfilment of the said aim or aims.",
"136. The Court observes that the legal basis for the detention of the parents was Article L. 554 ‑ 1 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"137. As regards the aim pursued by the measure in question, the Court observes that it was taken in the context of the prevention of illegal immigration and the control of the entry and residence of aliens. The decision could have been in the interests of national security or the economic well-being of the country or, just as equally, intended to prevent disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention.",
"138. The Court must further determine whether the family’s placement in detention, for a duration such as that in the present case, was necessary within the meaning of Article 8 § 2 of the Convention, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 80).",
"139. The Court would observe in this connection that the authorities have a duty to strike a fair balance between the competing interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). It emphasises that this balance should be guaranteed taking account of international conventions, in particular the Convention on the Rights of the Child (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 120, 28 June 2007). The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled.",
"140. A measure of confinement must therefore be proportionate to the aim pursued by the authorities, namely the enforcement of a removal decision in the present case. It can be seen from the Court’s case-law that, where families are concerned, the authorities must, in assessing proportionality, take account of the child’s best interests. In this connection the Court would point out that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Rahimi, cited above, § 108, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).",
"141. Under the international Convention on the Rights of the Child (Article 3) the best interests of the child must be a primary consideration in all actions concerning children. Similarly, the “reception” directive (see paragraph 42 above), as transposed in the CESEDA legislation, provides expressly that member States must ensure that the child’s best interest is a primary consideration. It can also be seen from international reports (see above, under relevant international law) that the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort ...",
"142. The Court notes that the French practice of keeping families pending their deportation in detention centres has been criticised and that France is one of only three European countries which systematically have recourse to the detention of accompanied immigrant minors (see the report of the LIBE Committee, paragraph 44 above).",
"143. The Court further observes that since 1999 the UNHCR has invited States to study all alternatives to detention in the case of children accompanying their parents and to have recourse to detention only where there is no other means of keeping the family together ...",
"144. The Court notes, lastly, that the CNDS (National Commission for Ethics and Security) and the Défenseur des enfants (Children’s Defender) have, on various occasions, criticised the detention of children who have not committed any criminal offence, whether or not they are accompanied, calling for their best interests to be upheld. In their view, when the parents of minors are awaiting removal, a compulsory residence measure, or failing that, rented hotel accommodation, should be considered as a priority ...",
"145. In the present case, the applicants did not present any risk of absconding that required their detention. Their confinement in a secure centre did not therefore appear justified by a pressing social need, especially as their compulsory residence in a hotel during the first phase of their administrative detention does not seem to have caused any problems.",
"146. The Court finds that there is no indication in the material transmitted by the Government that any alternative to detention was envisaged, whether a compulsory residence measure or, as decided by the Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19 above). Neither does it appear that the authorities ever re-examined the possibility of confinement outside a detention centre during the period in question.",
"Lastly, it does not appear from the facts of the case that the authorities took all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. The applicants were held for fifteen days without any flight being arranged for them.",
"147. The Court is aware that a similar complaint was previously declared inadmissible, concerning the detention of four children with their mother for a period of one month, with no alternative to detention having been envisaged (see Muskhadzhivyeva and Others, cited above). However, in view of the foregoing and the recent developments in the case-law concerning the “child’s best interests” in the context of the detention of immigrant minors (see Rahimi, cited above), the Court cannot agree with the arguments of the Government claiming that the children’s best interests were upheld in the present case. The Court is of the view that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. In the absence of any indication to suggest that the family was going to abscond, the measure of detention for fifteen days in a secure centre appears disproportionate to the aim pursued.",
"148. Accordingly, the Court finds that the applicants sustained a disproportionate interference with their right to respect for their family life and that there has been a violation of Article 8 of the Convention.",
"..."
] |
4 | Popov v. France | 19 January 2012 | This case concerned the administrative detention of a couple of asylum-seekers and their two children for two weeks pending their removal. The applicants argued in particular that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. | The Court held that there had been a violation of article 8 (right to respect for private and family life) of the Convention in respect of the children and their parents. It firstly observed that the interference with the applicants’ family life because of their two-week detention at the centre had been in accordance with the French Code governing the entry and residence of foreigners and the right of asylum, and pursued the legitimate aim of combating illegal immigration and preventing crime. Then, referring to the broad consensus, particularly in international law, that the children’s interests were paramount in all decisions concerning them, the Court noted that France was one of the only three European countries that systematically had accompanied minors placed in detention. In the present case, as there had been no particular risk of the applicants absconding, their detention had not been justified by any pressing social need, especially considering that their placement in a hotel in August 2007 had posed no problem. Yet the French authorities did not appear to have sought any solution other than detention, or to have done everything in their power to have the removal order enforced as promptly as possible. Lastly, after recalling that, in the case of Muskhadzhiyeva and Others v. Belgium (see above, under “Conditions of detention” and “Right to liberty and security”), it had rejected a complaint similar to the applicants’, the Court considered, however, considering the above factors and the recent case-law developments concerning “the child’s best interests” in the context of the detention of child migrants5, that the child’s best interests called not only for families to be kept together but also for the detention of families with young children to be limited. In the applicants’ circumstances, the Court found that two weeks’ detention in a closed facility was disproportionate to the aim pursued. | Accompanied migrant minors in detention | Right to respect for family life | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants are Mr Vladimir Popov and Mrs Yekaterina Popov née Yakovenko, nationals of Kazakhstan, born in 1983 and 1982 respectively, and their two minor children, who were born in France on 7 April 2004 and 17 March 2007.",
"A. Applicants’ arrival in France",
"6. The applicants were born in Kazakhstan. They were married on 18 June 2002. In the applicants’ submission they were repeatedly persecuted in their country on account of their Russian origin and their affiliation to the Russian Orthodox Church. On 9 May 2002 the applicant’s father was beaten up in the street and required treatment in hospital. The family filed a complaint and on 5 June 2002 the applicants received, at their house, a visit from unknown individuals of Kazakh origin who asked them to withdraw their complaint and threatened them with reprisals. On 15 July 2002 an incendiary device was thrown into their home through the window, starting a fire, and they were rescued by a neighbour. Following that incident, the applicant’s father left Kazakhstan on 16 August 2002.",
"7. On 29 September 2002, when the second applicant was returning home, Kazakh police officers stopped her in the street and questioned her about her father. They took her away and she was beaten up. They tried to shut her in a vehicle and threatened to rape and kill her. She managed to escape. The next day, she went to the casualty department in the town of Taraz to have her injuries recorded and treated. On 2 October 2002 her mother came home having also been beaten up by Kazakh policemen who were looking for her husband. After that incident they moved to the country.",
"8. On 28 November 2002 the second applicant was again assaulted. She had gone shopping and did not return until the next day, covered in bruises and blood. Several days later she lost the child she was carrying. She then decided to leave the country and entered France on 15 December 2002 on a two-week visa. After her departure, the applicant, who had filed a complaint, was assaulted by policemen on 10 March 2003. He spent several months in hiding but the authorities found him, confiscated his papers, and threatened to kill him if he did not withdraw his complaint. He too decided to leave the country and joined his wife in France on 19 June 2003.",
"B. Asylum applications",
"9. The applicants each filed an asylum application with the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and obtained residence permits. Their asylum applications were rejected on 20 January 2004 on the ground that their statements were “riddled with inconsistencies”, followed “a stereotyped pattern” and were “unconvincing”. On 31 May 2005 the Refugee Appeals Board dismissed their appeals.",
"10. On 12 January 2006, having learnt of the murder of the second applicant’s father, after his return to Kazakhstan, the applicants requested a fresh examination of their case by the OFPRA. On 19 January 2006 the OFPRA refused to re-examine the case. On 13 September 2006 the Appeals Board rejected their appeal on the ground that the new fact could not be regarded as established.",
"11. They subsequently applied for recognition as stateless persons, but the OFPRA rejected their request on 5 April 2007, on the ground, first, that they had not provided evidence that the Kazakh authorities had withdrawn their nationality and they could not lose that nationality purely of their own volition, and, secondly, that they held passports issued by their national authorities that were valid until 2012. On 25 April 2007 the applicants appealed against that rejection before the Nantes Administrative Court. They subsequently dropped their appeal, however, having obtained refugee status in the meantime (see paragraph 27 below).",
"C. Refusal to grant residence permits together with an obligation to leave France and measures of administrative detention",
"1. First detention measure",
"12. On 21 June 2005 the Ardennes prefecture notified the applicants of its refusal to issue them with residence permits and directed them to leave the country within one month.",
"13. On 22 November 2005 Mr Popov was arrested during a vehicle check when he was found to be in the country illegally. On the next day he was issued with a removal order and placed in administrative detention in Charleville-Mézières. On 25 November 2005 the liberties and detention judge of the Charleville-Mézières tribunal de grande instance ordered the extension of his detention for fifteen days. On 9 December 2005 the detention was extended for a further fifteen days in order to “enable the enforcement of the removal measure”.",
"14. On 28 November 2005 the Châlons-en-Champagne Administrative Court rejected Mr Popov’s application for the annulment of the order for his removal to Kazakhstan. On 23 November 2006 the Nancy Administrative Court of Appeal upheld that judgment, finding that he had not adduced any conclusive evidence in support of his allegations that he had been persecuted in his country of origin.",
"15. The removal order against the first applicant was not enforced, however, and he was released from the detention centre, as no laissez-passer had been issued.",
"2. Second detention measure",
"16. On 11 October 2006 it was decided to place the applicants in administrative detention but the prefect of the Ardennes ordered them to reside at a specific address, pursuant to Article L. 513-4 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). Two attempts to remove the applicants failed as a result of the mobilisation of a support group. The family was thus released.",
"17. On 29 January 2007 the Ardennes prefecture rejected a new request for the issuance of a residence permit to the applicants. On the same day, a further decision was delivered imposing on them an obligation to leave the country. On 31 May 2007 the Châlons-en-Champagne Administrative Court dismissed their appeal against that decision.",
"18. On 25 June 2008 they again applied for residence permits. As the prefecture failed to respond, the applicants challenged the implicit rejection decision before the Nantes Administrative Court. However, having subsequently obtained refugee status, the applicants withdrew their complaint.",
"3. Disputed measures of administrative detention",
"(a) First attempt to remove the applicants",
"19. On 27 August 2007 the applicants and their children, who were then under six months and three years, respectively, were apprehended at the home of the applicant’s mother, who was accommodating them, and taken into police custody. After a long wait, the Maine-et-Loire prefecture ordered their administrative detention in a hotel in Angers. On 28 August 2007 the applicants and their children were transferred to Charles-de-Gaulle airport pending their removal to Kazakhstan. However, the flight scheduled for the early afternoon was cancelled, without the prefecture having been informed, and the removal could not therefore be carried out. It was only in the evening that the applicants and their children were transferred, in a police van, to the administrative detention centre of Rouen ‑ Oissel.",
"20. That centre, even though it is mentioned on the list of centres that cater for families, does not have any real leisure or learning area. Whilst one wing is reserved for families and single women, the atmosphere there is distressing and stressful, with a lack of privacy and a high level of tension. Announcements via loud-speakers reverberate throughout the centre and exacerbate the feeling of stress. The Oissel centre, at the time of the applicants’ detention, was not equipped with the basic facilities for the detention of young children (it had metal beds with pointed corners, no cots, just a few toys in the corner of a room, etc.). The only outdoor area is a courtyard, concreted over and with wire netting over the top, and the bedroom windows are covered with a tight grill obscuring the view to the outside ...",
"The eldest child refused to eat in the centre and showed signs of anxiety and stress. The parents had to negotiate with the police to recover their personal belongings, including the milk they had brought for the infant. They were only able to receive one short visit during their detention, as it was not easy to gain access to the centre.",
"21. On 29 August 2007 the liberties and detention judge of the Rouen tribunal de grande instance ordered the extension of the detention measure for fifteen days, after observing that the maintaining of a family in detention was not in breach of the decree of 30 May 2005 on administrative detention and holding areas and that their transfer to Rouen ‑ Oissel was not vitiated by any defect. The decision also mentioned the loss of the second applicant’s Kazakh nationality but it was found that this could not justify release, as the Administrative Court alone had jurisdiction to decide if that situation would have any consequences. On 30 August 2007 the Rouen Court of Appeal upheld the extension decision.",
"(b) Second attempt to remove applicants",
"22. Having been held in the detention centre since 28 August 2007, the applicants were again transferred to Roissy Charles-de-Gaulle airport pending their removal on 11 September 2007, the flight being scheduled for the early afternoon. It did not go ahead, however. The applicants were not taken back to the Rouen-Oissel centre until the evening, without any measure of placement in a detention facility being decided at Roissy during that period. The prefect then applied to the Rouen liberties and detention judge to have the applicants’ detention extended for a further fifteen days, relying solely on the argument that the non-enforcement of the removal order could be attributed to the applicants themselves (CESEDA, Article L. 552-7). The applicants complained about the conditions of their detention and its length, arguing that the authorities had failed to prove that the length of the measure was strictly necessary.",
"23. On the same day the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the removal measure. The Court declined to indicate an interim measure in response to that request.",
"24. On 12 September 2007 the liberties and detention judge found that there was no evidence to show that the applicants had deliberately impeded their removal, because the documents concerning the circumstances of the attempt expressly stated that “no refusal to board the plane was recorded on 11 September 2007”, and he ordered their release, with the obligation to leave France being maintained. The prefect appealed against that decision but without seeking suspensive effect. The applicants were thus released from the detention centre.",
"25. On 14 September 2007 the Rouen Court of Appeal set aside the liberties and detention judge’s decision and extended the administrative detention measure for fifteen days, finding that it could be seen from certain documents in the file that the applicants had indeed prevented their removal (an e-mail from one of the border police officers mentioning the need for an escort to carry out the removal the next time, in view of Mrs Popov’s reaction). It had been found that the next flight with an escort for the applicants’ removal would not be available before 18 September 2007, and the prefect had not therefore shown a lack of diligence in organising the departure and limiting the length of the detention. He had thus been justified in seeking an extension of the administrative detention pending the organisation of a fresh removal. That decision was not enforced.",
"D. Obtaining of refugee status",
"26. Before their arrest the applicants had filed a fresh request to be granted refugee status. In a decision of 6 September 2007 the OFPRA rejected the request on account of the very general nature of the alleged facts, finding that this, together with the unlikely claim of blackmail on the part of the Kazakh authorities, precluded the establishment of their veracity. The OFPRA further stated that as the allegation that the applicants had lost their nationality had not been corroborated, the request for re-examination had to be rejected. The applicants appealed against that decision.",
"27. On 16 July 2009 the National Asylum Tribunal granted the applicants refugee status, finding that the enquiries made by the Ardennes prefecture vis-à-vis the Kazakh authorities, in breach of the confidentiality of asylum applications, had exposed the applicants to danger in the event of their return to Kazakhstan, and that their loss of Kazakh nationality, in August 2007 and April 2008 respectively, whilst not per se constituting persecution, did not, however, preclude the granting of refugee status.",
"IV. ALTERNATIVES TO DETENTION",
"64. According to the non-governmental organisation “International Detention Coalition”, the alternative of compulsory residence orders is used in France in only 5% of cases (see the report: “Survey on Alternatives to Detention of Asylum Seekers in EU Member States”). Many organisations, both governmental and non-governmental, advocate alternatives to detention.",
"..."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"...",
"B. Conditions of detention",
"...",
"31. The practice of detaining children accompanying their parents is governed by decree no. 2005 ‑ 617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows:",
"Article R. 553-3",
"“Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards:",
"1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours;",
"2. Non-mixed shared rooms, housing a maximum of six;",
"3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees;",
"4. A telephone freely accessible for every fifty detainees;",
"5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts;",
"6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees;",
"7. One or more rooms containing medical equipment, reserved for medical personnel;",
"8. A room for visits by family members and consular staff;",
"9. The room mentioned in Article R. 553-7, reserved for lawyers;",
"10. A room assigned to the organisation mentioned in Article R. 553-13;",
"11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14;",
"12. An area for open-air exercise;",
"13. A luggage room.",
"Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.”",
"Article L. 552-4",
"“By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.”",
"32. The Court notes that French law precludes the placement of minors in administrative detention:",
"Article L. 511-4",
"“An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of:",
"1 o An alien who is under eighteen years of age; ...”",
"Article L. 521-4",
"“Deportation cannot be ordered in respect of an alien under eighteen years of age.”",
"33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“ Centres et locaux de rétention administrative ”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis.",
"34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education.",
"...",
"D. Case-law",
"42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal.",
"1. Case-law of the ordinary courts",
"43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning:",
"“even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...”",
"44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”.",
"In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. It found that the reasons given by the Court of Appeal did not suffice for inhuman or degrading treatment to be established in the particular circumstances of the case.",
"45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds:",
"“the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...”",
"That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows:",
"“inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.”",
"2. Administrative case-law",
"46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child.",
"...",
"III. RELEVANT INTERNATIONAL LAW",
"...",
"B. Council of Europe",
"...",
"3. Commissioner for Human Rights",
"56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257).",
"The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity ( sic ) and very strong tensions” (§ 257).",
"57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma.",
"4. European Committee for the Prevention of Torture (CPT)",
"58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional.",
"In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”.",
"C. European Union",
"1. European Union legislation",
"59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 0098 ‑ 0107).",
"The relevant provision reads as follows:",
"“(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...”",
"60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention:",
"Chapter IV",
"Provisions for persons with special needs",
"Article 17",
"“General principle",
"1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...”",
"Article 18",
"“Minors",
"1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...”",
"61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows:",
"Article 24: The rights of the child",
"“... 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. ...”",
"2. Report commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE)",
"62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive.",
"The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children.",
"The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention.",
"63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”.",
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"70. The applicants complained of a violation of Article 3 of the Convention. ... Secondly, they alleged that their placement in administrative detention, from 27 August to 12 September 2007, in view of the conditions and duration of the detention, had been incompatible with the provisions of Article 3 of the Convention. That provision reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"71. The Court begins by finding that the two applications should be joined.",
"...",
"B. The second aspect of the complaint alleging a violation of Article 3, on account of the conditions of administrative detention",
"...",
"2. Merits",
"(a) The parties’ arguments",
"76. The applicants observed that foreign minors were accorded particular protection under the specific texts applicable to them, in particular the New York Convention on the Rights of the Child of 26 January 1990.",
"77. The applicants added that the Rouen-Oissel detention centre was overcrowded and dilapidated, with a lack of privacy and a high level of tension, especially for children, who could not comprehend the reasons for the detention. They explained that the centre reverberated with noise, as announcements were constantly being made via loud-speakers, thus exacerbating the feeling of stress and confinement. Despite the possibility of using some childcare facilities, a detention centre remained totally unsuitable for very small children. They added that in the accommodation block the bedroom windows were covered with a tight grill that completely obscured the view of the courtyard outside.",
"78. On their arrival, the applicants’ personal belongings had been taken by the police officers, including the baby’s milk. The bottle was returned to them only after they had negotiated with the officers.",
"79. The applicants had only been able to receive one visit from a family member, for ten minutes and without the children being present. The eldest daughter had refused to eat while in the centre and showed signs of anxiety and stress. The second applicant’s requests concerning her daughter’s dietary preferences had been denied and no exemption had been authorised in order to adapt the proposed meals to the child’s needs. On several occasions the police officers had threatened the child with “placement by a judge” and the second applicant had been told that she was a “bad mother”.",
"80. The applicants added that, as they had no spare clothing, they had been obliged to put on damp clothes after washing them.",
"81. They further argued that, in addition to the unsuitability of the conditions on the premises, the duration of their detention had been totally incompatible with their children’s best interests and their eldest daughter had found it particularly traumatic, resulting in eating disorders and considerable anxiety and stress during and after her stay in the centre.",
"82. The Government observed that the administrative detention of illegal immigrants awaiting removal did not suffice in itself to establish the existence of inhuman and degrading treatment. They explained that in principle it was not prohibited to detain children accompanied by their parents. They recognised that it was necessary to preserve the child’s interest when families were detained and consequently, once the legitimacy of the parents’ detention had been established, there could be no question of separating them from their children.",
"83. In this connection they explained that the placement of minors in detention centres with their parents was not systematic and that other solutions existed. Moreover, the applicants had been placed in administrative detention in a hotel in Angers before being transferred to the airport. It was only because their flight had been cancelled that they had then been placed in the Rouen-Oissel centre.",
"84. The Government wished to distinguish the present case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI), where the applicant had been an unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010), where the Court had taken the view that the two eldest siblings were more vulnerable to the environment of the detention centre. Whilst in Muskhadzhiyeva and Others the children were aged seven months, three and a half, five and seven, in the present case the children were three years’ old and six months’ old. Applying the Court’s case-law, the Government argued that the age of the applicant children was such that they would have a limited perception of their environment. The Government noted that in Muskhadzhiyeva and Others the children’s psychological problems had been certified by doctors, one of them being diagnosed with “post-traumatic stress and showing an excess of anxiety far greater than that of children of her age”. They pointed out that it had been the combination of the children’s age and health, the length of the detention and the ill-adapted accommodation facilities that had led the Court to find the violation of Article 3 in that case.",
"85. The Government indicated that the authorities had deployed significant resources to improve the reception of families in detention. Rouen-Oissel was one of eleven centres that specifically catered for parents accompanied by their minor children. The Government explained that part of the centre was reserved for families, with family bedrooms containing facilities for children (childcare material and games). They did not dispute the fact that the windows were covered but pointed out that free access to the entire accommodation area, including indoor and outdoor yards, was possible between 7.30 a.m. and 10.30 p.m.",
"86. The Government observed that visits were in principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that these times could be extended for visitors travelling from afar. They were surprised by the applicants’ allegation that they had not enjoyed the right to receive visits.",
"87. The Government were also surprised by the allegation that police officers had proffered threats against the eldest child and noted that the accusations remained unsubstantiated. They further called into question the disorders from which the eldest child had allegedly suffered (refusal to eat, stress, anxiety) and wondered why the parents had not consulted the doctor on duty in the centre or used the infirmary. Moreover, they cast doubt on the alleged denial of the request for an exemption to adapt meals to the child’s needs. Article 13 of the internal rules provided for special menus, especially for reasons of age or health, thus applicable to very small children. In addition, the Government pointed out that families did not take their meals with the other individuals in the centre.",
"88. As regards the length of the detention, the Government observed that it was strictly governed by law and that the lawfulness of any placement in detention was reviewed by a judge. In addition, the length of the detention in the present case had been relatively short compared to that observed in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and Others, cited above.",
"(b) The Court’s assessment",
"(i) General principles",
"89. Concerning the general principles that are applicable in the area of administrative detention, the Court would refer to paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment, cited above.",
"90. As regards minors, more specifically, the Court observes that the international Convention on the Rights of the Child provides in Article 37 that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in custodial facilities pending their removal. In the case of Rahimi v. Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an unaccompanied minor in such a facility, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention, as degrading treatment in breach of Article 3 of the Convention.",
"The Court also found a violation of Article 3 in the Muskhadzhiyeva and Others judgment (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal.",
"(ii) Application to the present case",
"(α) In respect of the children",
"91. The Court observes that in the present case, as in Muskhadzhiyeva and Others, the applicant children were accompanied by their parents throughout the period of detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part of their positive obligations under Article 3 of the Convention (ibid., § 58) and that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). The European Union directive concerning the reception of aliens thus treats minors, whether or not they are accompanied, as a category of vulnerable persons particularly requiring the authorities’ attention (see paragraph 42 above). To be sure, children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court would, moreover, observe that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others, § 62).",
"92. The Court notes that during the period of detention in question, the applicant children were aged five months and three years, respectively. They were held for fifteen days at the Rouen-Oissel detention centre.",
"93. As regards the conditions of detention, the Court found that the Rouen-Oissel detention centre was among those “authorised” to receive families by the decree of 30 May 2005 (see paragraph 32 above). However, the Court observes that this text merely mentions the need to provide “bedrooms that are specially adapted, in particular for childcare” but does not expressly list the facilities required for the accommodation of families. Thus there are major discrepancies between the various centres in terms of the facilities provided, each centre’s director being responsible for such matters and free to take decisions, without having the support of staff specifically trained in education (see paragraph 32 above).",
"94. The applicants described the Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The detainees lived in constant fear of being deported, thus exacerbating tension that was already acute ...",
"95. It can be seen from the reports of visits to the Rouen-Oissel centre ... that whilst the authorities had been careful to separate families from other detainees, the facilities available in the “families” area of the centre were nevertheless ill-adapted to the presence of children: no children’s beds and adult beds with pointed metal corners, no activities for children, a very basic play area on a small piece of carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire netting, a tight grill over the bedroom windows obscuring the view outside, and automatically closing bedroom doors with consequent danger for children.",
"96. The Commissioner for Human Rights and the CPT also raised the question of administrative detention centres being unsuited to the accommodation of families and to the needs of children, taking the view that, in addition to the ill-adapted material conditions, the lack of privacy, stress, insecurity and hostile environment in such centres also had harmful consequences for minors, at odds with the international principles on the protection of children. In response to this criticism, the French authorities acknowledged, in 2006, that the furnishings in family rooms were not always adapted to infants (see paragraphs 38 to 40 above).",
"97. The Court notes that such findings have also been made by certain appellate courts, which in various rulings have observed that confinement in conditions such as those in the present case caused “great emotional and mental suffering” to minors, and that the “abnormal living conditions” imposed on very small children “exceeded the threshold of seriousness for the purposes of Article 3 of the Convention” (see paragraphs 34 to 36 above).",
"Having regard to the foregoing, the Court is of the opinion that the conditions in which the applicant children were held were not adapted to their age.",
"98. The Court reiterates that the detention of an alien must be carried out in good faith and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).",
"The Court observes that the various international texts recommend that the authorities should be required to implement all necessary means to limit, as far as possible, the duration of the detention of minors ...",
"99. Domestic law stipulates that the length of detention for aliens pending removal should be limited to the time strictly necessary to organise their departure ...",
"100. In the present case, the Court finds that the length of detention of the children, over a period of fifteen days, whilst not excessive per se, could be perceived by them as never-ending, bearing in mind that the facilities were ill-adapted to their accommodation and age.",
"101. In addition, the applicants maintained that detention in this ill-adapted centre had subjected the children, especially the eldest, to a situation of stress that had entailed mental distress.",
"The Court would observe, like the Government, that these allegations by the applicants have not been corroborated by any evidence. However, in view of its findings as to the unsuitability of the premises for the detention of children, the Court does not doubt that this situation created anxiety, psychological disturbance and degradation of the parental image in the eyes of the children.",
"102. It can be seen from the foregoing that the conditions in which the children were held, for fifteen days, in an adult environment, faced with a strong police presence, without any activities to keep them occupied, added to the parents’ distress, were manifestly ill-adapted to their age. The two children, a small girl of three and a baby, found themselves in a situation of particular vulnerability, accentuated by the confinement. Those living conditions inevitably created for them a situation of stress and anxiety, with particularly traumatic consequences.",
"103. Accordingly, in view of the children’s young age, the length of their detention and the conditions of their confinement in a detention centre, the Court is of the view that the authorities failed to take into account the inevitably harmful consequences for the children. It finds that the authorities’ treatment of the children was not compatible with the provisions of the Convention and exceeded the threshold of seriousness for Article 3 of the Convention to be engaged. There has therefore been a violation of that Article in respect of the children.",
"(β) In respect of the parents",
"104. The Court would reiterate that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 61, and Muskhadzhiyeva and Others, cited above, § 64).",
"105. As in the case of Muskhadzhiyeva and Others, the Court finds that, whilst the administrative detention of the applicants with their children in a centre could have created a feeling of powerlessness, together with anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings, such that the threshold required for a violation of Article 3 has not been reached. Accordingly, there has been no violation of Article 3 of the Convention in respect of the parents.",
"III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND 5 § 4 OF THE CONVENTION",
"106. The applicants argued that their administrative detention from 27 August to 12 September 2007 had taken place in conditions and for a duration that entailed a breach of Article 5 § 1 (f). The present case also raises an issue under Article 5 § 4. Those provisions read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"...",
"2. Merits",
"(a) The parties’ submissions",
"108. The applicants noted that a measure of removal or placement in detention could not, in principle, be taken against minors. As the measure concerned the parents and not the children themselves, the detention of children therefore had no legal basis or safeguards.",
"109. They added that the alternative of entrusting children to the care of a third party, as mentioned by the Government, was only a theoretical possibility as it would inevitably entail the separation of families for an indefinite duration. The applicants inferred that, for this reason, detention was not reasonably necessary.",
"110. The Government did not dispute the fact that the administrative detention of illegal immigrants constituted a restriction on their freedom of movement. They observed, however, that in the present case the detention had been imposed in a context of deportation, a situation that was provided for in Article 5 § 1 (f) of the Convention. The Government argued that administrative detention was prescribed by law and strictly supervised in domestic law. They were of the opinion that the French law on administrative detention had the “necessary qualities” and sufficient safeguards to preclude any risk of arbitrariness.",
"111. As regards the status of minors accompanying their parents, the Government pointed out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhivyeva and Others, cited above, the Court took the view that the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. They recognised, however, that in the present case, the minor applicants had not been placed in detention on a personal basis and that minors were usually protected against any removal measure. The Government explained that this restriction did not, however, prevent a minor from accompanying his or her parents in the detention centre when they were affected by a measure of removal.",
"112. The Government added that parents placed in detention could always opt for the alternative of entrusting their children to the care of third parties. They insisted that, in any event, the Rouen-Oissel centre was specifically adapted to the children’s situation of vulnerability on account of their status and that their detention was thus compliant with the provisions of the Convention.",
"113. As to whether the applicants had a remedy, in accordance with Article 5 § 4 of the Convention, through which they could challenge the lawfulness of their detention, the Government observed that any individual who was placed in administrative detention by order of the prefect was entitled to challenge that decision before the administrative courts. During the detention, the liberties and detention judge reviewed its lawfulness after forty-eight hours and again after fifteen days. As regards the particular case of children who were not entitled to challenge a measure of detention that was not directed against them personally, the Government explained that parents could use such remedies on behalf of their minor children.",
"114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article 5 of the Convention.",
"(b) The Court’s assessment",
"115. The Court observes that the period under consideration, during which the applicants were placed in an administrative detention centre, lasted from 28 August to 12 September 2007.",
"(i) Article 5 § 1 (f) of the Convention",
"116. The Court reiterates that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. Deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress (see Chahal v. the United Kingdom, 15 November 1996, §§ 112-113, Reports of Judgments and Decisions 1996 ‑ V).",
"117. Whilst the general rule set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 § 1 (f) provides an exception to that general rule, permitting States to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Chahal, cited above, § 73, and Saadi, cited above, § 64).",
"118. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III). The Court has already stated, in two cases concerning similar facts, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and Others, cited above, § 73); lastly, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and Rahimi, cited above, § 106).",
"119. In the present case, the members of the family were held in administrative detention on account of the illegality of their presence in France, on premises that were not adapted to the children’s extreme vulnerability (see paragraphs 66 et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available. The Court thus finds that the French system did not sufficiently protect their right to liberty.",
"120. As regards the parents, however, the Court observes that Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary (see Chahal, cited above, § 112).",
"121. Consequently, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the children.",
"(ii) Article 5 § 4 of the Convention",
"122. The Court reiterates that the notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person according to Article 5 § 1 (see Chahal, cited above, § 127; S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited above, § 113).",
"123. The Court observes that the applicant parents were able to challenge their detention before the domestic courts: they applied to the administrative court for the annulment of the decision imposing on them an obligation to leave the country and then, during the period of administrative detention, the liberties and detention judge and the Court of Appeal ruled on the lawfulness of the detention. In this connection, the Court notes that on 12 September 2007 the liberties and detention judge decided that the failure to enforce the applicants’ removal could not be attributed to them and annulled the detention. The Court cannot but infer from this that the parents had the possibility of using a remedy by which to obtain a decision on the lawfulness of their detention. There has not therefore been a violation of Article 5 § 4 in respect of the parents.",
"124. However, the Court notes that the law does not provide for the possibility of placing minors in administrative detention. As a result, children “accompanying” their parents find themselves in a legal vacuum, preventing them from using any remedies available to their parents. In the present case, there had been no order of the prefect for their removal that they could have challenged before the courts. Similarly, there had been no decision ordering their placement in administrative detention and the liberties and detention judge was therefore unable to review the lawfulness of their presence in the administrative detention centre. The Court thus finds that they were not guaranteed the protection required by the Convention.",
"125. Accordingly, there has been a violation of Article 5 § 4 of the Convention in respect of the children.",
"IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"126. The applicants complained, firstly, that the order for their removal to Kazakhstan had constituted a disproportionate interference with their right to a private and family life. They argued, secondly, that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. They relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"...",
"B. The second head of the complaint",
"...",
"2. Merits",
"(a) The parties’ submissions",
"130. The applicants argued that no aim could justify their placement in detention and that the measure had been disproportionate. They pointed out that they had provided sufficient guarantees that they would not abscond and could have been ordered to reside at a specific address; and whilst there was no question of separating parents from their children in the case of placement in detention, a compulsory residence order would nevertheless, in the present case, have been better suited to their situation.",
"131. The Government observed that the applicants had enjoyed material conditions of reception adapted to families and had been accommodated on premises that catered specially for that purpose. They further noted that the present case did not raise any issue of family reunification.",
"(b) The Court’s assessment",
"132. The Court finds that there is no doubt as to the existence of “family life”, within the meaning of the Marckx v. Belgium case-law (13 June 1979, Series A no. 31), in the present case, and this has not in fact been disputed by the Government. Article 8 is thus applicable to the situation complained of by the applicants.",
"133. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities and this creates positive obligations inherent in effective “respect” for family life (see Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII). States are under an obligation to “act in a manner calculated to allow those concerned to lead a normal family life” (see Marckx, cited above, § 31).",
"134. The Court is of the opinion that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130), it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained. It finds that the fact of confining the applicants to a detention centre, for fifteen days, thereby subjecting them to custodial living conditions typical of that kind of institution, can be regarded as an interference with the effective exercise of their family life.",
"135. Such an interference entails a violation of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article, that is, if it is “in accordance with the law”, pursues one or more of the aims enumerated in that provision, and is “necessary in a democratic society” for the fulfilment of the said aim or aims.",
"136. The Court observes that the legal basis for the detention of the parents was Article L. 554 ‑ 1 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA).",
"137. As regards the aim pursued by the measure in question, the Court observes that it was taken in the context of the prevention of illegal immigration and the control of the entry and residence of aliens. The decision could have been in the interests of national security or the economic well-being of the country or, just as equally, intended to prevent disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention.",
"138. The Court must further determine whether the family’s placement in detention, for a duration such as that in the present case, was necessary within the meaning of Article 8 § 2 of the Convention, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 80).",
"139. The Court would observe in this connection that the authorities have a duty to strike a fair balance between the competing interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). It emphasises that this balance should be guaranteed taking account of international conventions, in particular the Convention on the Rights of the Child (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 120, 28 June 2007). The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled.",
"140. A measure of confinement must therefore be proportionate to the aim pursued by the authorities, namely the enforcement of a removal decision in the present case. It can be seen from the Court’s case-law that, where families are concerned, the authorities must, in assessing proportionality, take account of the child’s best interests. In this connection the Court would point out that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Rahimi, cited above, § 108, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).",
"141. Under the international Convention on the Rights of the Child (Article 3) the best interests of the child must be a primary consideration in all actions concerning children. Similarly, the “reception” directive (see paragraph 42 above), as transposed in the CESEDA legislation, provides expressly that member States must ensure that the child’s best interest is a primary consideration. It can also be seen from international reports (see above, under relevant international law) that the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort ...",
"142. The Court notes that the French practice of keeping families pending their deportation in detention centres has been criticised and that France is one of only three European countries which systematically have recourse to the detention of accompanied immigrant minors (see the report of the LIBE Committee, paragraph 44 above).",
"143. The Court further observes that since 1999 the UNHCR has invited States to study all alternatives to detention in the case of children accompanying their parents and to have recourse to detention only where there is no other means of keeping the family together ...",
"144. The Court notes, lastly, that the CNDS (National Commission for Ethics and Security) and the Défenseur des enfants (Children’s Defender) have, on various occasions, criticised the detention of children who have not committed any criminal offence, whether or not they are accompanied, calling for their best interests to be upheld. In their view, when the parents of minors are awaiting removal, a compulsory residence measure, or failing that, rented hotel accommodation, should be considered as a priority ...",
"145. In the present case, the applicants did not present any risk of absconding that required their detention. Their confinement in a secure centre did not therefore appear justified by a pressing social need, especially as their compulsory residence in a hotel during the first phase of their administrative detention does not seem to have caused any problems.",
"146. The Court finds that there is no indication in the material transmitted by the Government that any alternative to detention was envisaged, whether a compulsory residence measure or, as decided by the Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19 above). Neither does it appear that the authorities ever re-examined the possibility of confinement outside a detention centre during the period in question.",
"Lastly, it does not appear from the facts of the case that the authorities took all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. The applicants were held for fifteen days without any flight being arranged for them.",
"147. The Court is aware that a similar complaint was previously declared inadmissible, concerning the detention of four children with their mother for a period of one month, with no alternative to detention having been envisaged (see Muskhadzhivyeva and Others, cited above). However, in view of the foregoing and the recent developments in the case-law concerning the “child’s best interests” in the context of the detention of immigrant minors (see Rahimi, cited above), the Court cannot agree with the arguments of the Government claiming that the children’s best interests were upheld in the present case. The Court is of the view that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. In the absence of any indication to suggest that the family was going to abscond, the measure of detention for fifteen days in a secure centre appears disproportionate to the aim pursued.",
"148. Accordingly, the Court finds that the applicants sustained a disproportionate interference with their right to respect for their family life and that there has been a violation of Article 8 of the Convention.",
"..."
] |
5 | A.B. and Others v. France | 12 July 2016 | This case primarily concerned the administrative detention of an underage child for eighteen days in the context of a deportation procedure against his parents. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the applicant’s child, finding that, given the child’s age and the duration and conditions of his detention in the administrative detention centre, the authorities had subjected him to treatment which had exceeded the threshold of seriousness required by Article 3. The Court noted in particular that, where the parents were placed in administrative detention, the children were de facto deprived of liberty. It acknowledged that this deprivation of liberty, which resulted from the parents’ legitimate decision not to entrust them to another person, was not in principle contrary to domestic law. The Court held, however, that the presence in administrative detention of a child who was accompanying his or her parents was only compatible with the Convention if the domestic authorities established that they had taken this measure of last resort only after having verified, in the specific circumstances, that no other less restrictive measure could be applied. Lastly, the Court observed that the authorities had not taken all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spend in detention. In the absence of a particular risk of absconding, the administrative detention of eighteen days’ duration seemed disproportionate to the aim pursued. In this case the Court also held that there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 5 § 4 (right to speedy review of the lawfulness of detention) of the Convention in respect of the applicant’s child, as well as a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the child and his parents. | Migrants in detention | Detention conditions | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants were born in 1978, 1980 and 2007 respectively.",
"7. They fled Armenia on account of fears of persecution related to the first applicant ’ s activity as a journalist and his political activism.",
"8. After arriving in France on 4 October 2009 they filed applications for asylum, which were rejected by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides – OFPRA), on 21 December 2009, then by the National Asylum Court ( Cour nationale du droit d ’ asile – CNDA), on 28 February 2011. Their subsequent requests for re-examination were also rejected.",
"9. On 3 May 2011 the prefect of Loiret issued orders rejecting the applicants ’ requests for leave to remain and obliging them to leave French territory. On 18 October 2011 the Orleans Administrative Court, on an appeal from the applicants, refused to overturn those orders.",
"10. The first applicant was arrested by the police in connection with a theft on the evening of 16 February 2012 and was taken into police custody that same day. The second and third applicants were arrested the next day at the reception centre for asylum seekers (Centre d ’ accueil des demandeurs d ’ asile – CADA) at Chaingy, where the family had been living. The applicants were taken that same day to the administrative detention centre (Centre de rétention administrative – CRA) of Toulouse- Cornebarrieu. The detention orders in respect of the first two applicants read as follows :",
"“Whereas the immediate enforcement of the [ order to leave France ] is not possible on account of the organisation of [ their ] departure for [ their ] country of origin.",
"Whereas [ the applicants ] [ have ] not presented sufficient guarantees that [they] will not abscond, not having a valid passport, [having ] neither a fixed abode nor sufficient resources, not [having] complied with the previous removal directions issued to [them] and [having ] formally opposed, when interviewed, [their] return to [their] country of origin.”",
"11. The first two applicants challenged their detention orders and in parallel lodged an urgent application for a stay of execution. They claimed that they had a fixed addressed at the reception centre ( CADA ), that a friend was prepared to accommodate them and that, in any event, their detention would be incompatible with the best interests of their child. In this connection they indicated that their child, who was too young to be left on his own, was obliged to accompany them in all their administrative formalities and therefore to come into contact with armed police officers in uniform.",
"12. On 21 February 2012 the President of the Toulouse Administrative Court dismissed the urgent application without a hearing, finding as follows :",
"“Under the [domestic statutory] provisions, the legality of decisions ordering administrative detention in connection with removal measures can be challenged fully through a specific procedure, which itself has the nature of an urgent procedure, separately from the remit of the urgent applications judge ...; it follows therefrom that the applicants ’ request for that judge to order ... the stay of execution of the detention orders made for the purpose of enforcing the removal directions, a stay which would in fact have an equivalent effect to that of the annulment of the same decision on the merits, is inadmissible.”",
"13. On the same day, the Toulouse Administrative Court dismissed the application lodged by the first two applicants for the annulment of the administrative detention order, on the following grounds :",
"“It is not in dispute that [the applicants ] cannot present any valid identity or travel document; although [they claim] that [they] have a fixed address in an asylum-seekers ’ reception centre, it can be seen from the evidence in the file that this centre asked [ them ] to vacate the premises, where [ they have ] unduly remained since June 2011; nor [have] the [applicants] adduced evidence of lawful income; lastly, since the notification of the judgment of the Orléans Administrative Court of 18 October 2011 dismissing [their] application against the order of the prefect of Loiret of 2 May 2011, [ the applicants ] [have] avoided the said removal measure; under those circumstances, the choice of the administrative authority to place [them] in administrative detention instead of ordering a measure of restricted residence ... is not vitiated by a manifest error of judgment.”",
"Responding more specifically to the argument raised by the applicants concerning the child ’ s best interests, the Administrative Court found it to be inapplicable, as the decisions appealed against pertained only to the parents ’ personal situation.",
"14. The prefect asked the Liberties and Detention Judge of the Toulouse tribunal de grande instance to extend the detention, after which the first two applicants tried to obtain the third applicant ’ s voluntary intervention in the proceedings. On 22 February 2012 that judge authorised the extension of the applicants ’ detention for a period of twenty days, after finding inadmissible the request for voluntary intervention on behalf of the child, and having dismissed the argument that the conditions of detention were incompatible with the presence of a minor child, on the following grounds:",
"“It is not for the judicial authority to interfere in the running of an administrative detention centre”.",
"15. That decision was upheld on 24 February 2012 by the President of the Toulouse Court of Appeal, who found in particular as follows :",
"“... the administrative detention centre of Cornebarrieu, where the child is held, has been authorised to receive families and contains all the necessary facilities to ensure the comfort of a family with children.",
"Thus the whole family is together and they have, in an autonomous area and separated from the rest of the detainees, rooms for them alone and for their exclusive use.",
"In addition, there is a playground on the site, like those to be found in town squares.",
"Lastly, a doctor and a nurse are available every day in the Toulouse administrative detention centre and Mr and Mrs A.B. have not shown that they met with a refusal when they asked to present their child – a request of which the existence has not been established.",
"The Convention provisions, especially Article 8, do not therefore appear to have been breached.”",
"16. On 24 February 2012 the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the detention orders concerning them. On 29 February 2012 the Court decided not to indicate the requested interim measure.",
"17. On 5 March 2012 the applicants were released, after expressing their wish to return to Armenia, and after seeking voluntary return assistance for that purpose. However, they did not leave France, on account of the third applicant ’ s state of health. On 13 July 2012 the first applicant was granted leave to remain as the parent of a sick child.",
"18. In two judgments of 15 November 2012, the Bordeaux Administrative Court of Appeal annulled the administrative detention orders of 17 February 2012 in respect of the first two applicants. Its judgments contained the same wording for each spouse :",
"“ 4. Article L. 561-2 of the Entry and Residence of Aliens and Right of Asylum Code provides, by way of exception to the cases where a foreign national may be placed in detention, the possibility of ordering a measure of restricted residence ( assignation à résidence ) if the alien can present guarantees to allay the risk of non-compliance with his or her obligation to leave France. Under provision 3 o of part II of Article L. 511-1 of the same Code, such risk must in particular be regarded as established, save in specific circumstances, in cases where the alien has already evaded the execution of a removal measure. The finding by the administrative authority of facts falling within provision 3 o of part II of Article L. 511-1, while it is such as to create a presumption of a risk that the alien might fail to comply with his or her obligation to leave France, does not dispense that authority, before any decision to place him or her in detention, from specifically examining the circumstances of the case. As regards aliens who are the parents of minor children and who do not have sufficient guarantees of compliance, such aliens being provided for by Article L. 562-1 of the said Code, and in accordance with the aims of Article 17 of Directive 2008/115/ EC, recourse to placement in detention can only constitute an exceptional measure in cases where the alien does not have a stable place of abode at the time when the prefectoral authority takes the necessary measures to prepare for the removal.",
"5. For the purposes of transposition of the above-mentioned Directive, Article L. 562-1 of the Entry and Residence of Aliens and Right of Asylum Code, as inserted by Law no. 2011 ‑ 672 of 16 June 2011, provides : ‘ In the cases provided for in Article L. 551 ‑ 1, where the alien is the parent of a minor child residing in France and has effectively contributed to the raising and education of that child in the conditions prescribed in Article 371-2 of the Civil Code since the birth of the child or at least for the past two years, and where the conditions for a restricted residence measure under Article L. 561-2 of the present Code are not fulfilled, the administrative authority can decide on a measure of curfew with electronic tagging, with the agreement of the alien concerned.",
"The measure of curfew with electronic tagging is decided by the administrative authority for a period of five days. The measure may be extended by the Liberties and Detention Judge under the same conditions as the extension of the administrative detention provided for in chapter II of title V of the present book. ’",
"6. It can be seen from the evidence in the file that on the date of the decision appealed against, Mr [A.B.], accompanied by his wife and four- year-old son [A.B.], had been accommodated for several years in the hostel of the asylum-seekers ’ reception centre in Chaingy, and that the child had been going to school. Mrs [A.A.B.] was apprehended on 16 February 2012 in that hostel, where the family had remained unlawfully, even though they had been requested to leave the premises by the centre ’ s administration, following the rejection of their requests for a review of their asylum situation by a decision of 28 July 2011 of the French Office for the Protection of Refugees and Stateless persons. In deciding on their placement in detention the prefect of Loiret merely stated that Mr [A.B.] did not present sufficient guarantees against the risk of non-compliance, as he did not have a valid passport, had no stable place of abode or sufficient income, and had not complied with the previous directions for his removal. It does not appear from the decision appealed against that the prefect had considered, having regard to the presence of a child, whether a less coercive measure than detention was possible for the necessarily short duration of the removal procedure. In those conditions, his decision was vitiated by an error of law and had for that reason to be declared null and void.",
"7. It transpires from the foregoing that, without there being any need to examine the other arguments in the application, Mr [A.B.] is justified in submitting that the judge appointed by the President of the Toulouse Administrative Court, in the judgment appealed against, had been wrong to reject his request for the annulment of the decision of 17 February 2012 placing him in administrative detention .”",
"..."
] | [
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"97. The applicants alleged that the placement of their child in administrative detention when he was four years old, in the Toulouse- Cornebarrieu centre, constituted treatment in breach of Article 3 of the Convention, which reads as follows :",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. The parties ’ submissions",
"98. The applicants wished firstly to point out certain events that had taken place prior to their placement in detention. They said that their child, who was brutally snatched from his day-to-day environment, as he had been going to school, had been arrested and taken away in a police van in the presence of an escort of several uniformed officers for a journey lasting nearly five hours.",
"99. The applicants then complained about the noise level in the Toulouse- Cornebarrieu detention centre. This centre was located in an area unsuitable for construction, according to the land-use plan, on account of the noise level caused by its proximity to Toulouse- Blagnac airport. According to the noise exposure survey of 2007, the level of exposure to noise in the centre ranged on average between 62 and 70 decibels ( db ). According to the World Health Organisation, exposure to noise at 70 db led to a loss of hearing and at 55 db to serious discomfort, while at 30 db children ’ s sleep was disturbed and at 35 db speech was no longer intelligible. According to an opinion of 6 May 2004 of the Superior Council of Public Health in France, a noise level of 60 db on the outside wall of residential buildings should not be exceeded.",
"100. The applicants asserted that, in any event, even though they were held in a centre which included a family area, it was unsuitable for small children on account of the tension and anxiety necessarily caused by such confinement. The physical conditions of organisation were not adapted to their presence. Their child had thus been shocked by loud-speakers which, by permanently broadcasting messages, created an ambient noise that was difficult to put up with, thus exacerbating the feeling of despair and putting detainees on edge. The applicants further emphasised that a four-year-old child was not supposed to remain for a whole day in the same room and that a small courtyard containing a slide was surrounded by railings several metres high with an escape-prevention net over the top. They added that they had not been preserved from the daily violence stemming from the confinement of other adults. They would come into contact with those adults in the communal areas of the centre. In addition, their child had been obliged to follow them in all their movements around the centre (OFII, CIMADE, medical visits ), then on their visits to the courthouse ( when summoned to appear before the Liberties and Detention Judge, Court of Appeal, Administrative Court ), when they were always escorted by armed police in uniform, sometimes crossing paths with other detainees who were handcuffed. The applicants explained that they had shared the family area with a couple who had four children of between 14 months and 5 years and that the couple ’ s children had been particularly traumatised as the father had violently slashed his arm in front of them using a knife, slicing tendons and nerves.",
"101. Lastly, the applicants argued, producing a medical certificate in evidence, that their child had undergone a traumatic experience.",
"102. The Government sought to distinguish the present case from the Popov judgment, in which the Court had found a violation of Article 3 of the Convention “in view of the children ’ s young age, the length of their detention and the conditions of their confinement in [the] detention centre”. In the present case, while similar to the Popov case in terms of the child ’ s age and the length of the detention, the conditions of accommodation for families in the Toulouse ‑ Cornebarrieu centre were, in the Government ’ s view, far superior to those examined by the Court in Popov. Relying on reports by the CPT and of the Inspector-General of Custodial Premises, they submitted that the Toulouse ‑ Cornebarrieu detention centre, a recent construction (2006) designed from the outset to cater for families, contained functional and modern facilities providing all detainees in general, and families in particular, with accommodation to the highest standard. They went on to say that the reception area for families was equipped with separate and tailored outdoor courtyards, that games were made available to children, and that appropriate toiletries and food were provided.",
"103. In response to the applicants ’ arguments about the proximity of the airport, the Government emphasised that neither the Inspector-General of Custodial Premises nor the CPT had commented on this issue and in particular neither of them had referred to an excessive noise level.",
"104. They argued that the applicants were asking the Court to find that the presence of a child in a detention centre constituted in itself, regardless of the physical conditions prevailing in that centre, treatment in breach of Article 3 of the Convention. That view, said the Government, went beyond the Court ’ s case-law, the Guidelines on Forced Return issued by the Committee of Ministers on 4 May 2005 and the provisions of the EU Return Directive.",
"105. Lastly, the Government rejected the applicants ’ argument that the young boy ’ s mental health problems were entirely attributable to his confinement in the centre. They pointed out that the medical certificate drawn up three months after the applicants ’ release had only indicated “polymorphous manifestations of psychiatric disorders in a child of 4 years and 9 months, related to a destabilisation of family life, precarity of day-to-day surroundings, uprooting and a loss of habitual references ”, without expressly associating these problems with the detention.",
"106. For these reasons, the Government took the view that the conditions of the applicants ’ detention could not be regarded as constituting a violation of Article 3.",
"B. The Court ’ s assessment",
"1. Applicable principles",
"107. The Court reiterates that Article 3 of the Convention makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161).",
"108. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, and in particular the nature and context of the treatment, the manner in which it was inflicted, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII).",
"109. The Court has found a violation of Article 3 of the Convention on a number of occasions on account of the placement in migrant detention centres of accompanied minors ( see Muskhadzhiyeva and Others v. Belgium, no. 41442/07, 19 January 2010; Kanagaratnam v. Belgium, no. 15297/09, 13 December 2011; and Popov, cited above ) or unaccompanied minors ( see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, ECHR 2006 ‑ XI, and Rahimi v. Greece, no. 8687/08, 5 April 2011 ). In cases concerning the placement of accompanied foreign minors, it has found a violation of Article 3 in particular on account of a combination of three factors : the child ’ s young age, the length of the detention and unsuitability of the premises for the accommodation of children.",
"2. Application to the present case",
"110. The Court finds that in the present case, as in the case of Muskhadzhiyeva and Others ( cited above ), the applicants ’ child was accompanied by his parents throughout the period of detention. It takes the view, however, that this factor is not such as to release the authorities from their obligation to protect the child and to adopt appropriate measures in line with their positive obligations under Article 3 of the Convention ( ibid ., § 58) and it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the child ’ s status as illegal immigrant ( see Popov, cited above, § 91; compare Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). It observes that the European Union directives regulating the detention of migrants adopt the position that minors, whether or not they are accompanied, constitute a vulnerable category requiring the special attention of the authorities. Children certainly have specific needs, resulting in particular from their age and dependence.",
"111. The Court notes that, during the detention in question, the applicants ’ child was four years old and he was held with his parents for eighteen days at the Toulouse- Cornebarrieu detention centre.",
"112. As regards the physical conditions of the detention, the Court observes that the Toulouse- Cornebarrieu centre is one of the facilities that is “authorised” to receive families under a decree of 30 May 2005 ... It can be seen from the inspection reports on this centre ... that the authorities were careful to separate families from the other detainees, to provide them with specially fitted rooms and to make available material that was tailored to child care. Moreover, the NGOs have acknowledged that, unlike the situation in Popov ( cited above ), the physical conditions in the centre were not problematic.",
"113. The Court would observe, however, that the Toulouse ‑ Cornebarrieu detention centre, being situated right next to the runways of Toulouse- Blagnac airport, is exposed to particularly high noise levels which have resulted in the land being classified as an “area unsuitable for building” ... It points out that children, for whom periods of outdoor leisure activities are necessary, are thus particularly affected by the excessive noise. The Court further finds, without having to rely on the medical certificate produced by the applicants, that the constraints inherent in a place of detention, which are particularly arduous for a young child, together with the centre ’ s conditions of organisation, must have caused the applicants ’ child some anxiety. The boy, who could not be left alone, was obliged to attend, with his parents, all the meetings required by their situation, together with the various judicial and administrative hearings. While being transferred for that purpose he would mix with armed police officers in uniform. In addition, he was constantly subjected to the announcements made through the centre ’ s loudspeakers. Lastly, he witnessed the mental distress sustained by his parents, in a place of confinement that did not allow him to distance himself.",
"114. The Court is of the view that such conditions, even though they necessarily represent a significant source of stress and anxiety for a small child, are not sufficient, where the confinement is for a short duration, depending on the circumstances of the case, to attain the threshold of severity required to engage Article 3. It is convinced, however, that in the case of a longer period, the repetition and accumulation of such mental and emotional aggression would necessarily have harmful consequences for a young child, exceeding the above-mentioned threshold. Accordingly, the passage of time is of primary significance in this connection for the application of this Article. The Court concludes that the permissible short duration has been exceeded in the present case, which concerns the detention of a four-year-old child lasting for eighteen days in the conditions set out above.",
"115. Therefore, in view of the age of the applicants ’ child, and the length and conditions of his confinement in the Toulouse- Cornebarrieu detention centre, the Court finds that the authorities subjected this child to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention. There has accordingly been a violation of that Article in respect of the applicants ’ child.",
"III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION",
"116. The applicants argued that the placement of their child in administrative detention was in breach of Article 5 §§ 1 and 4. Those provisions read as follows :",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"A. Article 5 § 1",
"1. The parties ’ submissions",
"117. The applicants contended that Article 5 § 1 had been breached as the authorities had failed to ascertain whether an alternative to administrative detention could be envisaged. They claimed that they had been accommodated since 2009 on a continuous basis, though without being settled, in the asylum-seekers ’ reception centre at Chaingy and that they had even presented, during the proceedings, a certificate of accommodation from one of their relatives offering to receive them.",
"118. In the Government ’ s view, the present case had to be distinguished from Popov for three reasons. Firstly, they contended that the accommodation conditions in the detention centre were not unsuited to the placement of the applicants and their child pending removal. Secondly, they pointed out that Article L. 553-1 of the Entry and Residence of Aliens and Right of Asylum Code, as worded following the Law of 16 June 2011, now indicated that minors could be held in certain centres when the law expressly provided that they could stay there with their parents. Lastly, the Government noted that the prefectoral authority had examined beforehand the possibility of an alternative measure of restricted residence but had rejected it because the applicants had not presented guarantees that they would not abscond. In the detention order the prefect had thus noted that the applicants did not have sufficient guarantees that they would not abscond, as they did not have “a valid passport, ... neither a fixed abode nor sufficient resources, [had] not complied with the previous removal directions issued to [them] and [had] formally opposed, when interviewed, [their] return to [their] country of origin”. The Liberties and Detention Judge had also been careful to assess the relationship between the reason for the applicants ’ detention and the place and conditions of that detention.",
"2. The Court ’ s assessment",
"119. In order to comply with Article 5 § 1, any deprivation of liberty has to follow “a procedure prescribed by law” and must be “lawful” ( see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33, and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III).",
"120. The Court reiterates, moreover, that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. In principle it is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from absconding or from committing an offence. The Court nevertheless has regard to the specific situation of the detained person. Thus, by way of exception, when a child is involved it considers that the deprivation of liberty must be necessary to fulfil the aim pursued, namely to secure the family ’ s removal. In the case of Popov ( cited above ) it found a violation of Article 5 § 1 after observing in particular that the authorities had not verified that the placement in administrative detention was a measure of last resort for which no alternative was available ( ibid., § 119).",
"121. The Court notes that French law regulates certain aspects of the presence of minors accompanying parents who have been placed in administrative detention ... However, there are no statutory provisions governing the conditions in which the child ’ s presence is possible. In particular, as a foreign minor under eighteen cannot be subject to an obligation to leave France ..., there is no provision in domestic law to the effect that a child can be subject to a detention order for the purposes of removal. This explains why the order in the present case was only made against the parents and not against the child accompanying them.",
"122. However, the Court observes that the situation of children is intrinsically linked to that of their parents, from whom they should not be separated as far as possible. That link, which is in the children ’ s interest, has the consequence that, where the parents are placed in detention, their children are themselves de facto deprived of liberty. That deprivation of liberty stems from the legitimate decision of the parents, having authority over their children, not to entrust them to the care of a third party. The Court can accept that such a situation is not, in principle, incompatible with domestic law. It nevertheless emphasises that the environment in which the children then find themselves is a source of anxiety and tension that may cause them serious harm.",
"123. In those circumstances, the Court finds that the presence in a detention centre of a child accompanying its parents will comply with Article 5 § 1 ( f) only where the national authorities can establish that this measure of last resort has been taken after actual verification that no other measure involving a lesser restriction of their freedom could be implemented.",
"124. In the present case, the Court notes that the applicants and their child were placed in a detention centre pending their removal and, accordingly, this constituted a deprivation of liberty for the purposes of Article 5 § 1 ( f). The Court would refer to the finding of the Administrative Court of Appeal that there was no indication in the detention orders that the prefect had verified, in view of the child ’ s presence, whether an alternative measure that would have been less coercive than detention was possible. Accordingly, while having regard to the reasons given in the prefect ’ s decision to place the applicants in a detention centre, the Court takes the view that the evidence before it is not sufficient for it to be satisfied that the domestic authorities had effectively verified that the administrative detention of the family was a measure of last resort with no possible alternative.",
"125. Having regard to the foregoing, the Court finds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicants ’ child.",
"..."
] |
6 | S.F. and Others v. Bulgaria | 7 December 2017 | This case concerned a complaint brought by an Iraqi family about the conditions in which they had been kept in immigration detention for a few days when trying to cross Bulgaria on their way to Western Europe in 2015. The applicants complained in particular about the conditions in which the three minors – then aged 16, 11 and one and a half years – had been kept in the detention facility in Vidin. Submitting a video recording, they alleged in particular that the cell in which they had been held had been extremely run-down. They also maintained that the authorities had failed to provide them with food and drink for the first 24 hours of their custody and that the baby bottle and milk of the youngest child had been taken away upon their arrival at the facility and only given to the mother 19 hours later. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the three children. It noted in particular that the amount of time spent by the applicants in detention – a period of either thirty-two hours or forty-one hours (the exact length of time was disputed by the parties) – was shorter than the periods referred to in the above-mentioned cases. However, the conditions were considerably worse than those in all those cases (including limited access to toilet facilities, failure to provide food and drink and delayed access to the toddler’s baby bottle and milk). For the Court, by keeping the three minor applicants in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment. While acknowledging that in recent years the States Parties that sit on the European Union’s external borders have had difficulties in coping with the massive influx of migrants, the Court found, however, that it could not be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest. | Accompanied migrant minors in detention | Conditions of detention | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The five applicants are Iraqi nationals. They now live in Switzerland, where they were granted asylum in July 2017 (see paragraph 31 below). The first and second applicants, Mr S.F. and Mrs W.O., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.F ., Mr S.F. and Mr A .F ., born respectively in 1999, 2004 and 2014, are their sons.",
"A. The applicants ’ interception and arrest",
"6. On 14 August 2015 the applicants, who had fled from Iraq, covertly crossed the Turkish-Bulgarian border. They were travelling with four other families. From there, they took taxis which drove them to the outskirts of Sofia, where they slept under the open sky for two nights. On 17 August 2015, they hired other taxis to drive them to the Bulgarian-Serbian border, somewhere around the town of Bregovo. Shortly before the border, the applicants switched cars, getting into a Toyota sports utility vehicle, which was supposed to take them through a wooded area to the border itself. They intended to cross that border covertly as well, and from there continue towards Western Europe.",
"7. At that time, the second applicant was three months pregnant.",
"8. According to media reports, over the last few years the above ‑ mentioned route has been a popular one for migrants trying to cross Bulgaria covertly on their way to Western Europe. According to a report submitted by the Government, in August 2015 the Bulgarian border police intercepted 350 adult migrants and 132 minor migrants near Bregovo and took them into custody.",
"9. In the late afternoon of 17 August 2015 the applicants were driven in the Toyota towards the Bulgarian-Serbian border near the village of Rabrovo, which is about fifteen kilometres south of Bregovo, twenty-five kilometres west of the town of Vidin, and about two kilometres from the border. It was also transporting the four other families; together with the applicants, it carried a total of eighteen passengers, eight of whom were minors.",
"10. At about 5 p.m., when the Toyota was just a few metres away from the border, two officers of the Bulgarian border police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all the passengers to step out of the vehicle. The first officer could not catch up with the driver and came back. According to the applicants, he was apparently annoyed about his inability to detain the driver and hit one of the passengers. The applicants submitted that they had been afraid that he might hit them as well.",
"11. Half an hour later, two more officers came to the scene; subsequently, a bus, with a driver and a photographer, also arrived. According to the applicants, the officers insulted the arrestees, called them “mice” (the applicants did not specify in what language), and made insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to the Bregovo Border Police Department ’ s detention facility in Vidin. According to the applicants, the drive took about an hour. According to the Government, the drive could not have taken less than three hours. The preparation of the documents relating to the applicants ’ arrest then took another hour, and the written declarations that they had been acquainted with their rights were stamped as having been signed at 9 p.m. The applicants could not have therefore been placed in their cell earlier than 10 p.m.",
"B. The applicants ’ detention in Vidin",
"12. Upon their arrival at the border police ’ s detention facility in Vidin, the applicants were searched. According to them, all their effects – including travelling bags, mobile telephones, money, food, and even the fifth applicant ’ s nappies, baby bottle and milk – were taken away from them, except for a mobile telephone belonging to the third or the fourth applicant, which they managed to conceal. According to a search report submitted by the Government, when searching the second applicant the authorities seized from her four mobile telephones, SIM cards, a USB flash drive, two digital video disks and cash. The Government also pointed out that in a video submitted by the applicants (see paragraph 15 below), travel bags and personal effects were visible inside their cell.",
"13. After the search, the arrestees were split into two groups. The applicants and another family were put in one cell, and the others in an adjoining one. In the application form, the applicants stated that both cells were on the detention facility ’ s second floor.",
"14. According to the applicants, the cell was hot and its window could not be opened.",
"15. The applicants also submitted a video, which according to them had been shot with the mobile telephone that they had managed to conceal during the search ( see paragraph 12 above ). It shows that the cell was at ground level, about 4 by 4 metres, with a large double window ( secured on the inside by a mesh grille ), an open door, and a padlocked metal grille on the door. In the video the cell looks run-down, with dilapidated walls, paint coming off the ceiling in flakes, and a dirty floor partly covered with dirty ( and in places damp ) cardboard sheets. The furniture consists of two old and dilapidated bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses are on the floor, one is on the single bed, and one is on the bottom bunk of one of the bunk beds. A single crumpled ‑ up bed sheet lies on one of the mattresses on the floor. Personal effects, such as a small shoulder bag, training shoes and some litter, are strewn about. Other random objects – food remains, empty plastic bottles, rubbish and a torn blanket – are piled up in a corner. The third and fourth applicants can be seen sitting on one of the bunk beds, whereas the fifth applicant (the toddler) can at first be seen sitting on the floor beside the door and then being picked up and carried around by the first applicant. Apart from the five applicants, three other people can be seen in the cell : a middle ‑ aged woman lying on the single bed, a boy (perhaps two or three years old), and the man shooting the video.",
"16. The video was submitted by the applicants on a digital video disk containing two video files. One is in .mpg format and bears a time stamp according to which it was last modified at 5.36 p.m. on 17 September 2015; and the other is in .mp4 format and bears a time stamp according to which it was last modified at 3.27 p.m. on 15 December 2015. The footage in both files is identical, except that : (a) the faces of the applicants in the first one have been pixelated ( whereas in the second they have not ); (b) the running time of the first video is one minute and twenty- one seconds ( whereas that of the second is one minute and thirty-two seconds, as it continues for another ten seconds ); and (c) in the first file the footage is horizontal whereas in the second it is rotated to the right at a ninety -degree angle. The footage in the first file has a definition of 1,280 by 720 pixels and is at twenty-four frames per second, whereas that in the second file has a definition of 1,920 by 1,080 pixels and is at twenty-nine frames per second.",
"17. The applicants explained that the above-mentioned dates and times corresponded with when they had copied the video files in Switzerland, and that they had in fact recorded the original video on 18 August 2015, at about noon. Since they had taken the SIM cards out of the mobile telephone several times in the course of their journey and then re- inserted them, the telephone had not indicated the correct time and date, making it impossible to pinpoint the exact date and time when the video had been recorded.",
"18. In a letter to the Government Agent, an official from the Migration Directorate of the Ministry of Internal Affairs in Sofia, having compared the video footage with the photographs in the applicants ’ migration files, stated that he could confirm that the applicants were indeed the people featured in the video.",
"19. According to the Government, the border police ’ s detention facility in Vidin was equipped in accordance with the relevant regulations. They did not provide further details in that respect.",
"20. According to the applicants, after being put in the cell, they were not given anything to eat or drink, or allowed to go to the toilet. Since there was no toilet or a bucket in the cell, they had to urinate onto the floor. The Government did not comment on that point.",
"21. About four hours later, at about 10 p.m., officers came and took the first applicant to another building in order to take his picture and to digitally fingerprint him. After that, the officers took out the second applicant for fingerprinting. After the fingerprinting procedure, the officers left the applicants in the cell for the night.",
"22. Between 10.30 a.m. and 11 a.m. and between 11 a.m. and 11.30 a.m. the next day, 18 August 2015, a border police investigator interviewed respectively the first and the second applicants. The interviews were conducted in English and translated into Bulgarian with the help of an interpreter.",
"23. According to the applicants, after the interview the second applicant asked the guards to give her back her bag, so that she could prepare a baby bottle for her toddler ( the fifth applicant ), and the guards did so. The Government did not comment on that point.",
"24. After that, the guards took the applicants one by one out of the cell to go to the toilet.",
"25. According to the applicants, later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electric shock. That caused panic among the detainees, and the guards allowed all of them out of their cells. An ambulance was called. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance argued with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital in Vidin, where the second applicant was examined by a gynaecologist between 8.05 p.m. and 8.35 p.m., and the fifth applicant was examined by a paediatrician between 8.20 p.m. and 8.40 p.m. Two or three hours later they were taken back to the detention facility.",
"26. According to the applicants, at that point the guards told them that they would give them food if they paid for it; the guards then took money from their bags and gave them two loaves of bread, a yoghurt, four bottles of Coca-Cola, one kilogram of tomatoes, one kilogram of cucumbers, one kilogram of bananas, and a small piece of paté. According to the Government, the applicants were provided with food and water, in accordance with the relevant regulations. In support of their assertion, the Government submitted a table setting out the prescribed daily rations for adult and minor detained migrants and a report, drawn up by the head of the Bregovo Border Police Department on 1 September 2015, which listed the names of all migrants – including the applicants – which had been detained in the Department ’ s detention facility in Vidin during the month of August 2015 and provided with food there.",
"27. Then, at about 10 p.m. or 11 p.m., the applicants were put back in the cell. According to them, they were allowed to go to the toilet before that, but had not been able to do so during the night. The Government did not comment on that point.",
"28. The next day, 19 August 2015, the applicants were served with orders for the first and second applicants ’ removal from Bulgaria and for their detention pending removal, all issued the previous day. It does not appear that separate orders were issued with respect to the third, fourth and fifth applicants, who were mentioned as accompanied minors in the orders for the first and second applicants ’ detention (see paragraph 33 below).",
"C. Ensuing developments",
"29. According to the applicants, at about midday on 19 August 2015 they were given back their belongings and driven to an immigration detention facility in Sofia. According to the Government, that happened much earlier that day, at about 6 a.m. or 7 a.m., since the relevant records showed that the applicants had been placed in the detention facility in Sofia at 2.45 p.m., and the normal travel time between the two facilities was about six or seven hours.",
"30. On 24 August 2015 the applicants sought international protection in Bulgaria. Their applications were registered by the State Agency for Refugees on 31 August 2015, and they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum-seekers. On 23 September 2015 those proceedings were, however, discontinued because the applicants had vanished from the facility.",
"31. In the meantime, the applicants made their way to Switzerland, where they likewise sought international protection on 8 September 2015. On 8 January 2016 the Swiss authorities decided not to examine their applications but rather to transfer them back to Bulgaria under Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person ( “the Dublin III Regulation”), which also applies to Switzerland (see A.S. v. Switzerland, no. 39350/13, § § 12-13, 30 June 2015 ). Following legal challenges by the applicants, on 7 July 2016 the Swiss authorities varied their own decision and proceeded with the examination of the applications. Just over a year later, on 27 July 2017, the applicants were granted asylum in Switzerland."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Detention of aliens who have crossed the border illegally",
"32. Under section 102 (1) (10) of the Ministry of Internal Affairs Act 2014, the border police may detain aliens who have not complied with the border crossing regime in pre-trial detention facilities or special immigration detention facilities.",
"B. Detention of minor aliens",
"33. Under section 44(9) of the Aliens Act 1998, as amended in 2013, accompanied minor aliens may exceptionally be detained, pending their removal, for a period of three months, but the detention facilities in which they are placed must have special premises adapted to their age and needs. Unaccompanied minor aliens may not be detained in detention facilities for aliens.",
"C. Damages for poor conditions of detention",
"34. By section 1(1) of the State and Municipalities Liability for Damage Act 1988, the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions undertaken by State or municipal authorities or civil servants in the course of or in connection with administrative action.",
"35. Between 2003 and 2017, convicts and pre-trial detainees routinely claimed damages under this provision with respect to the conditions of their detention (see Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § § 127 -31, 27 January 2015 ).",
"36. By contrast, there is only one reported case relating to conditions in detention facilities for aliens. It was brought in 2010 by a Turkish national kept in an immigration detention facility in Sofia for thirteen days in 2009. The Sofia City Administrative Court found the claim admissible but unproven (see реш. № 2847 от 10.06.2011 г. по адм. д. № 6036/2010 г., АдмС-София-град ). The Supreme Administrative Court upheld the judgment on the same basis (see реш. № 14967 от 16.11.2011 г. по адм. д. № 9889/2011 г., ВАС, III о. ).",
"37. Following the Court ’ s pilot judgment in Neshkov and Others (cited above ), in October 2016 the Government introduced in Parliament a bill to amend the Execution of Punishments and Pre- trial Detention Act 2009 and create two dedicated preventive and compensatory remedies in respect of inhuman or degrading conditions of detention in correctional and pre-trial detention facilities. The bill was enacted and came into force on 7 February 2017 (see Atanasov and Apostolov v. Bulgaria ( dec. ), nos. 65540/16 and 22368/17, §§ 12 -28, 27 June 2017).",
"D. Claims for damages against the State Agency for Refugees in relation to the allegedly slow processing of applications for international protection",
"38. In several cases aliens kept in immigration detention brought claims under section 1(1) of the 1988 Act ( see paragraph 34 above ) against the State Agency for Refugees, alleging that their detention had been unduly prolonged because the Agency had failed to process their applications for international protection in a timely manner. In one such case, in determining the quantum of the award of non-pecuniary damages, the Sofia City Administrative Court held, by reference to this Court ’ s case-law, that it should not be too strict in requiring detained asylum-seekers to prove that they had suffered mentally as a result of their unduly prolonged decision (see реш. № 4059 от 17.06.2013 г. по адм. д. № 3527/2013 г., АдмС ‑ София-град ). Its judgment was, however, reversed on appeal by the Supreme Administrative Court, which held, inter alia, that it had erred in doing so. On that point, it had to abide by the domestic rules of procedure, which required full proof in that respect and could not be disregarded simply because this Court had in some cases found their application unduly formalistic (see реш. № 75 от 05.01.2015 г. по адм. д. № 10659/2013 г., ВАС, III о. ). That judgment was fully in line with all other judgments of the Supreme Administrative Court in similar cases against the State Agency for Refugees in which the court likewise insisted on the submission of specific proof of non-pecuniary damage (see реш. № 8294 от 18.06.2014 г. по адм. д. № 876/2014 г., ВАС, III о.; реш. № 9035 от 30.06.2014 г. по адм. д. № 2577/2014 г., ВАС, III о.; реш. № 11766 от 0 7.10.2014 г. по адм. д. № 2575/2014 г., ВАС, III о.; and реш. № 2454 от 0 9.03.2015 г. по адм. д. № 6512/2014 г., ВАС, III о. ).",
"III. RELEVANT STATISTICAL DATA",
"39. According to data published by Eurostat, in 2014 672,215 third ‑ country nationals were found to be illegally present on the territory of Member States of the European Union. The numbers for 2015 and 2016 were respectively 2,154,675 people and 983,860 people.",
"40. The respective numbers for Greece and Hungary, States which sit, respectively, on the south-eastern border of the European Union and on the south-eastern border of the main Schengen Area, were as follows. For Greece, they were 73,670 people in 2014, 911,470 people in 2015, and 204,820 people in 2016. For Hungary, they were 56,170 people in 2014, 424,055 people in 2015, and 41,560 people in 2016.",
"41. For Bulgaria, the respective numbers were 12,870 people in 2014, 20,810 people in 2015, and 14,125 people in 2016.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"42. The applicants alleged that the conditions of their immigration detention had subjected the three minors – the third, fourth and fifth applicants – to inhuman and degrading treatment. They relied on Article 3 of the Convention, which provides :",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Scope of the complaint",
"43. The Government submitted that the applicants had not complained in relation to the conditions in the immigration detention facility in Sofia, and that their complaint only concerned the conditions in the border police ’ s detention facility in Vidin.",
"44. The applicants replied that their complaint concerned the time from about 5 p.m. on 17 August 2015, when they had been arrested, until about 11 a.m. on 19 August 2015, when they had left the border police ’ s detention facility in Vidin.",
"45. In the light of the parties ’ submissions, the Court finds that the complaint only concerns the conditions in the border police ’ s detention facility in Vidin.",
"B. Admissibility",
"1. Exhaustion of domestic remedies",
"(a) The parties ’ submissions",
"46. The Government submitted that aliens held in immigration detention could obtain damages under section 1(1) of the 1988 Act (see paragraph 34 above) with respect to the conditions of that detention. That remedy was capable of offering sufficient redress to those no longer in custody. The Government were, however, not aware of any such claims. Detained aliens preferred to claim damages with respect to alleged delays in the processing by the State Agency for Refugees of their applications for international protection. The Government quoted extensively the first-instance judgment mentioned in paragraph 38 above, and on that basis argued that it was clear that a claim relating to the conditions in which the third, fourth and fifth applicant had been kept would have been examined in line with Convention standards. Another argument in that respect was that following the case of Neshkov and Others v. Bulgaria (nos. 36925/10 and 5 others, 27 January 2015), the Bulgarian courts ’ case-law had evolved, affording a greater efficacy to the remedy specified under section 1(1) of the 1988 Act. The applicants, who had had access to interpreters and lawyers from a non ‑ governmental organisation during their stay in the immigration detention facility in Sofia, had been in practice capable of resorting to that remedy. Yet, they had not done so.",
"47. The applicants did not comment on that point.",
"(b) The Court ’ s assessment",
"48. It is not in doubt that the applicants could have brought a claim for damages under section 1(1) of the 1988 Act ( see paragraph 34 above ) in relation to the conditions in which the three minors – the third, fourth and fifth applicants – had been kept in the border police ’ s detention facility in Vidin. The practical difficulties owing to their being foreigners who do not speak Bulgarian does not exempt them from the requirement of Article 35 § 1 of the Convention to exhaust domestic remedies (see Choban v. Bulgaria ( dec. ), no. 48737/99, 23 June 2005; Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99 and 7 others, § 101, ECHR 2010; and Djalti v. Bulgaria, no. 31206/05, § 75, 12 March 2013 ).",
"49. Nor is it open to question that, after the end of the applicants ’ detention – which came more than five months before they lodged their application (see paragraphs 1 and 30 above) – the damages which they could have obtained as a result of such a claim would have amounted to adequate redress for their grievance (see A.F. v. Greece, no. 53709/11, § § 53-54, 13 June 2013; Housein v. Greece, no. 71825/11, § § 55-56, 24 October 2013; de los Santos and de la Cruz v. Greece, nos. 2134/12 and 2161/12, § § 32-33, 26 June 2014; and Mohamad v. Greece, no. 70586/11, § 50, 11 December 2014 ).",
"50. The only point at issue is whether such a claim would have been reasonably likely to succeed at the time when the applicants lodged their application – February 2016 (see paragraph 1 above).",
"51. Since about 2003, claims under section 1(1) of the 1988 Act have been the usual way in Bulgaria to seek damages with respect to poor conditions in correctional and pre-trial detention facilities ( see Neshkov and Others, cited above, §§ 127 -31 ). In several decisions and judgments given in 2008 - 10, the Court found that they were an effective ex post facto remedy with respect to complaints under Article 3 of the Convention in such cases (ibid., § 192, with further references ).",
"52. Inasmuch as section 1(1) of the 1988 Act lays down a general rule governing the liability of the authorities in relation to administrative action, there is no reason why it could not also apply with respect to conditions in immigration detention facilities ( compare, mutatis mutandis, the statutory provisions at issue in A.F. v. Greece, §§ 55-61; Housein, §§ 57-62; and de los Santos and de la Cruz, §§ 34-36, all cited above; also contrast the provisions at issue in Rahimi v. Greece, no. 8687/08, § 76, 5 April 2011). However, with one exception in 2010-11 – a case in which the claim, though admitted for examination, failed on its facts (see paragraph 36 above ) – aliens kept in immigration detention in Bulgaria do not appear to have resorted to claims under that provision to seek redress for poor conditions of detention. Even so, in 2013 the Court noted that, although the Bulgarian courts ’ case-law regarding conditions of detention under that provision had initially developed in relation to correctional and pre-trial detention facilities, it had, as demonstrated by that case, also been applied in relation to immigration detention facilities. The Court went on to say that if there was doubt regarding whether a remedy was likely to succeed, it had to be attempted, and on that basis concluded that by not bringing such a claim an alien aggrieved by the conditions in which he had been kept in an immigration detention facility in Sofia had failed to exhaust domestic remedies (see Djalti, cited above, §§ 73, 74 and 76 ).",
"53. However, in 20 15, in the light of information that – owing to the way in which the Bulgarian administrative courts approached conditions ‑ of ‑ detention claims lodged by convicts and pre-trial detainees under section 1(1) of the 1988 Act – that remedy was not operating well in practice, the Court found that it was not effective or offering a reasonable prospect of success in such cases ( see Neshkov and Others, cited above, §§ 194-206). It went on to hold that Bulgaria had to make available effective compensatory and preventive remedies in respect of allegedly inhuman and degrading conditions in correctional and pre-trial detention facilities (ibid., §§ 279-89).",
"54. As a result, at the proposal of the Government, in early 2017 the Bulgarian Parliament amended the Execution of Punishments and Pre-Trial Detention Act 2009, introducing preventive and compensatory remedies specifically designed to provide redress in respect of inhuman or degrading conditions in correctional and pre-trial detention facilities (see paragraph 37 above). In June 2017 the Court held that those remedies could be seen as effective (see Atanasov and Apostolov v. Bulgaria ( dec. ), nos. 65540/16 and 22368/17, §§ 44- 68, 27 June 2017 ).",
"55. The question now facing the Court is whether its findings in Neshkov and Others (cited above, §§ 130-36, 194-206), which highlighted emerging problems in the operation of the remedy under section 1(1) of the 1988 Act, should prompt it to revisit its earlier ruling in Djalti (cited above, §§ 73, 74 and 76) and hold that, at the time when the applicants lodged this application – February 2016 ( see paragraph 1 above ) – a claim for damages under that provision was not a remedy offering a reasonable prospect of success with respect to aliens complaining of the conditions of their immigration detention.",
"56. It appears that, since the Court ’ s judgment in the case of Djalti (cited above) in 2013, no aliens have brought such claims. There is thus no direct evidence on the point – a state of affairs for which the Government cannot be blamed (see Mahamed Jama v. Malta, no. 10290/13, § 63, 26 November 2015; Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, § 48, 12 January 2016; and Abdi Mahamud v. Malta, no. 56796/13, § 52, 3 May 2016 ). There are, however, three reasons which, in this case, compel the conclusion that in February 2016 such a claim would not have been reasonably likely to succeed.",
"57. First, some of the issues noted in Neshkov and Others (cited above, §§ 194-206 ) – (a) that in such cases the Bulgarian administrative courts applied the rule that the burden of proof lies on the party making an allegation in a very strict way; (b) that they often did not take into account the general prohibition on inhuman or degrading treatment but only had regard to the concrete statutory or regulatory provisions governing conditions of detention; and (c) that they often failed to recognise that inhuman or degrading conditions of detention must be presumed to cause non-pecuniary damage – are not exclusive to cases relating to conditions in correctional and pre-trial detention facilities; they can also affect cases concerning conditions in immigration detention facilities.",
"58. Secondly, the Government ’ s assertion that the evolution of the Bulgarian administrative courts ’ case-law in conditions-of-detention cases between the Court ’ s judgment in Neshkov and Others (cited above) in January 2015 and February 2016 had again rendered the remedy under section 1(1) of the 1988 Act effective is – quite apart from its not being supported by any examples – hard to reconcile with their opting in October 2016 to propose the introduction of a dedicated remedy in that respect, which was put in place by way of a special legislative amendment (see paragraph 37 above).",
"59. Lastly, the example whereby the Government sought to substantiate their assertion that the Bulgarian administrative courts generally examined claims by aliens under section 1(1) of the 1988 Act in relation to their immigration detention in a manner that was in line with Convention standards does not stand up to scrutiny. It cannot be overlooked that the first-instance judgment cited by them had been quashed on appeal, with the Supreme Administrative Court, in line with its settled case-law on the point, criticising the lower court for having disregarded the strictures of domestic evidentiary rules by reference to rulings of this Court (see paragraph 38 above, and contrast, mutatis mutandis, Posevini v. Bulgaria, no. 63638/14, § 55, 19 January 2017 ).",
"60. The Government ’ s objection cannot therefore be allowed.",
"2. Alleged abuse of the right of individual application",
"(a) The parties ’ submissions",
"61. The Government submitted that the applicants – by failing to mention in their application to the Court the applications for international protection which they had made in Bulgaria, or to inform the Court of the unfolding of the proceedings pursuant to their applications for international protection in Switzerland – had attempted to mislead the Court and had thus abused their right to an individual application. It could be presumed that they had used their application to the Court to support their legal challenges against the Swiss authorities ’ decision to transfer them back to Bulgaria.",
"62. The applicants did not make submissions in respect of that point.",
"(b) The Court ’ s assessment",
"63. The submission by applicants of incomplete information may amount to “ an abuse of the right of individual application ” within the meaning of Article 35 § 3 (a) of the Convention, especially if the information concerns the core of the case or essential evidence, and the failure to disclose it has not been sufficiently explained. A failure on the applicant ’ s part to bring to the Court ’ s attention important developments taking place during the proceedings may also constitute such abuse (see S.A.S. v. France [GC], no. 43835/11, § 67, 1 July 2014, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references ).",
"64. In this case, the only relevant complaint was under Article 3 of the Convention in respect of Bulgaria of the conditions of the third, fourth and fifth applicants ’ detention. In their application, they gave a detailed description of the facts relating to that complaint. The information about their applications for international protection in Bulgaria and Switzerland and the way in which these had been dealt with ( see paragraphs 30 and 31 above ) does not relate to it. That information would have been relevant if the applicants had also complained in respect of Bulgaria of their possible removal to their country of origin, or in respect of Switzerland of the Swiss authorities ’ intention to transfer them back to Bulgaria under the Dublin III Regulation. But they did not (contrast M.S.S. v. Belgium and Greece [GC], no. 30696/09, § § 362-68, ECHR 2011; Tarakhel v. Switzerland [GC], no. 29217/12, § § 53-122, ECHR 2014 (extracts); and A.S. v. Switzerland, no. 39350/13, § § 15-38, 30 June 2015 ). Their alleged failure to keep the Court fully apprised of those developments does not therefore raise an issue under Article 35 § 3 (a) of the Convention.",
"65. Even if the applicants applied to the Court not just in order to vindicate their rights under Article 3 of the Convention but also with a view to using the proceedings to bolster their applications for international protection in Switzerland, that does not mean that their application was abusive (see, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 45, Series A no. 310; Foti and Others v. Italy, nos. 7604/76 and 3 others, Commission decision of 11 May 1978, Decisions and Reports (DR) c 14, p. 140, at p. 143; and McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980 DR 20, p. 44, at p. 70 ). The term “abuse of [a] right”, as used in Article 35 § 3 (a) of the Convention, must be understood in its ordinary meaning – namely, the harmful exercise of a right by its holder in a manner inconsistent with the purpose for which it has been granted (see S.A.S. v. France, cited above, § 66, which cites Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009). There is nothing to suggest that the applicants have sought to deflect the proceedings before the Court towards an end inconsistent with their real purpose.",
"66. There are therefore no grounds to find the application abusive under Article 3 5 § 3 (a) of the Convention.",
"3. Conclusion as to the admissibility of the complaint",
"67. The Government submitted that since the applicants had been treated in a manner fully in line with the applicable rules and since the authorities had taken into account their heightened vulnerability, the complaint was manifestly ill-founded.",
"68. The applicants maintained their allegations.",
"69. The Court cannot agree with the Government that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on other grounds. It must therefore be declared admissible.",
"C. Merits",
"1. The video evidence submitted by the applicants",
"(a) The parties ’ submissions",
"70. The Government argued that the video submitted by the applicants, which would not be admissible in domestic proceedings, could not serve as proper evidence in these proceedings either. It was impossible to establish the precise date and time when it had been shot, and its quality was very poor. It had obviously been created with a view to being used as evidence, and it was well known that video footage could easily be manipulated. One could not hear Bulgarian being spoken on it, see any objects featuring the Cyrillic script, or be certain that the premises featuring in it were in fact those of the border police ’ s detention facility in Vidin. Indeed, it was unclear whether it had even been shot in Bulgaria.",
"71. The applicants gave explanations about the circumstances in which they had recorded and then copied the video ( see paragraph 17 above ).",
"(b) The Court ’ s assessment",
"72. According to its settled case-law, the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it (see Ireland v. the United Kingdom, 18 January 1978, § 210, Series A no. 25, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 208, ECHR 2013 ). It is not bound by procedural barriers to the admissibility of evidence, and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII, and, in relation specifically to the detention of minors migrants, Rahimi, cited above, § 64 ). These points reflect the well ‑ established principle of international law that international courts are not bound by domestic evidentiary rules (see, in relation specifically to the Court, Al Nashiri v. Poland, no. 28761/11, § 23, 24 July 2014, and Husayn (Abu Zubaydah ) v. Poland, no. 7511/13, § 21, 24 July 2014 ).",
"73. Indeed, the Court has already relied on video evidence, not only in other contexts ( see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § § 10, 91 and 176, ECHR 2000- VIII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, § § 9, 139 and 185, ECHR 2011 (extracts); and Sargsyan v. Azerbaijan [GC], no. 40167/06, § § 11, 56, 61, 70 and 133, ECHR 2015 ), but also specifically with a view to establishing the conditions of detention of minor migrants (see Mahmundi and Others v. Greece, no. 14902/10, § § 60 and 64, 31 July 2012 ). It has even asked respondent Governments to provide video evidence in cases concerning conditions of detention (see Alimov v. Turkey, no. 14344/13, § 76, 6 September 2016 ), and has drawn inferences from their failure to do so (see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § § 172 and 175, 1 July 2010) or from the applicants ’ failure to rebut photographic evidence submitted by the respondent Government in cases relating to conditions of immigration detention (see Tehrani and Others v. Turkey, nos. 32940/08 and 2 others, § 89, 13 April 2010, and Erkenov v. Turkey, no. 18152/11, § 38, 6 September 2016 ). It therefore finds that it can take into account the video evidence submitted by the applicants in this case.",
"74. As regards the reliability of that evidence, it should be noted that the two video files submitted by the applicants bore time stamps which dated from not long after the time of their detention in Bulgaria (see paragraph 16 above). In view of the applicants ’ explanations on that point ( see paragraph 17 above ), and since it is well known that electronic files can be automatically re-dated when copied from one device to another, the Court finds that the time stamps on the two video files do not throw doubt on their authenticity. The footage is, for its part, sufficiently clear, and there are no signs that it has been manipulated. Indeed, the Bulgarian authorities confirmed that the people featuring on it were the applicants ( see paragraph 18 above ). It is true that there are no elements in the video – such as text written in Cyrillic or words spoken in Bulgarian – which could enable the Court positively to ascertain that it was recorded inside the border police ’ s detention facility in Vidin where the applicants were held. At the same time, there are no elements which suggest otherwise. In these circumstances, the mere expression of misapprehensions by the Government on that point cannot cause the Court to doubt that the video depicts, as asserted by the applicants, that facility. Although it was open to the Government to submit visual material – such as photographs or a video recording of the premises where the applicants had been kept according to official records – or other evidence casting doubt in that respect, they did not back their assertions with such evidence ( see paragraph 19 above ). According to the Court ’ s case-law, when applicants produce prima facie credible accounts or evidence that the conditions in which they were detained were inhuman or degrading, it is for the respondent Government to come up with explanations or evidence which can cast doubt in that respect, failing which the Court may find the applicants ’ allegations proven (see, among other authorities, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § § 122 -23, 10 January 2012 ).",
"75. The Court will therefore take into account the video submitted by the applicants in establishing the conditions of their detention.",
"2. Examination of the merits of the complaint",
"(a) The parties ’ submissions",
"76. The Government submitted that neither the conditions in the border police ’ s detention facility in Vidin nor the manner in which the applicants had been provided there with food and drink had been in breach of Article 3 of the Convention, especially in view of the presence of both their parents and the limited amount of time which they had spent there – especially the fifth applicant, who had been out of the facility for several hours when taken to a hospital in Vidin on 18 August 2015. There was no requirement under Bulgarian law to detain minor migrants in specially adapted facilities.",
"77. The applicants maintained their allegations regarding the conditions in the border police ’ s detention facility in Vidin, and submitted that they matched the findings of a number of monitoring reports about the conditions in which migrants were being detained in Bulgaria. They pointed out that owing to such problems some States had in the past refused to send asylum ‑ seekers back to Bulgaria under the Dublin Regulations.",
"(b) The Court ’ s assessment",
"( i ) Relevant principles and case-law",
"78. The general principles applicable to the treatment of people held in immigration detention were recently set out in detail in Khlaifia and Others v. Italy ( [GC], no. 16483/12, § § 158-67, ECHR 2016 (extracts) ), and there is no need to repeat them here.",
"79. It should, however, be noted that the immigration detention of minors, whether accompanied or not, raises particular issues in that regard, since, as recognised by the Court, children, whether accompanied or not, are extremely vulnerable and have specific needs ( see, as a recent authority, Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, § 103, 22 November 2016 ). Indeed, the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant. Article 22 § 1 of the 1989 Convention on the Rights of the Child (1577 UNTS 3) encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). In recent years, the Court has in several cases examined the conditions in which accompanied minors had been kept in immigration detention.",
"80. The applicants in Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010) had been respectively seven months, three and a half years, five years and seven years old, and had been detained for one month. Noting their age, the length of their detention, the fact that the detention facility had not been adapted for minors, and the medical evidence that they had undergone serious psychological problems while in custody, the Court found a breach of Article 3 (ibid., §§ 57-63).",
"81. The applicants in Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011) had been respectively thirteen, eleven, and eight years old, and had been detained for about four months. The Court noted that they had been older than those in the above-mentioned case and that there was no medical evidence of mental distress having been experienced by them in custody. Even so, noting that ( a ) the detention facility had not been adapted to minors, ( b ) the applicants had been particularly vulnerable owing to the fact that before arriving in Belgium, they had been separated from their father on account of his arrest in Sri Lanka and had fled the civil war there, ( c ) their mother, although with them in the facility, had been unable to take proper care of them, and ( d ) their detention had lasted a much longer period of time than that in the case of Muskhadzhiyeva and Others ( cited above ), the Court found a breach of Article 3 (ibid., §§ 64-69 ).",
"82. The applicants in Popov v. France ( nos. 39472/07 and 39474/07, 19 January 2012 ) had been respectively five months and three years old, and had been detained for fifteen days. Although designated for receiving families, the detention facility had been, according to several reports and domestic judicial decisions, not properly suited for that purpose, both in terms of material conditions and in terms of the lack of privacy and the hostile psychological environment prevailing there. That led the Court to find that, ( a ) despite the lack of medical evidence to that effect, the applicants, who had been very young, had suffered stress and anxiety, and that (b ) in spite of the relatively short period of detention, there had been a breach of Article 3 (ibid., §§ 92-103).",
"83. The applicants in five recent cases against France – R.M. and Others v. France (no. 33201/11, 12 July 2016), A.B. and Others v. France ( no. 11593/12, 12 July 2016), A.M. and Others v. France ( no. 24587/12, 12 July 2016), R.K. and Others v. France ( no. 68264/14, 12 July 2016) and R.C. and V.C. v. France ( no. 76491/14, 12 July 2016) – had been between four months and four years old, and had been detained for periods ranging between seven and eighteen days. The Court noted that unlike the detention facility at issue in Popov (cited above), the material conditions in the two detention facilities concerned in those five cases had not been problematic. They had been adapted for families that had been kept apart from other detainees and provided with specially fitted rooms and child- care materials. However, one of the facilities had been situated right next to the runways of an airport, and so had exposed the applicants to particularly high noise levels. In the other facility, the internal yard had been separated from the zone for male detainees by only a net, and the noise levels had also been significant. That had affected the children considerably. Another source of anxiety had been the constraints inherent in a place of detention and the conditions in which the facilities had been organised. Although over a short period of time those factors had not been sufficient to attain the threshold of severity engaging Article 3 of the Convention, over a longer period their effects would necessarily have affected a young child to the point of exceeding that threshold. Since the periods of detention had been, in the Court ’ s view, long enough in all five cases, it found breaches of Article 3 in each of them (see R.M. and Others v. France, § § 72 -76; A.B. and Others v. France, § § 11 1 -15; A.M. and Others v. France, § § 4 8 -53; R.K. and Others v. France, § § 68 -72; and R.C. and V.C. v. France, § § 36 -40, all cited above ).",
"(ii) Application in this case",
"84. In this case, the period under consideration was, according to the Government ’ s calculations, about thirty-two hours. According to the applicants ’ calculations, it was about forty-one hours (see paragraphs 11 and 29 above). Whichever of the two versions is taken as correct, it is clear that this amount of time was considerably shorter than the periods at issue in the cases mentioned in the previous paragraphs. However, the conditions in the border police ’ s detention facility in Vidin, as described by the applicants ( without being contradicted by the Government ), and as revealed by the video submitted by them, were considerably worse than those in all those cases. The cell in which the applicants were kept, though relatively well ventilated and lit, was extremely run-down, with paint peeling off the walls and ceiling, dirty and worn out bunk beds, mattresses and bed linen, and litter and damp cardboard on the floor (see paragraph 15 above). It can hardly be said that those were suitable conditions in which to keep a sixteen-year old, an eleven- year old, and especially a one-and-a-half-year old, even for such a short period of time.",
"85. To this should be added the limited possibilities for accessing the toilet, which – as asserted by the applicants and as revealed by the video which they submitted (see paragraphs 15, 20, 24 and 27 above) – forced them to urinate onto the floor of the cell in which they were kept. Since the Government did not dispute that assertion or submit any evidence to disprove it, it must be regarded as proven.",
"86. The Court has many times held, in relation to prisons and pre-trial detention facilities, that subjecting a detainee to the humiliation of having to relieve himself or herself in a bucket in the presence of other inmates can have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk (see the cases cited in Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 211, ECHR 2014 (extracts) ). That must be seen as equally, if not more, applicable to detained minor migrants.",
"87. The final element to be taken into account is the authorities ’ alleged failure to provide the applicants with food and drink for more than twenty ‑ four hours after taking them into custody (see paragraphs 20, 25 and 26 above, and see, also as regards the adequate provision of food to people in detention, Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Korneykova and Korneykov v. Ukraine, no. 56660/12, § 141, 24 March 2016). The applicants ’ allegations in that respect must likewise be seen as proven, given that the Government only stated that they had been provided with quantities of food amounting to the prescribed daily rations, without commenting on the specific allegations about the serious delay in the provision of food and the manner in which it had in fact been provided ( see paragraph 26 above ).",
"88. Nor did the Government dispute the allegation that the second applicant had only been given access to the baby bottle and the milk of the toddler (the fifth applicant) about nineteen hours after they had been taken into custody (see paragraph 23 above). The small shoulder bag which can be seen in the video submitted by the applicants (see paragraph 15 above) does not appear to contain such items. In any event, a facility in which a one ‑ and ‑ a-half-year-old child is kept in custody, even for a brief period of time, must be suitably equipped for that purpose, which does not appear to have been the case with the border police ’ s detention facility in Vidin.",
"89. The combination of the above-mentioned factors must have affected considerably the third, fourth and fifth applicants, both physically and psychologically, and must have had particularly nefarious effects on the fifth applicant in view of his very young age. Those effects were hardly offset by the few hours that he spent in the hospital in Vidin in the afternoon and evening of 18 August 2015 ( see paragraph 25 above ).",
"90. By keeping those three applicants in such conditions, even for a brief period of time, the Bulgarian authorities subjected them to inhuman and degrading treatment.",
"91. It is true that in recent years the High Contracting States that sit on the European Union ’ s external borders have had difficulties in coping with the massive influx of migrants (see M.S.S. v. Belgium and Greece, cited above, § 223). But a perusal of the relevant statistics shows that although the numbers are not negligible, in recent years Bulgaria has by no means been the worst affected country ( see paragraphs 8 and 39 - 41 above ). Indeed, the number of third-country nationals found illegally present on its territory in the course of 2015 was about twenty times lower than in Greece and about forty-four times lower than in Hungary (ibid.). It cannot therefore be said that at the relevant time Bulgaria was facing an emergency of such proportions that it was practically impossible for its authorities to ensure minimally decent conditions in the short-term holding facilities in which they decided to place minor migrants immediately after their interception and arrest (contrast, mutatis mutandis, Khlaifia and Others, cited above, §§ 178-83).",
"92. In any event, in view of the absolute character of Article 3 of the Convention, an increasing influx of migrants cannot absolve a High Contracting State of its obligations under that provision, which requires that people deprived of their liberty be guaranteed conditions compatible with respect for their human dignity. A situation of extreme difficulty confronting the authorities is, however, one of the factors in the assessment whether or not there has been a breach of that Article in relation to the conditions in which such people are kept in custody ( ibid., §§ 184-85 ).",
"93. In view of the above considerations, the Court concludes that there has been a breach of Article 3 of the Convention with respect to the third, fourth and fifth applicants.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"94. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"95. The applicants claimed 12,000 euros (EUR) in respect of the distress and humiliation which they had endured as a result of the conditions in which the third, fourth and fifth applicants had been detained. They submitted that those feelings had been exacerbated by their extreme vulnerability at the time.",
"96. The Government submitted that the claim was exorbitant and surpassed by several times the awards made in previous similar cases in respect of Bulgaria. In their view, the finding of a breach would constitute sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants.",
"97. The Court finds that the third, fourth and fifth applicants must have suffered non-pecuniary damage as a result of the inhuman and degrading conditions in which they were kept in the border police ’ s detention facility in Vidin. Ruling in equity, as required under Article 41 of the Convention, it awards each of them EUR 6 00, plus any tax that may be chargeable on those sums.",
"B. Costs and expenses",
"98. The applicants sought EUR 2,731 (the equivalent, according to them, of 2,995 Swiss francs (CHF) ) in respect of the fees of their representative and those of an interpreter from Arabic into French. They explained that the interpreter, who had facilitated their communication with their representative, was employed by the SAJE on a monthly salary; that was why his services had not been billed separately. In support of their claim, the applicants submitted a bill of costs drawn up by their representative. According to that bill the representative had worked a total of twelve and a half hours on the case, at the hourly rate of CHF 200, and the interpreter had worked three hours on the case, at the hourly rate of CHF 65.",
"99. The Government submitted that the sum claimed in respect of the work done by the applicants ’ representative was exorbitant, and noted that the applicants had not claimed the reimbursement of other expenses.",
"100. According to the Court ’ s case-law, applicants are entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to these principles and the materials in its possession, in this case the Court awards jointly to all applicants a total of EUR 1,000, plus any tax that may be chargeable to them, in respect of all heads of costs.",
"C. Default interest",
"101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
7 | R.R. and Others v. Hungary | 2 March 2021 | This case concerned the confinement of an asylum-seeking family, including three minor children, in the Röszke transit zone on the border with Serbia in April-August 2017. The applicants complained, in particular, of the fact of and the conditions of their detention in the transit zone, of the lack of a legal remedy to complain of the conditions of detention, and of the lack of judicial review of their detention. | The Court found that the applicants’ stay in the transit zone had amounted to a de facto deprivation of liberty. It considered that without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law, the applicants’ detention could not be considered to have been lawful. Accordingly, it concluded that in the present case there had been no strictly defined statutory basis for the applicants’ detention and that there had thus been a violation of Article 5 § 1 (right to liberty and security) of the Convention. In the absence of any formal decision of the authorities and any proceedings by which the lawfulness of the applicant’s detention could have been decided speedily by a court, the Court also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. Lastly, in view, in particular, of the applicant children’s young age, the applicant mother’s pregnancy and health situation and the length of the applicants’ stay in the conditions in the transit zone, the Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. | Accompanied migrant minors in detention | Deprivation of liberty and challenging the lawfulness of detention | [
"2. The applicants are an Iranian-Afghan family of five. Their details are set out in the appendix. They were represented before the Court by Ms B. Pohárnok, a lawyer practising in Budapest.",
"3. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"The applicants ’ background and their travel to Hungary",
"5. S.H. (“the applicant mother”) claims that she was a victim of torture in Afghanistan; she was allegedly captured, burned and raped by the Taliban, who killed her first husband. On an unknown date between 2012 and 2014 she fled Afghanistan to Iran together with her two daughters from her first marriage, M.H. and R.H. She met R.R. (“the first applicant”) there, and entered into a religious marriage with him.",
"6. R.R., S.H. and her two children left Iran in the beginning of 2016, allegedly escaping reprisals because R.R. had deserted the Iranian army. Having left Iran, they travelled together through Turkey to Greece, where they were separated. R.R. made it to Austria, but allegedly decided to join his family, who were returned to Greece after being arrested in North Macedonia. On 11 March 2016 R.R. was apprehended at Sopron railway station in Hungary. He applied for asylum. On 21 March 2016 he withdrew his asylum application and the asylum proceedings were terminated. Pending enforcement of his expulsion to Iran, the first applicant was held in immigrant detention, where he submitted his second asylum application. On 3 August 2016 he left for an unknown destination and the asylum proceedings were terminated.",
"7. Subsequently, the applicant family were reunited in Serbia. They spent several months in different camps around the country. On 16 October 2016 A.R., the first biological child of R.R. and S.H., was born.",
"8. On 19 April 2017 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, which is situated on Hungarian territory at the border between the two countries. They applied for asylum on the same date.",
"9. On 19 April 2017 the Office for Immigration and Asylum (hereinafter “the IAO”) issued a ruling ordering that the applicants be accommodated in the Röszke transit zone under section 80/J(5) of the Asylum Act (see paragraph 24 below).",
"The applicants ’ stay in the transit zone",
"10. Since 2015 the two transit zones located at the border with Serbia have been significantly enlarged (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 15, 21 November 2019). According to data collected by the Government in July 2017, at the time in question the Röszke transit zone had an official capacity of 460 places and was accommodating 291 foreign nationals. The sections of the transit zone were rectangular in shape, with accommodation “containers” placed adjacent to each other on three sides and a wire mesh fence on the fourth. There was razor wire on the roofs of the containers. People staying in one section could only go to other parts of the zone to see a doctor, a lawyer or IAO staff, and were always escorted by guards.",
"11. The applicants initially stayed in the section of the Röszke transit zone designated for families. They were placed together in a 13 ‑ square ‑ metre living container, which had three bunk beds without child safety rails and five lockable cabinets. According to the Government, a cot bed was provided to families with small children. According to the applicants, the containers were extremely hot in summer and without air conditioning; for ventilation they had to open the window and door, which made the room draughty and allowed insects in. An awning over the front door (to offer shade) and fans were provided in August 2017.",
"12. In the middle of the family section there was a communal courtyard with a small playground for children, ping-pong table, badminton net, basketball court and goals for football. According to the applicants, there was no shade or greenery in the outdoor area. The section also had a playroom, study room, room for religious worship and common room equipped with a television. The NGOs working within the zone organised activities for children, such as drawing and crafts, once or twice a week for one to two hours. From September 2017 an education programme for children in the transit zone was provided.",
"13. On 29 June 2017 the applicants were moved to an isolation section within the transit zone because the applicant mother and children had hepatitis B. The isolation section consisted of approximately ten mobile containers placed in a row and a narrow (approximately 2.5 metres wide and 40 to 50 metres long) open-air area surrounded by fencing. Their living container, which was equipped with air conditioning, was furnished with one bunk bed, two single beds (no cot bed for A.R.) and a chest of drawers. There was no refrigerator, microwave or washing machine in the section. The applicants were given sand for the children to play with. There was no playground and no activities were organised for the children in the isolation section. The applicants had access to a television in the common area container and a ping-pong table.",
"14. The police regularly carried out morning (6 a.m.) checks – headcounts. The applicants submitted that the police officers/guards had often raided their living containers to perform security checks.",
"15. Free wireless Internet was available in the transit zone. According to the applicants, the connection was poor and could only be used for messaging.",
"16. According to the Government, children were, in addition to the three meals provided to adult asylum-seekers, provided with two snacks each per day. Like pregnant women, they were also entitled to dairy products and fruit. Children under the age of one were provided infant nutrition and baby food. The applicants submitted that the children had been given chocolate bars for snacks and that fruit had only been provided occasionally. They submitted that the food provided to the children had been inadequate for their age.",
"17. Upon their arrival at the transit zone, families were provided with a sanitary package, including essential baby hygiene products such as disposable nappies. An additional monthly sanitary package was provided to asylum-seekers and, in justified cases, additional items were provided on request. According to the Government, clothing was provided to asylum ‑ seekers who did not have appropriate clothing for the season. The applicants submitted that the applicant mother had not been provided with maternity clothes, so she had had to sew a dress for herself using bed linen.",
"18. The applicants received medical treatment on several occasions during their stay in the transit zone. The Government submitted that asylum-seekers were entitled to basic and emergency medical care, including specialist medical treatment, according to their needs. If justified by their health condition, the resident medical staff could transfer them to hospitals or clinics to obtain urgent or specialist care. On 24 April 2017 the applicant mother was examined by a gynaecologist of a Szeged hospital. On 25 April 2017 she was referred to the emergency department of the hospital because of sickness. On 28 April 2017 she was taken to the hospital to have her pregnancy determined. She underwent blood and laboratory tests in relation to her hepatitis B and was prescribed medication for a urinary tract infection. On the same date she was taken to the emergency department of the hospital because of vomiting and cramps. She spent the night there. On 26 May 2017 she attended a prenatal check ‑ up in the hospital and was found to have a high-risk pregnancy. On 13 and 14 June 2017 she was taken to the hospital and prescribed medication for epigastric (abdominal) pain. On 3 July 2017 she had another check-up in the hospital and a consultation took place in relation to her hepatitis B. On 9 August 2017 she attended an ultrasound appointment and was taken to the emergency department of the hospital. She was recommended a high fluid intake and adequate nutrition (fruit), and was prescribed medication for anaemia. Following the family ’ s release from the transit zone, the applicant mother attended two more medical check-ups. On 24 April and 6 July 2017 the two eldest applicant children were taken to the paediatrics department of the hospital in Szeged. Their hepatitis B was confirmed following blood tests taken during their second visit to the hospital and the doctor suggested a further examination at the hepatology department. On 29 June 2017 the eldest applicant child, M.H., was examined at the ear, nose and throat department of the hospital in Szeged because of frequent nosebleeds. On 16 August 2017 she was taken to the emergency department of a hospital in Győr by ambulance and was subsequently treated at the ear, nose and throat department. The applicants submitted that, although requested, the youngest applicant child had not been given the vaccines recommended at six months. It appears from the case file that she had received some vaccines in Serbia and that the next vaccination appointment was scheduled for 8 April 2017.",
"19. The applicants submitted that no interpreter had been present in the course of S.H. ’ s medical examinations and that no anamnesis (medical history) could be collected from her due to the language constraints (she spoke only in her mother tongue). At her hospital visit of 9 August 2017 a “heteroanamnesis” was taken by questioning an interpreter using English and Dari at the doctor ’ s request. The applicants also submitted that they had always been taken to the hospital in an unsuitable police van and escorted by armed police officers, who had remained present during the medical examinations. In particular, (male) armed police officers had been present (standing by her side) during the second applicant ’ s gynaecological examination.",
"20. As regards psychological assistance in the transit zone, the applicants submitted that there had been no assistance for traumatised asylum-seekers. They drew the Court ’ s attention to their lawyer ’ s submissions in the asylum procedure of 26 and 27 July 2017. With respect to the applicant mother, the lawyer submitted, inter alia, that she had been subjected to serious ill-treatment in Afghanistan, the consequences of which she was still suffering, and that she was in need of specialist treatment. In this connection, the lawyer also submitted that, given her mental health problems, the applicant mother had been under psychiatric treatment (medication and psychotherapy) during her stay in Serbia and requested that she be examined by a psychiatrist. In their application form, the applicants submitted that S.H. had had to stop taking that medication because of her pregnancy. The Government submitted that during the period in question the Hungarian Calvinist Charity Service and specialists from Sirius Help had provided psychosocial assistance in the transit zone, the latter specifically for children. On 24 August 2017, at the request of the applicants ’ lawyer for the purposes of their legal (asylum) procedures, the applicant mother was examined by a psychiatrist, who diagnosed her with major depressive disorder and post-traumatic stress disorder (“PTSD”). The psychiatrist recommended that the applicant mother undergo medical, psychiatric and psychotherapeutic treatment, as otherwise suicidal urges and impulsive reactions were likely to occur. On the same date the two eldest applicant children were examined, at their lawyer ’ s request, by a psychologist, who observed that they showed signs of PTSD related to their experience in the transit zone and opined that psychological support should be made available to them.",
"21. As R.R. had already applied for asylum in Hungary before entering the transit zone with his family (see paragraph 6 above), he was considered by the IAO not to be entitled to material reception conditions under the Asylum Act (see paragraph 24 below). He was assigned accommodation together with his family but was not given free meals. The hot meals provided to the other applicants could not be taken out of the canteen where they ate their lunch. The applicants submitted that the NGO Sirius Help, which had operated in the zone until the end of May 2017, had twice organised food shopping for R.R. from outside at the beginning of his stay. He had initially been able to get food by paying other asylum-seekers, who had bought the food in Serbia and delivered it to him upon their arrival at the zone. According to the applicants, such arrangements were difficult to achieve and R.R. was forced to eat his family ’ s leftovers, beg other asylum ‑ seekers for food and search for edible things in the rubbish bins. He could only recall two occasions when Charity Council organisations and the Hungarian Red Cross had provided him with non-perishable food packages. According to the Government, the other applicants were distributed sufficient amounts of long-life food which they could share with R.R. They also submitted that R.R. had several times bought food with the assistance of social workers and that members of the Charity Council had taken care of his needs, in terms of food, toiletries and clothing. According to the Government, R.R. refused to accept food several times, stating that the family had sufficient supplies. On 31 July 2017 the IAO sent an email to the applicants ’ lawyer noting, in particular, that under the applicable Hungarian law the applicants were not entitled to food in the transit zone; they had the possibility to buy food for themselves, which they had done on multiple occasions, and charity organisations were handing out food. The IAO further noted that it did not appear that the first applicant had lost any weight during his stay in the zone.",
"examination of the applicants ’ asylum APPLICATION",
"22. The applicants were represented by a lawyer of their choice in the asylum proceedings. The adult applicants were heard by the IAO on 19 April 2017 (both), on 8 June 2017 (only S.H.) and on 10 May and 6 June 2017 (only R.R.). In the course of the asylum proceedings, the IAO, inter alia, requested an expert opinion on their marriage certificate, which was delivered on 3 July 2017. On 20 June 2017 the IAO also requested a DNA test to verify that R.R. was the father of S.H. ’ s third child. The results of the test, which confirmed his paternity, were received on 14 August 2017.",
"23. On 15 August 2017 the applicants were granted leave to enter and temporarily stay in the territory of Hungary (admitted alien status, befogadott ). They were accommodated in the Vámosszabadi Reception Centre the same day. The IAO however refused to recognise them as refugees or persons in need of subsidiary protection. The applicants requested a judicial review of the part of the decision rejecting their applications. Subsequently, on 23 August 2017 the IAO issued a ruling withdrawing the decision on the merits. On 8 September 2017 it issued a new decision on the merits, recognising the applicants as persons in need of subsidiary protection. In the meantime, on 25 August 2017 the applicants left for Germany, where they were later granted international protection."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"Domestic Law",
"24. The relevant provisions of Act no. LXXX of 2007 on Asylum (“the Asylum Act”) are outlined in the case of Ilias and Ahmed (cited above, §§ 41 and 45). For the purposes of the Asylum Act, persons deserving special treatment include vulnerable persons, in particular minors and pregnant women, who have been found to have special needs after an individual evaluation (section 2k)). According to section 4 of the Act, the best interests and rights of the child shall be a primary consideration when implementing the provisions. Moreover, provisions of the Asylum Act must be applied to persons requiring special treatment with due consideration of the specific needs arising from their situation (section 4(3)). When a crisis situation caused by mass immigration is declared, section 80/J of the Asylum Act, as amended on 28 March 2017, applies and provides as follows:",
"“(1) Asylum applications can be submitted in person to the asylum authority, only in the transit zone...",
"...",
"(4) In the proceedings the person seeking recognition is not entitled to the entitlements set forth in subsections a) and c) of section 5(1).",
"(5) For the time until a decision against which no further remedy lies or an order on a transfer under the Dublin procedure becomes enforceable, the territory of the transit zone shall be designated by the asylum authority as place of residence. Persons seeking recognition may leave the territory of the transit zone through the exit gate.",
"...”",
"The provisions of the Asylum Act regulating border procedure, including section 71/A, which limits border procedure and stay in the transit zone to four weeks, do not apply. If a person seeking recognition submits another asylum application following the adoption of a final decision rejecting or terminating his or her earlier application, he or she is not entitled to care, assistance and accommodation (section 80/K(11)).",
"25. All asylum applications submitted in the transit zones are processed either in an accelerated or standard procedure, depending on the circumstances of each case. Under the standard procedure, a decision on an asylum application must be taken by the IAO within sixty days; if the accelerated procedure is applied or if an application is to be declared inadmissible, the IAO must take a decision within fifteen days. Unless refugee status was granted, the decision of the IAO can be appealed against to a court. If the initial decision was taken in the standard asylum procedure, the court has sixty days to decide the appeal; if an appeal was lodged against a decision taken in the accelerated procedure, or in the event that the asylum application was rejected as inadmissible, the court decision must be taken within eight days.",
"European Union Law and practice",
"26. The relevant provisions of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”) are outlined in the case of Ilias and Ahmed (cited above, §§ 47-55).",
"27. The relevant provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”) provide as follows:",
"CHAPTER II",
"GENERAL PROVISIONS ON RECEPTION CONDITIONS",
"Article 8",
"Detention",
"“1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.",
"2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.",
"3. An applicant may be detained only:",
"(a) in order to determine or verify his or her identity or nationality;",
"(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;",
"(c) in order to decide, in the context of a procedure, on the applicant ’ s right to enter the territory;",
"(d) when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (9), in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;",
"(e) when protection of national security or public order so requires;",
"(f) in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person (10).",
"The grounds for detention shall be laid down in national law.",
"...”",
"Article 11",
"Detention of vulnerable persons and of applicants with special reception needs",
"“1. The health, including mental health, of applicants in detention who are vulnerable persons shall be of primary concern to national authorities.",
"Where vulnerable persons are detained, Member States shall ensure regular monitoring and adequate support taking into account their particular situation, including their health.",
"2. Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.",
"The minor ’ s best interests, as prescribed in Article 23(2), shall be a primary consideration for Member States.",
"Where minors are detained, they shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age.",
"...",
"4. Detained families shall be provided with separate accommodation guaranteeing adequate privacy.",
"...",
"6. In duly justified cases and for a reasonable period that shall be as short as possible Member States may derogate from the third subparagraph of paragraph 2, paragraph 4 and the first subparagraph of paragraph 5, when the applicant is detained at a border post or in a transit zone, with the exception of the cases referred to in Article 43 of Directive 2013/32/EU.”",
"Article 17",
"General rules on material reception conditions and health care",
"“1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection.",
"2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. Member States shall ensure that that standard of living is met in the specific situation of vulnerable persons, in accordance with Article 21, as well as in relation to the situation of persons who are in detention.",
"3. Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.",
"4. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time... .”",
"Article 19",
"Health care",
"“1. Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.",
"2. Member States shall provide necessary medical or other assistance to applicants who have special reception needs, including appropriate mental health care where needed.”",
"CHAPTER III",
"REDUCTION OR WITHDRAWAL OF MATERIAL RECEPTION CONDITIONS",
"Article 20",
"Reduction or withdrawal of material reception conditions",
"“1. Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant:",
"...",
"(c) has lodged a subsequent application as defined in Article 2(q) of Directive 2013/32/EU.",
"...",
"5. Decisions for reduction or withdrawal of material reception conditions or sanctions referred to in paragraphs 1, 2, 3 and 4 of this Article shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 21, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to health care in accordance with Article 19 and shall ensure a dignified standard of living for all applicants.",
"6. Member States shall ensure that material reception conditions are not withdrawn or reduced before a decision is taken in accordance with paragraph 5.”",
"CHAPTER IV",
"PROVISIONS FOR VULNERABLE PERSONS",
"Article 21",
"General principle",
"“Member States shall take into account the specific situation of vulnerable persons such as minors ... pregnant women ... victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation, in the national law implementing this Directive.”",
"Article 22",
"Assessment of the special reception needs of vulnerable persons",
"“1. In order to effectively implement Article 21, Member States shall assess whether the applicant is an applicant with special reception needs. Member States shall also indicate the nature of such needs.",
"That assessment shall be initiated within a reasonable period of time after an application for international protection is made and may be integrated into existing national procedures. Member States shall ensure that those special reception needs are also addressed, in accordance with the provisions of this Directive, if they become apparent at a later stage in the asylum procedure.",
"Member States shall ensure that the support provided to applicants with special reception needs in accordance with this Directive takes into account their special reception needs throughout the duration of the asylum procedure and shall provide for appropriate monitoring of their situation.",
"2. The assessment referred to in paragraph 1 need not take the form of an administrative procedure.",
"...”",
"Article 23",
"Minors",
"“1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor ’ s physical, mental, spiritual, moral and social development.",
"2. In assessing the best interests of the child, Member States shall in particular take due account of the following factors:",
"(a) family reunification possibilities;",
"(b) the minor ’ s well-being and social development, taking into particular consideration the minor ’ s background;",
"(c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;",
"(d) the views of the minor in accordance with his or her age and maturity.",
"3. Member States shall ensure that minors have access to leisure activities, including play and recreational activities appropriate to their age within the premises and accommodation centres referred to in Article 18(1)(a) and (b) and to open-air activities.",
"4. Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed.",
"...”",
"Article 25",
"Victims of torture and violence",
"“1. Member States shall ensure that persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts, in particular access to appropriate medical and psychological treatment or care.",
"...”",
"28. In its judgment of 14 May 2020 in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság (C-924/19 PPU and C-925/19 PPU) the Court of Justice of the European Union ruled inter alia that the conditions, in which asylum-seekers that had arrived in Hungary via Serbia had been kept in the Röszke transit zone, amounted to a deprivation of liberty:",
"“Directives 2008/115 and 2013/33 must be interpreted as meaning that the obligation imposed on a third-country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national ’ s movements are limited and monitored, and which he or she cannot legally leave voluntarily, in any direction whatsoever, appears to be a deprivation of liberty, characterised by ‘ detention ’ within the meaning of those directives.",
"...",
"Article 43(1) of Directive 2013/32 gives Member States the possibility to provide, at their borders or in their transit zones, for specific procedures in order to decide on the admissibility, under Article 33 of that directive, of an application for international protection made at such locations or on the substance of that application in one of the cases provided for in Article 31(8) of that directive, provided that those procedures comply with the basic principles and fundamental guarantees set out in Chapter II of that directive. Under Article 43(2) of Directive 2013/32, those specific procedures must be carried out within a reasonable time, it being understood that if a decision rejecting the application for international protection has not been taken within a period of four weeks, the Member State concerned must grant the applicant entry to its territory and the application must be dealt with after that four-week period in accordance with the normal procedure.",
"...",
"Article 43 of Directive 2013/32 must be interpreted as not authorising the detention of an applicant for international protection in a transit zone for a period of more than four weeks.”",
"International law",
"29. Article 22 of the Convention on the Rights of the Child of 20 November 1989 (ratified by Hungary on 7 October 1991) reads as follows:",
"Article 22",
"“1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.",
"2. For this purpose, States Parties shall provide, as they consider appropriate, co ‑ operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.”",
"Reports of visits by international bodies",
"30. The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“CPT”) from 20 to 26 October 2017 contains the following passages:",
"“...according to the information provided to the delegation by staff, the average length of stay in the transit zone was some 30 days.",
"...",
"The CPT notes the efforts made by the Hungarian authorities to provide decent material conditions for the accommodation of foreign nationals in the transit zones and to maintain the premises in a good state of repair and hygiene. The accommodation containers measured 13m² and were usually equipped with two bunk ‑ beds and a bed (fitted with clean mattresses, pillows and bedding) and five lockers. The containers had good access to natural light and artificial lighting, as well as to electric heating. In addition to the accommodation containers, in each caged section, there were containers which served as an office for social workers, a dining room (equipped with chairs, tables and a washbasin, as well as with a fridge, an electric kettle and a microwave oven), a laundry room (with a washing machine and a tumble dryer) and separate communal sanitary facilities for men and women (with washbasins, toilets and showers).",
"...",
" T he overall design of the transit zones is far too carceral – rolls of razor blade wire were omnipresent, as were high wire-mesh fences which sometimes ran in several lines. ... Such an environment cannot be considered adequate for the accommodation of asylum-seekers, even less so where families and children are among them.",
"...",
"In addition, some complaints were heard in both transit zones that, during the summer, the containers had often become very hot as they had neither been properly insulated nor equipped with air-conditioning.",
"As regards activities, it is positive that all foreign nationals were able to move freely within their section and associate with other foreign nationals and had unrestricted access to an adjacent outdoor yard and an air-conditioned communal activity room (equipped with tables, chairs, a television set, board games, playing cards and a table tennis table, as well as some books and toys for children) and a prayer room.",
"In the middle of each accommodation section, there was a gravel outdoor yard equipped with tables, chairs/benches and parasols, and, in several of these yards, foreign nationals could play basketball and volleyball. ...",
"Further, apart from the cloth parasols, the yards had no proper shelter against inclement weather.",
"In both transit zones, some organised activities were offered to adult foreign nationals (such as group discussions, Hungarian language classes, board games/chess). However, many complaints were received from the foreign nationals, in particular those who had been held there for longer periods, about a lack of activities.",
"Efforts were being made in both transit zones to provide children with organised activities. School classes (basic English, Hungarian, mathematics, “cultural matters”) were organised every working day (9 a.m. to 12 noon) by teachers attending from the outside community and there were some leisure activities (2 to 4 p.m.), mostly organised by various NGOs.",
"It is praiseworthy that, at Röszke, the outdoor yards of most accommodation sections for families with children comprised a playground for children (with slides, swings and a sandbox). ...",
"...",
"If, exceptionally, minors are held with their parents in a transit zone, their stay should be for the shortest possible period of time.",
"...",
"The living conditions in both transit zones are generally acceptable for holding foreign nationals for a limited period of time (i.e. up to several weeks). However, they are not adequate for holding foreign nationals for prolonged periods, in particular families with children.",
"...",
"As regards the specific health-care needs of children, the CPT welcomes the fact that a paediatrician attended both transit zones twice per week. That said, it is regrettable that no immunisation history was usually taken with regard to whether or not newly ‑ arrived children had been vaccinated, nor were any immunisations such as measles, chicken pox, mumps or rubella offered. In this regard, the Committee wishes to recall that the presence of children in transit zones increases the risk of transmission of contagious diseases common in children. Steps should be taken to review the provision of health care for children in both transit zones, in the light of the preceding remarks.",
"In both transit zones, the health-care staff included a doctor who was present on a rota basis on workdays, and a pool of part-time nurses (feldshers), two of whom were present around the clock, seven days a week. In addition, a military doctor was present for two hours per day seven days a week in both transit zones; he mainly carried out age assessments and provided emergency treatment. A paediatrician visited both of the transit zones twice a week.",
"...",
"In both transit zones, the delegation was informed that foreign nationals in need of specialist care were usually transferred to a local hospital (including, if necessary, for psychiatric and psychological consultations) and that a psychologist from the Hungarian Red Cross or a religious organisation occasionally carried out visits (focusing mainly on unaccompanied minors). Notwithstanding that, the provision of psychological and psychiatric care appeared to be insufficient.",
"...",
"During the end-of-visit talks, the Hungarian authorities informed the delegation that steps were being taken to recruit a psychologist on a part-time basis in each transit zone.",
"...",
"The CPT acknowledges the efforts made by the Hungarian authorities to facilitate in both transit zones foreign nationals ’ contact with the outside world. ...foreign nationals were allowed to keep their mobile phones. In addition, a Wifi Internet connection had been installed in both transit zones, in order to allow foreign nationals to communicate with relatives and friends outside Hungary free-of-charge, including through Voice-over-Internet-Protocol (VoIP) calls. However, the delegation received many complaints from foreign nationals (especially at Tompa) about the weakness of the Wifi signal and consequent frequent unavailability and/or disruption of communications. ...",
"In principle, foreign nationals could send/receive letters without any restrictions and were allowed to receive visits every day. However, given their situation, they were not usually in a position to make use of these possibilities. ...”",
"31. The report on the fact-finding mission of June 2017 of the Special Representative of the Secretary General of the Council of Europe on migration and refugees, Ambassador Tomáš Boček, concerning the Rӧszke transit zone (SG/Inf(2017)33) is summarised in the judgment of Ilias and Ahmed (cited above, § 67). As regards the conditions in the zone, the following observations are also relevant:",
"“2.2. Conditions",
"... There was razor blade wire on the roofs of the containers. In each section there was a small common courtyard, with a small playground for children. The persons who stayed in the section could get out only to visit the doctor or to have their interviews with the asylum authorities. Whenever they had to move outside the section, they were escorted by the guards of the transit zone. We were informed by the authorities that the guards are not equipped with weapons but only handcuffs.",
"...",
"The food was distributed by social workers three times per day in plastic bags. One hot meal per day was provided to asylum-seekers, including fruit, while two snacks and extra fruit were offered to children. Some unaccompanied children with whom we met complained that the food they received was not sufficient. We saw the Hungarian Charity Council providing food supplies in the transit zones.",
"...",
"Both transit zones had a doctor ’ s room located in a separate container, where asylum-seekers receive basic medical care. In the family sections, in addition to a small playground, there was a container where children could play with each other and engage in some basic leisure activities, such as drawing. However, there are no educational programmes, language learning programmes or curricula adapted to the particular needs and age of children in either transit zone and children cannot attend local schools.”",
"THE LAW",
"PRELIMINARY ISSUE",
"32. The Court notes that at the time when notice of the application was given to the Government, the “Subject matter of the case” provided as follows:",
"“The application concerns the confinement, in conditions which are allegedly inhuman, of an Iranian-Afghan family (the Iranian applicant, his Afghan wife who was six months pregnant at the material time, and three minor children of Afghan nationality) to the Röszke transit zone at the border of Hungary and Serbia since 19 April 2017, pending the examination of their asylum request.”",
"It further notes that the questions to the parties were formulated in the singular (“applicant”) owing to a clerical error.",
"33. In their observations, the Government raised this issue and argued that, although the application had been lodged by five applicants, only the first applicant ’ s complaints had been communicated to them. They therefore focused their observations on his case and covered the situation of the family only to the extent that it was relevant to his complaints. The applicants, in their reply, maintained that all five of them were the applicants in the present case, which was clear from the “Subject matter of the case”, as well as from the application form and the authority forms which they had forwarded to the Court in August 2017.",
"34. The Court notes that when the applicants lodged their application with the Court, they submitted a single application form with the first page of the form filled in only with respect to the first applicant. By contrast, in other parts of the application form, continuous reference was made to “applicants” in the plural, including each family member ’ s dates and places of birth and facts/complaints relevant to each of them. Furthermore, the “Subject matter of the case”, which was forwarded to the parties together with the above-mentioned questions and the application form, referred to the application as concerning “the confinement ... of an Iranian-Afghan family”. The Court also notes that the two Rule 39 requests submitted in the present case and the corresponding decisions indicating interim measures to the Government (see paragraphs 102 and 104 below) were made in respect of the whole family (five applicants).",
"35. While the Court regrets the clerical error on its part as regards the formulation of the questions to the parties, it considers that all the references to the applicants as a family of five in documents forwarded to the Government (see paragraph 34 above) made it sufficiently evident that the application was lodged by all five applicants and that it was communicated to the parties as such.",
"ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"36. The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"AdmissibilityThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"37. The Government argued that any discomfort allegedly suffered by the applicants in the transit zone did not attain the minimum level of severity prompting the applicability of Article 3 of the Convention. As regards the first applicant, they submitted that he had not been entitled to material conditions and that the arrangements in place in the transit zone had satisfied his basic needs. They invited the Court to declare this complaint inadmissible as incompatible ratione materiae with the Convention provisions or as manifestly ill-founded.",
"38. The applicants maintained that the reception conditions in the transit zone had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.",
"The Court ’ s assessment",
"39. The Court considers that the applicants ’ complaint under Article 3 of the Convention concerning their living conditions in the transit zone raises complex issues of law and fact, the determination of which requires an examination of the merits.",
"40. It follows that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"(a) The applicants",
"41. In the applicants ’ view, the substandard conditions of detention in the transit zone (as described in paragraphs 10 - 20 above) – given their specific circumstances as an asylum-seeking family with three minor children and a pregnant woman with serious health issues undergoing a protracted period of detention without a time-limit – had amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. They relied on the Court ’ s case-law regarding administrative detention of migrant children, emphasising children ’ s extreme vulnerability and their specific needs related to their age, lack of independence and status.",
"42. As regards the first applicant, they further submitted that he had been denied reception conditions automatically, without a duly reasoned decision being delivered by the IAO or judicial remedies, in violation of the Reception Conditions Directive (see paragraph 27 above). He had been wholly dependent on the support of the State, which had therefore had an obligation to provide for basic needs, including food, and should not have placed the burden on him or the charities, leaving him totally deprived of food during his stay in the transit zone. He had been forced to take food from his family, beg others or search for leftovers in dustbins in order to survive, while the authorities had remained indifferent and had, moreover, failed to comply with the Court ’ s interim measure (see paragraph 104 below).",
"(b) The Government",
"43. The Government submitted that asylum-seekers in the transit zones were able to have their most basic needs met, in terms of food, hygiene and shelter, and that nobody was left in a state of the most extreme poverty or a situation of serious deprivation or want. The applicants had only been accommodated in the transit zone for a short period of time, while the authorities had acted with appropriate speed and due diligence, deciding whether the applicants should be granted leave to enter Hungary.",
"44. Moreover, they submitted that the applicants ’ vulnerable status had not called for any special treatment which could not be provided to them in the transit zone: material reception conditions were properly adapted to pregnant women and families with minor children. In particular, the applicant mother had been provided with adequate medical care, including prenatal medical care, of a quality at least equal to that available to Hungarian nationals within the Hungarian healthcare system. The children had been generally of good health and had been able to access (specialist) medical services whenever required. Even if the whole range of social services aimed at long-term integration, such as formal schooling for children, had not been fully provided, in their opinion this should not be deemed contrary to the standards of humane treatment.",
"45. As regards the first applicant, the Government maintained that the asylum authorities had been processing his third asylum application and that he had not been entitled to receive material reception conditions (see paragraph 27 above). Regardless of that fact, he had been assigned accommodation in the transit zone together with his family. Although he had not been provided with free food, he had not been left starving. His family members had been distributed a sufficient amount of long-life food which they could share with him. He could buy food with the assistance of social workers, which he had allegedly done several times. Moreover, charity organisations in the zone had regularly distributed food, which the applicant had refused to accept several times, stating that the family had sufficient supplies. He had also gone on hunger strike, so the resulting starvation and weight loss were not attributable to the Hungarian authorities.",
"Third-party intervener",
"46. The UNHCR addressed the domestic legislative framework and practice applicable to the treatment of asylum-seekers with specific needs held in the transit zone in Hungary and provided an interpretation of the relevant principles regarding the reception of asylum-seekers. It noted that asylum-seekers in the zone did not receive psychological and psychiatric treatment by qualified practitioners. At the relevant time, no maternity nurse had visited the transit zone, although this service was now provided in the zone.",
"47. The UNHCR submitted that subsequent/repeat asylum applicants held in the transit zone were allowed to receive food assistance in the form of cold food items (without fruits and vegetables) from authorised charity organisations, although such assistance was not delivered at all times or in every case.",
"The Court ’ s assessment",
"(a) General principles",
"48. According to the Court ’ s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. With regard to the confinement and living conditions of asylum-seekers, the Court summarised the relevant general principles in the case of Khlaifia and Others v. Italy ( [GC], no. 16483/12, §§ 158-69, 15 December 2016), and there is no need to repeat them here.",
"49. It should, however, be noted that the confinement of minors raises particular issues in that regard, since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum ‑ seeker status (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). Article 22 § 1 of the 1989 Convention on the Rights of the Child (1577 UNTS 3) encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (ibid). Likewise, the European Union directives regulating the detention of migrants adopt the position that minors, whether or not they are accompanied, constitute a vulnerable category requiring the special attention of the authorities (see paragraph 27 above). In recent years, the Court has in several cases examined whether or not the conditions in which accompanied minors had been kept in migrant detention centres were in compliance with Article 3 (see S.F. and Others v. Bulgaria, no. 8138/16, §§ 80-83, 7 December 2017, and the cases referred to therein). It has found a violation of Article 3 in particular on account of a combination of three factors: the child ’ s young age, the length of the detention and the unsuitability of the premises for the accommodation of children (see A.B. and Others v. France, no. 11593/12, § 109, 12 July 2016).",
"50. Finally, the Court reiterates that Article 3 cannot be interpreted as entailing any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 249, ECHR 2011). The Court nevertheless reiterates that State responsibility under Article 3 could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found him or herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity (see M.S.S. v. Belgium and Greece, cited above, §§ 253, and Budina v. Russia (dec.), no. 45603/05, 18 June 2009).",
"(b) Application to the present case",
"51. The Court has already analysed – in the case of Ilias and Ahmed ([GC], no. 47287/15, §§ 186-94, 21 November 2019) – the living conditions experienced by applicants as adult asylum-seekers in the Röszke transit zone. In that case, the Court – noting, in particular, the satisfactory material conditions in the zone, the relatively short length of the applicants ’ stay there (23 days), and the possibility for human contact with other asylum ‑ seekers, UNHCR representatives, NGOs and a lawyer – concluded that the conditions in which the applicants had spent twenty-three days in the Röszke transit zone did not reach the Article 3 threshold.",
"52. The Court considers that the living conditions in the transit zone, in terms of accommodation, hygiene and access to food and medical care, were generally acceptable for holding asylum-seekers for a limited period of time, as confirmed by the CPT in its 2017 Report (see paragraph 30 above). However, it finds that, unlike in the case of Ilias and Ahmed (cited above), who were both adult asylum-seekers whose basic needs were provided for by the Hungarian authorities, the applicants ’ situation was characterised by the first applicant ’ s repeat asylum-seeker status, the applicant children ’ s young age and the applicant mother ’ s pregnancy and serious health condition (compare and contrast Ilias and Ahmed, cited above, § 192). It further notes that the applicants ’ complaint as regards the living conditions experienced by them in the Röszke transit zone between 19 April and 15 August 2017 is twofold. The applicant children and the applicant mother complained that the conditions of their confinement had been inadequate in view of their vulnerabilities. The first applicant complained, in particular, that he had been deprived of food in the zone. Given the differences in the arguments advanced by the applicants, the Court finds it appropriate to examine their complaints separately.",
"(i) The first applicant",
"53. As regards the first applicant, the Court notes that, like the applicant in M.S.S. v. Belgium and Greece (cited above), the applicant in the present case was at the material time an asylum-seeker (compare and contrast Hunde, cited above, § 55). It observes that the situation in which he found himself was particularly serious. Even though he had a place to live and did not report any difficulties in accessing medical care, he allegedly spent almost four months living in a state of the most extreme poverty, unable to cater for one of his most basic needs – food (compare M.S.S. v. Belgium and Greece, cited above, § 254). The case file does not disclose exactly how often and what food the first applicant could access in the Röszke transit zone. It is however undisputed that the Hungarian authorities refused to provide him with free meals throughout his stay in the zone (see paragraph 24 above).",
"54. The Court observes that under the Reception Conditions Directive the authorities are in principle required to ensure that material reception conditions are provided to asylum-seekers (see paragraph 27 above). It takes note of the fact that at the relevant time the Hungarian authorities were processing the applicant ’ s third asylum application (see paragraph 6 above) and considered him to be a repeat asylum-seeker (see paragraphs 21 and 24 above). In this connection, the Court notes that Hungary was in principle allowed to decide to reduce or even withdraw material reception conditions from the first applicant as a repeat asylum ‑ seeker (Article 20(1)(c) of the Reception Conditions Directive, see paragraph 27 above). However, any such decision should in view of the obligations incumbent on the Hungarian authorities under the Directive have contained reasons for the withdrawal or reduction and should have taken into account the principle of proportionality (Article 20(5)). The Court was not informed of any such decision of the IAO concerning the withdrawal or reduction of material reception conditions, in particular food, in respect of the first applicant.",
"55. The Court takes note of the Government ’ s statements that (i) his family members had been distributed sufficient amounts of long-life food which they could share with him, (ii) he had been able to buy food with the assistance of social workers in the zone, and (iii) charity organisations had taken care of his essential needs, including food (see paragraph 45 above). The first applicant challenged their arguments, submitting that he had been forced to eat other asylum-seekers ’ leftovers and beg for food, while the other food arrangements mentioned by the Government had been difficult to achieve (see paragraph 42 above). The UNHCR in its third-party submissions confirmed that while repeat asylum applicants held in the transit zone were allowed to receive food assistance in the form of cold food items from certain charity organisations, such assistance was not always delivered (see paragraph 47 above). In this connection, while noting that essential needs of asylum-seekers in the transit zone may in fact be taken care of by NGOs, the Court is concerned by what seems to be a lack of any legal agreements or safeguards between the Government and the organisations allegedly supplying food assistance in the transit zone, which would ensure legal certainty of the current arrangements. Having regard to the general statements of the Government that the first applicant had had sufficient food supplies, without any information on the quality, frequency and manner in which the food had actually been provided to him, and the lack of documentation submitted in support of their arguments that the applicant had not been left starving, the Court considers that the applicant ’ s allegations concerning food availability in the transit zone must be regarded as sufficiently substantiated.",
"56. Moreover, the Court cannot ignore the fact that the applicant could only leave the transit zone in the direction of Serbia, and would have therefore forfeited the examination of his asylum claim in Hungary (see Ilias and Ahmed, cited above, § 247). It reiterates that while at the Röszke transit zone, he was fully dependent on the Hungarian authorities for his most basic human needs and was under their control (ibid., § 186).",
"57. Having regard to the above, the Court considers that the Government ’ s arguments (see paragraph 45 above) are unable to change the fact that the domestic authorities did not provide the first applicant with food during his four-months stay in the transit zone without duly assessing his circumstances and giving a reasoned decision in that regard. In short, they failed to have due regard to the state of dependency in which he lived there. The foregoing considerations are sufficient to enable the Court to conclude that, as a result of the failings of the Hungarian authorities in securing his basic subsistence in the transit zone, the first applicant found himself for several months in a situation incompatible with Article 3 of the Convention.",
"There has accordingly been a violation of this provision with respect to the first applicant.",
"(ii) The second applicant and the applicant children",
"58. The Court observes at the outset that under Chapter IV of the Reception Conditions Directive, the authorities were in principle obliged to take into account the specific situation of minors and pregnant women, both categories considered vulnerable by the Directive, as well as assess and monitor any special reception needs linked to their status throughout the duration of their asylum procedures (see paragraph 27 above). Moreover, minors and pregnant women who had been found to have special needs after an individual evaluation were eligible for preferential treatment under the Asylum Act ((section 2k) of the Act, see paragraph 24 above). The Court cannot substitute its own assessment of the applicants ’ condition under domestic law for that of the national authorities (see Ilias and Ahmed, cited above, § 150). It notes, however, that, in the present case, no individualised assessment of the special needs of the applicant children or the second applicant, all of whom were considered vulnerable under the European Union legislation, seems to have been carried out by the Hungarian authorities.",
"59. The Court further observes that the applicant children, who were seven months, six years and seven years old respectively, were accompanied by their parents throughout their stay in the Röszke transit zone. It finds, however, that this fact is not capable of exempting the Hungarian State from its duty to protect them and take adequate measures as part of its positive obligations under Article 3 of the Convention (see Muskhadzhiyeva and Others v. Belgium, no. 41442/07, §§ 57-8, 19 January 2010).",
"60. As regards the physical conditions of the applicants ’ stay in the transit zone, the Court observes that after their arrival on 19 April 2017, the applicants were assigned accommodation together as a family. They initially stayed in the section designated for receiving families only (see paragraph 11 above) and were later, namely on 29 June 2017, moved to the isolation section (see paragraph 13 above). The Court takes note of the fact that fans and awnings were only provided as of August 2017 (see paragraph 11 above). Even though the applicants had unrestricted access to the outdoor yard and an air-conditioned communal activity room (see paragraph 30 above), they were provided with an air-conditioned living container only in the isolation section (see paragraph 13 above). The Court is concerned by the applicants ’ allegation that they were made to suffer the heat in the family section ’ s accommodation container and that there was no proper ventilation (see paragraph 11 above). It reiterates that suffering from heat cannot be underestimated, as such conditions may affect one ’ s well-being and in extreme circumstances affect health (see Aden Ahmed v. Malta, no. 55352/12, § 94, 23 July 2013). Accordingly, this is a factor which cannot be ignored in the overall assessment of the conditions in the transit zone.",
"61. As regards the suitability of the facilities for children, the Court observes that the applicants ’ living containers in both sections contained basic furniture and childcare equipment. However, the Government did not submit any evidence to disprove the applicants ’ allegation that the beds had not been fit for use by children (see paragraph 11 above, and S.F. and Others v. Bulgaria, cited above, § 88). What is more, while the applicant children had access to facilities designated for playing and were able to participate in certain activities organised specifically for children in the family section, the situation changed once the family was moved to the isolation section – for a period of a month and a half no activities were organised and there was no playground accessible to the applicant children (see paragraph 13 above and Popov, cited above, §§ 95 and 102). The Court notes in this connection that, in the isolation section, the applicants, including the applicant children, had no contact with other asylum-seeking families or NGO representatives in the zone.",
"62. As regards the provision of medical services, the Court notes that the applicant children and mother received medical (including specialist) treatment on several occasions during their stay in the transit zone (see paragraph 18 above). It does not find it established that the arrangements in place in the zone, such as the system of medical referrals to the local hospital and the transportation arrangement (see paragraph 19 above), were such as to raise an issue under Article 3 of the Convention. As regards the lack of interpretation during the applicant mother ’ s medical examinations (see paragraph 19 above), the Court notes that the possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019). It further notes that at her hospital visit of 9 August 2017 interpretation was provided at the doctor ’ s request. Although at her other hospital visits an anamnesis could not be collected from her due to the language constraints, the Court does not find any evidence of this language barrier limiting her effective access to treatment that was normally available. What it finds disconcerting, however, is the lack of medical documentation with respect to the youngest applicant child and the applicants ’ undisputed allegation, confirmed also by the CPT report (see paragraph 30 above), that she had not been given the vaccines recommended at her age. It also accepts that outside medical treatment in the presence of (male) police officers, an allegation not disputed by the Government, must have caused a degree of discomfort to the applicants, particularly during the second applicant ’ s gynaecological examinations (see paragraph 19 above; see also Aden Ahmed, cited above, § 95).",
"63. Of further concern to the Court is the fact that at the material time there was no professional psychological assistance available for traumatised asylum-seekers in the transit zone. It takes note of the applicants ’ argument that the second applicant (the applicant mother) had had mental health problems for a long time because of trauma in Afghanistan and had been receiving help in Serbia, but had not received any psychological or psychiatric treatment in the transit zone. The Government did not explain why, in particular, the applicant mother, whose condition had been brought to the attention of the authorities, was not examined by a psychiatrist. The Court further finds, without having to rely on the medical certificate produced by the applicants (see paragraph 20 above), that the presence of elements resembling a prison environment even in the sections of the Röszke transit zone designated for families (see paragraph 30 above) and the constraints inherent during confinement, which are particularly arduous for a young child, must have caused the applicants ’ children anxiety and psychological disturbance. The situation must have also created degradation of the parental image in the eyes of the children (see, mutatis mutandis, A.B. and Others v. France, § 113, and Popov, § 101, both cited above). For example, the applicants, including the applicant children, were accompanied by guards when moving between the sections even if only for the purpose of medical appointments, and armed police officers if they had to leave the zone (see paragraph 19 above). In addition, they were constantly subjected to security checks (see paragraph 14 above).",
"64. Lastly, the Court takes note of the duration of the applicants ’ stay; they were held for three months and twenty-seven days at the Röszke transit zone. The CPT in its report raised the issue of families with children in the transit zone, noting that the living conditions there were not adequate for holding them for prolonged periods and that their stay should be for the shortest possible period of time (see paragraph 30 above). The Court is of the view that the above-mentioned conditions, depending on the circumstances of the case, may not attain the threshold of severity required to engage Article 3, where the confinement is of a short duration. It considers that, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (compare and contrast Ilias and Ahmed, cited above, § 193). It reiterates the primary significance of the passage of time for the application of this Article (compare A.B. and Others v. France, cited above, § 114).",
"65. Accordingly, in view of the applicant children ’ s young age, the applicant mother ’ s pregnancy and health situation and the length of the applicants ’ stay in the transit zone in the conditions set out above, the Court finds that the situation complained of subjected the applicant children and the applicant mother to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (compare and contrast Ilias and Ahmed, cited above, § 194).",
"There has therefore been a violation of that provision in respect of the applicant children and the applicant mother.",
"ALLEGED VIOLATION OF Article 13 in conjunction with Article 3 of the Convention",
"66. The applicants alleged that there had been no effective remedy at their disposal to complain about the living conditions in the transit zone. They also claimed that the denial of reception conditions in the first applicant ’ s case had been automatic, without any decision being made in that regard or remedies to challenge the denial. They relied on Article 13 read in conjunction with Article 3 of the Convention, which reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"67. The Government submitted that the applicants had no arguable claim under Article 3 of the Convention and that their Article 13 complaint should therefore be declared inadmissible ratione materiae. Alternatively, they argued that this complaint was manifestly ill-founded as the applicants had had several remedies available to them in respect of the material conditions in the transit zone; they could, in particular, have lodged a complaint with the asylum authority, a request to be transferred to another pre-entry accommodation facility and a civil-law action for violation of personality rights.",
"68. The Court has declared admissible the applicants ’ complaint under Article 3 in respect of the conditions of detention and found a violation of that provision (see paragraphs 57 and 65 above). The complaints in question were therefore “arguable” for the purposes of Article 13 of the Convention (see Khlaifia and Others, cited above, §§ 268 ‑ 69) and the complaint under Article 13 of the Convention must thus be declared admissible.",
"69. Having found a violation of Article 3 of the Convention (see paragraphs 57 and 65 and above), and in view of the fact that the alleged procedural shortcomings have been sufficiently examined under that Article (see paragraphs 54 and 58 above), the Court does not find it necessary to examine the complaint under Article 13 regarding those same alleged shortcomings.",
"ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"70. The applicants complained that they had been confined to the transit zone in violation of Article 5 § 1 of the Convention, the relevant parts of which provide as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”",
"AdmissibilityThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"71. The Government emphasised that the applicants had entered the zone of their own will and had been free to leave in the direction of Serbia at any time. The restriction of their freedom of movement in the direction of Hungary pending determination of their right to enter the country had been a limitation inherent in the nature of the admission procedure. Their temporary accommodation in the transit zone had not amounted to deprivation of liberty within the meaning of Article 5 of the Convention.",
"72. The applicants submitted that their placement in the transit zone had amounted to a de facto deprivation of liberty for which no detention order had been issued. The fact that they had entered the transit zone of their own will did not mean that they had consented to the confinement. Had they left the zone in the direction of Serbia, this could have been used against their asylum claim and could have amounted to refoulement.",
"Third-party intervener",
"73. The UNHCR provided, as a third-party intervener, an interpretation of the relevant principles of international and European refugee and human rights law regarding the detention of asylum-seekers.",
"The Court ’ s assessment",
"74. The Court reiterates the factors it has taken into consideration when determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in transit zones and reception centres for the identification and registration of migrants: (i) the applicants ’ individual situation and their choices, (ii) the applicable legal regime of the respective country and its purpose, (iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and (iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants (see Ilias and Ahmed, cited above, §§ 217-18, and Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 138, 21 November 2019). It further reiterates that in the case of Ilias and Ahmed (cited above, § 249), the Grand Chamber examined a comparable complaint and held that the applicants ’ stay of twenty-three days in the Röszke transit zone did not constitute a de facto deprivation of liberty and, consequently, that Article 5 was not applicable. The Court must now examine whether the application of the factors outlined above to the applicants ’ specific situation warrants a different conclusion in the present case.",
"(a) The applicants ’ individual situation and choices",
"75. As regards the changes in the applicable legal regime related to the fact that the applicants could only submit an application for asylum while in the transit zone (see paragraph 24 above), the Court considers that the fact remains that the applicants entered the Röszke transit zone of their own initiative, with the aim of seeking asylum in Hungary. Having regard to the known facts about the applicants and their respective journeys, it notes in particular that they had waited in Serbia for several months before crossing the border of their own free will and not because of a direct and immediate threat to their life or health in that country. It is also clear that, in any event, the Hungarian authorities were entitled to carry out the necessary verifications and examine their claims before deciding whether or not to admit them (see Ilias and Ahmed, §§ 222-23, and Z.A. and Others v. Russia, §§ 140-42, both cited above).",
"(b) The applicable legal regime, its purpose and the relevant duration in the light of that purpose and the procedural protection enjoyed",
"76. The purpose of the domestic legal regime applicable to the Röszke transit zone was to put in place a waiting area while the authorities decided whether to formally admit the asylum-seekers to Hungary (see Ilias and Ahmed, cited above, § 224). The applicants remained in the transit zone essentially because they were awaiting the outcome of their asylum proceedings (see paragraph 23 above).",
"77. The Court reiterates that the right of States to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the State, since in such cases the State authorities have undertaken vis ‑ à ‑ vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications (see Ilias and Ahmed, § 225, and Z.A. and Others v. Russia, § 144, both cited above).",
"78. The Court further reiterates that, in principle, as long as the applicant ’ s stay in the transit zone does not exceed significantly the time needed for the examination of an asylum request and there are no exceptional circumstances, the duration in itself should not affect the Court ’ s analysis on the applicability of Article 5 in a decisive manner. That is particularly so where the individuals, while waiting for the processing of their asylum claims, benefitted from procedural rights and safeguards against excessive waiting periods. The presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance in this regard (see Ilias and Ahmed, § 227, and Z.A. and Others v. Russia, § 147, both cited above).",
"79. The Court observes that unlike the situation in the case of Ilias and Ahmed (cited above, § 226), the provision limiting the maximum duration of an asylum-seeker ’ s stay in the transit zone to four weeks did not apply in the present case (see paragraph 24 above) and that the Government were unable to point to any other domestic provision fixing the maximum duration of the applicants ’ stay in the transit zone. The Court notes, moreover, that the time-limits for processing asylum claims laid down in the asylum procedure (sixty days for the IAO to take a decision on an asylum application) were not respected in the present case (see paragraph 25 above).",
"80. Furthermore, the Court observes that the processing of the applicants ’ asylum claims was anything but speedy, as the applicants spent almost four months in the transit zone awaiting the outcome of their asylum proceedings (see paragraphs 22 and 23 above, and compare and contrast Ilias and Ahmed, cited above, § 228). It takes note, in particular, of the delays of more than two months related to the provision of an expert opinion on the first and second applicants ’ marriage certificate and the DNA testing, which was only ordered two months after the applicants had been placed in the transit zone (see paragraph 22 above). Against this background, even though the IAO was entitled to take measures aimed at verifying the existence of family ties between the applicants, the Court cannot accept that the applicants ’ situation was not influenced by any inaction or lack of diligence on the part of the Hungarian authorities. The Court would add that the case file contains no indication that the applicants themselves, who were last interviewed on 8 June 2017, failed to comply with the legal regulations in place or did not act in good faith at any time during their stay in the transit zone by, for instance, complicating the examination of their asylum cases (see Z.A. and Others v. Russia, cited above, § 149).",
"(c) The nature and degree of the actual restrictions imposed on or experienced by the applicants",
"81. While the applicants were not permitted to leave the Röszke transit zone in the direction of the remaining territory of Hungary, they could have left the transit zone in the direction of Serbia at any time (see paragraph 24 above). In this connection, the Court reiterates that the risk of the applicants ’ forfeiting the examination of their asylum claims in Hungary and their fears about insufficient access to asylum procedures in Serbia (see paragraph 72 above) did not render the possibility of them leaving the transit zone in the direction of Serbia merely theoretical. Therefore, it did not have the effect of making the applicants ’ stay in the transit zone involuntary from the standpoint of Article 5 and, consequently, could not have triggered, of itself, the applicability of that provision (see Ilias and Ahmed, cited above, § 248).",
"82. As regards the conditions in which the applicants lived in the transit zone, the Court observes that, overall, as in the case of Ilias and Ahmed (cited above, § 232), the size of the applicants ’ section in the transit zone and the manner in which it was controlled were such that the applicants ’ freedom of movement was severely restricted, in a manner similar to that characteristic of a certain type of light-regime detention facility. In this connection, the Court cannot ignore the fact that the applicants spent a month and a half in the isolation section of the transit zone, under conditions which were, due to its nature, even more restrictive (see paragraph 13 above). The Court also refers to its finding of a violation of Article 3 of the Convention with respect to these conditions (see paragraphs 57 and 65 above).",
"(d) Conclusion as regards the applicability of Article 5",
"83. Having regard to the above considerations, in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants ’ stay, the excessive duration of that stay and the considerable delays in the domestic examination of the applicants ’ asylum claims, as well as the conditions in which the applicants were held during the relevant period, the Court finds that, in the circumstances of the present case, the applicants ’ stay in the transit zone amounted to a de facto deprivation of liberty (compare and contrast Ilias and Ahmed, cited above, § 249). Article 5 § 1 is therefore applicable.",
"84. It follows that this part of the application is not incompatible ratione materiae with the provisions of the Convention. Moreover, it is not manifestly ill-founded within the meaning of the same provision. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"85. The applicants alleged that the impugned measure had lacked any basis in domestic law and that there had been no decision on deprivation of liberty issued in their case. They further submitted that Hungary, a Member State of the European Union, was under an obligation to act in accordance with Article 8 of Reception Conditions Directive (see paragraph 27 above) according to which Member States should not hold a person in detention for the sole reason that he or she was an asylum-seeker. The applicants stressed that detention should be subject to individual assessment and had to be necessary and proportionate. The IAO ’ s ruling on their placement in the transit zone had lacked any assessment of the best interests of the children and had not verified whether any non-coercive alternatives to detention could be applied.",
"86. The Government submitted that, even if Article 5 of the Convention was applicable to the case, the deprivation of liberty had had legal basis in Hungarian law and had been justified under the first limb of Article 5 § 1 (f). In this connection, they relied on section 80/J of the Asylum Act (see paragraph 24 above), which provided that asylum-seekers were not entitled to a right of entry and stay in the territory of Hungary and that pending determination of their asylum applications they were accommodated in a transit zone. Pending asylum proceedings were therefore the sole condition for the lawfulness of detention in the transit zone, not requiring any judicial assessment or judicial review.",
"The Court ’ s assessment",
"87. The Court refers to the general principles on Article 5 § 1 (f) of the Convention as summarised in the case of Z.A. and Others v. Russia (cited above, §§ 159-63). It reiterates that any deprivation of liberty must be “in accordance with the procedure prescribed by law” that meets the “quality of law” criteria, as well as be free from arbitrariness. Where deprivation of liberty is concerned, it is essential that the general principle of legal certainty be satisfied and therefore that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Khlaifia and Others, cited above, § 92, with further references). Furthermore, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny (see, Z.A. and Others v. Russia, cited above, § 161).",
"88. The Court is fully conscious of the difficulties that member States may face during periods of massive arrivals of asylum-seekers at their borders. Subject to the prohibition of arbitrariness, the lawfulness requirement of that provision may be considered generally satisfied by a domestic legal regime that provides, for example, for no more than the name of the authority competent to order deprivation of liberty in a transit zone, the form of the order, its possible grounds and limits, the maximum duration of the confinement and, as required by Article 5 § 4, the applicable avenue of judicial appeal (ibid, § 162).",
"89. Turning to the present case, the Court notes that the applicants ’ detention in the transit zone lasted from 19 April to 15 August 2017, that is, three months and twenty-seven days. According to the Government, section 80/J of the Asylum Act provided the legal basis for the measure (see paragraph 24 above). This provision states that asylum applications can only be submitted, with certain exceptions, in the transit zone, and that asylum seekers are required to wait in there until a final decision is taken on their asylum applications. The Court, for its part, cannot identify in the provision in question any reference to the possibility of detention in the transit zone nor any indication of the maximum duration of asylum seekers ’ detention in the zone. Accordingly, it concludes that in the present case there was no strictly defined statutory basis for the applicants ’ detention (see, mutatis mutandis, Z.A. and Others v. Russia, cited above, § 164).",
"90. The Court further notes that the applicants ’ detention occurred de facto, that is, as a matter of practical arrangement. The Hungarian authorities did not issue any formal decision of legal relevance complete with reasons for the detention, including an individual assessment and consideration of any alternative measures that would have been less coercive than detention for the applicant family (see, mutatis mutandis, A.B. and Others v. France, cited above, §§ 123-24; see also Article 8 of the Reception Conditions Directive in paragraph 27 above).",
"91. The motives underlying the applicants ’ detention may well be those referred to by the Government in the context of Article 5 § 1 (f) of the Convention. However, the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law – a procedure which in the Court ’ s view falls short of the requirements enounced in its case-law.",
"92. It follows that the applicants ’ detention cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision.",
"ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION",
"93. The applicants further complained that the deprivation of their liberty in the transit zone could not be remedied by appropriate judicial review, in breach of Article 5 § 4 of the Convention, which provides:",
"“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"Admissibility",
"94. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"Merits",
"95. The applicants submitted that because they had not received a formal decision on their detention, they could not challenge the lawfulness of the measure in any kind of procedure and could not request their release before a judicial body.",
"96. The Government submitted that there was an effective judicial remedy against the unlawful silence of the asylum authority and arbitrariness of “pre-entry detention” of asylum-seekers in the transit zone under section 20 of the Administrative Procedure Act (see Lokpo and Touré v. Hungary, no. 10816/10, § 13, 20 September 2011).",
"97. The Court reiterates its above finding that the applicants ’ detention consisted of a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 90 above). Moreover, the administrative remedy suggested by the Government concerned the applicants ’ asylum applications rather than the question of personal liberty. In these circumstances, the Court does not find it established that the applicants could have sought a judicial review of their detention in the transit zone – which itself had not taken the form of a formal decision.",
"98. The Court must therefore conclude that the applicants did not have at their disposal any proceedings by which the lawfulness of their detention could have been decided speedily by a court.",
"99. It follows that there has been a violation of Article 5 § 4 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"100. The applicants alleged under Article 34 of the Convention that the authorities had failed to comply with the interim measure indicated by the Court on 19 May 2017. The relevant provision reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"101. The Court refers at the outset to the principles set out in its case ‑ law regarding the obligations laid down in Article 34 of the Convention and their relationship to the interim measures provided for by Rule 39 (see, for instance, Paladi v. Moldova [GC], no. 39806/05, §§ 84-92, 10 March 2009). According to those principles, the starting-point for verifying whether a respondent State has complied with an interim measure is the formulation of the interim measure itself (ibid., § 91).",
"102. Turning to the circumstances of the present case, the Court notes that on 19 May 2017 it decided to apply a first measure under Rule 39 of the Rules of Court in the case, indicating to the Hungarian Government:",
"“...to place the applicants, as soon as possible, in an environment which complies with the requirements of Article 3 of the Convention, taking into account the presence of three minors and a pregnant woman (see especially Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012) and to keep the Court informed of the developments of the applicants ’ situation.”",
"103. By a letter of 30 May 2017 the applicants informed the Court that they were still detained in the transit zone despite the interim measure. They drew the Court ’ s attention to an unanswered letter sent to the IAO by their legal representative requesting their release. In their letter of 7 June 2017 the Government did not dispute their obligation under Article 34 of the Convention to comply with the interim measure. Instead, they contended that the Court ’ s interim measure did not require the applicants ’ transfer to another reception centre and that it could be complied with within the transit zone. They submitted that the conditions in the zone, where they provided adequate accommodation and care for the applicants and their specific needs, satisfied the requirements of Article 3. In the application form, in which the applicants raised the Article 34 complaint, they maintained that after the Court ’ s Rule 39 decision of 19 May 2017 the conditions of their placement in the transit zone had not improved and, in some ways, had even worsened.",
"104. The Court notes that on 7 July 2017 the Court decided to apply a second interim measure in the case, reiterating the first Rule 39 measure and, additionally, indicating that the Hungarian Government should “ensure regular meals also for the first applicant and interpretation for the second applicant during her medical check-ups”.",
"105. In so far as the applicants can be understood as stating that only placement in an open reception centre would have complied with the requirements of Article 3 of the Convention (see paragraph 103 above), the Court observes that the Rule 39 decision of 19 May 2017 did not refer to a specific facility for the applicants ’ accommodation or request that the Government place the applicants in a reception centre outside the transit zone (see paragraph 101 above ). It notes that the applicants ’ allegation that the conditions in the transit zone worsened following the interim measure of 19 May 2017 (see paragraph 103 above) remained largely unsubstantiated.",
"106. The Court further notes that the applicants ’ complaint under Article 34 of the Convention concerns, in effect, the respondent State ’ s obligations under Article 3 of the Convention. The question whether the Government in fact complied with the interim measure at issue is thus closely related to the examination of the complaints raised by the applicants under the latter Convention provision.",
"107. Given the nature of the interim measures applied in the present case, the parties ’ submissions and the Court ’ s findings concerning the applicants ’ complaint under Article 3 of the Convention (see paragraphs 57 and 65 above) – the Court takes the view that it has examined the main legal question raised in respect of their situation in the transit zone and that it does not need to give a separate ruling on the complaint under Article 34 of the Convention (see, mutatis mutandis, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"108. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"109. The applicants claimed 15,000 euros (EUR) each in respect of non ‑ pecuniary damage.",
"110. The Government argued that the claim was excessive.",
"111. Having regard to the circumstances of the present case and the nature of the violations found, the Court considers it reasonable to award each of the adult applicants (the first and second applicants) the amount of EUR 4,500 and each of the applicant children the amount of EUR 6,500 in respect of non-pecuniary damage.",
"Costs and expenses",
"112. With respect to the proceedings before the Court, the applicants claimed EUR 18,070 for 121 hours of legal work at the hourly rate of EUR 150 plus EUR 80 in clerical expenses. The lawyer indicated that she had agreed with the applicants that the latter would pay her if they won the case before the Court.",
"113. The Government submitted that the expenses claimed had not been necessarily incurred and were not reasonable as to quantum, given the number of irrelevant submissions made by the applicants and their similarity to the submissions made in other cases.",
"114. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicants.",
"Default interest",
"115. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
8 | R.R. and Others v. Hungary | 4 December 2012 | The case concerned the exclusion of a family (a Serbian national living in Hungary, his common-law, a Hungarian national, and their three minor children) from an official witness protection programme on the ground that the father, in prison, had remained in contact with criminal groups. The family alleged in particular that their exclusion from the witness programme had put their lives at risk from mafia retribution. | The Court held that there had been a violation of Article 2 (right to life) of the Convention as regards the children and their mother. It found that the applicants had been excluded from the programme in which they had initially been enrolled without the Hungarian Government having shown that the risks had ceased to exist and without having taken the necessary measures to protect their lives. The Court concluded that the Hungarian authorities had potentially exposed the children and their mother to life-threatening vengeance from criminal circles. It further held under Article 46 (binding force and execution) that adequate measures had to be taken to protect the family, including proper cover identities if necessary. | Protection of minors | Exclusion from an official witness protection programme | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The first applicant, Mr R.R., is a Serbian national who was born in 19... and lives in Hungary. The second applicant, Ms H.H., a Hungarian national, is his common-law wife who was born in 19.... The other three applicants are their minor children.",
"6. On 12 June 2007 the first applicant, once active in a drug-trafficking mafia run by Serbians in a European country and subsequently in hiding in Hungary under a false identity, was apprehended by the Hungarian police. It is disputed whether he turned himself in or was arrested. He admitted to various offences he had committed and gave information, secretly, about the activities of the mafia in question, enabling prosecution against it. He was offered a plea bargain which he accepted. Subsequently the Hungarian prosecution, despite his complaints, joined his own case to the one conducted against the criminals he had been informing about. This required him to appear in open court, disclose his identity and act publicly as a collaborator of justice.",
"7. Since this event apparently resulted in the applicants being exposed to vengeance from the Serbian mafia, the family was enrolled in the Witness Protection Scheme on 28 August 2007. The agreement on their enrolment contained a clause to the effect that if it was cancelled on account of a breach of the rules of the Scheme by the first applicant, the whole family would be excluded from the Scheme.",
"8. Within the framework of the Scheme, the following measures of special protection were introduced, in compliance with section 16(1a–c) of Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”). The applicants were issued with new personal documents as part of providing them with new identities.",
"Ms H.H. and the children were accommodated in a three-room, then in a four-room ‘safe flat’ and finally in a five-room family house. The two elder children attended school, while the youngest child – who suffers from medium-grade autism – attended a crèche providing special care, then a kindergarten. The applicants submitted that, in any case, no adequate care was provided in respect of this child’s condition – an assertion disputed by the Government. They further alleged that during this time the Scheme’s operatives insisted that the first and second applicant should break up their relationship.",
"9. On or some time after their admission to the Scheme, the family – having otherwise no regular income in excess of the various welfare allowances due under the law – started to receive a monthly subsistence allowance. Their rent, public utility bills, health care and schooling costs (including those related to the situation of the youngest child, in particular the fee of a teacher specialised in developing pedagogy) were wholly or partly paid by the Scheme. Resources were allotted to the children’s clothing, the maintenance of the family’s car and their travel costs incurred when visiting the first applicant, who was in detention. The latter also received a sort of allowance with regard to his participation in the Scheme. The amounts of these disbursements were raised several times.",
"10. During this time, the first applicant was imprisoned in an unspecified jail. As to his contact history during the programme, the Government submitted that the family had kept regular contact with him through emailing, phone calls and in the form of monthly visits (an hour per month as per the witness protection agreement). If a visit was, for some reason, omitted, it was substituted either by another occasion or by prolonging the next visit. The last time the first applicant and his family met while the programme was running was on 26 January 2012. The next visit, scheduled for 9 February 2012, was cancelled due to the illness of the youngest child. Arrangements for a substitute visit could not be made, since on 28 February 2012 the first applicant was found in the possession of prohibited articles (see paragraph 14 below) and subjected to a 30-day, then a 10-day confinement; and on 12 April 2012 the applicants’ enrolment in the programme was cancelled altogether.",
"A month or so after his enrolment in the Scheme in 2007, the first applicant’s whereabouts were communicated to his lawyer; the latter subsequently attended several of his meetings with operatives of the National Bureau of Investigations.",
"11. The first applicant submitted that during his trial his mother was assaulted at her home in Serbia and the perpetrators made it clear to him, in an unknown manner, that the assault was in connection with him being a collaborator of justice. He emphasised that he did not change his mind about becoming a collaborator of justice although a significant sum of ‘blood money’ had been set by the Serbian mafia on his head because of this, and his parents had been – and still were – being harassed by the Serbian authorities and the mafia.",
"12. The Government submitted that the operatives of the Scheme carried out, as is the standard practice, a careful assessment of potential threats to the applicants, including interviewing some of the first applicant’s relatives. However, although the first applicant repeatedly mentioned the setting of ‘blood money’ of 200,000 euros on his head by Serbian mafia men, no evidence corroborated this allegation in the eyes of the authorities. In the applicants’ view, the gathering of information in this respect was insufficient.",
"13. After numerous hearings held between 5 November 2007 and 9 February 2009, on 23 February 2009 the Budapest Regional Court convicted the first applicant, as a member of a criminal organisation consisting of another 18 persons, of aggravated abuse of narcotics and of firearms and other offences and sentenced him to 14 years of imprisonment. In the reasoning of its 187-page judgment, the Regional Court relied inter alia on testimonies given by numerous experts and witnesses, including that of the first applicant, physical evidence, documents and information obtained through secret surveillance.",
"On 6 January 2010 the Budapest Court of Appeal reduced the first applicant’s sentence to six years.",
"On 6 October 2010 the Supreme Court aggravated the first applicant’s sentence to nine years.",
"Some of the persons who, in the authorities’ perception, represented a threat to the applicants were convicted in the same proceedings.",
"14. During his ensuing detention, on 28 February 2012 a laptop computer and a mobile internet device, held without authorisation, were found by the guards in his cell. He was caught in the act of communication using a voice-over-internet service. It could not be established how the prohibited devices had been smuggled into the penitentiary. The identities of the person or persons the first applicant had communicated with could not be determined with certainty either. The authorities nevertheless deduced from the first applicant’s oral statements and the circumstances that he might have maintained contacts with criminal circles.",
"15. As a sanction, the entire family was excluded from the Scheme on 12 April 2012. This was explained by the fact that, by carrying out illicit communications, the first applicant had seriously breached the clauses of the agreement with the Scheme. It was found that, by virtue of this exposure, he had become a source of danger in the first place for his family and also for the operatives of the Scheme. It was also recalled that the co-operation between him and the Scheme operatives had gradually become very difficult, since he had kept complaining about various matters and demanded advantages not provided in the protection agreement or their better implementation.",
"16. On the same day, the Scheme’s operatives visited Ms H.H. and informed her about the termination of the programme and of the protection measures, and about the fact that their original identities would simultaneously be restored.",
"17. The Government submitted that the agreement with the first applicant had been cancelled because of him having repeatedly breached its provisions, rather than because the threat to him and his family had diminished. In any case, in their view, this threat had indeed decreased on account of the apprehension of those persons who represented a danger for the applicants. The applicants contested this view, submitting that, despite these incarcerations, the criminal organisation which was after the first applicant was still active and posing a real threat.",
"18. The Government further submitted that after the applicants’ exclusion from the programme, another scheme called “personal protection” had been put in place for them, in application of section 4(5) of Government Decree no. 34/1999. (II.26.). They had continued benefiting from the house, the car, the telephone line and the computer and other items as well as the allowances during the transitional period of one month or so. The Witness Protection Scheme had arranged for returning their original documents and the withdrawal of cover documents, and taken the requisite steps with regard to the maintenance, under their original names, of the family’s health and social care and the children’s schooling. The family’s public utility bills due for April 2012 had been paid by the Scheme, which had also assisted them in moving house, including the provision of free transport and free temporary storage facilities. For the first applicant, “personal protection” consisted of his relocation to the strict-regime department of S. Prison which is physically separated from the rest of the institution. Here, he has been placed in a cell of 6 square metres; the view from the window is blocked; he is entitled to have an open-air walk once a day for an hour.",
"19. The applicants submitted that, the programme having been terminated irrespective of the persistent threat, no real care had been taken of Ms H.H. and the children. The latter were bound to return to school under their real names; and, inevitably, the fact that the family had been in witness protection for five years must have been revealed as a consequence of this. The measures of “special protection” had included nothing but an emergency phone number available to Ms H.H. and scarce visits paid to the family by police officers enquiring if anything was wrong. The family’s personal particulars and whereabouts became accessible to anyone.",
"III. WORK OF THE COUNCIL OF EUROPE",
"21. Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers’ Deputies) reads as follows:",
"“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,",
"...",
"Recommends that governments of member states:",
"i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles and measures appended to this Recommendation;",
"I. Definitions",
"For the purposes of this Recommendation, the term:",
"- “witness” means any person who possesses information relevant to criminal proceedings about which he/she has given and/or is able to give testimony (irrespective of his/her status and of the direct or indirect, oral or written form of the testimony, in accordance with national law), who is not included in the definition of “collaborator of justice”;",
"- “collaborator of justice” means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, or in offences of organised crime, but who agrees to cooperate with criminal justice authorities, particularly by giving testimony about a criminal association or organisation, or about any offence connected with organised crime or other serious crimes;",
"- “intimidation” means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice, which may lead to interference with his/her willingness to give testimony free from undue interference, or which is a consequence of his/her testimony;",
"- “anonymity” means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general;",
"- “people close to witnesses and collaborators of justice” includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice, such as the partner, (grand)children, parents and siblings;",
"- “protection measures” are all individual procedural or non-procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to cooperate with justice;",
"- “protection programme” means a standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice.",
"...",
"III. Protection measures and programmes",
"...",
"18. Any decision to grant anonymity to a witness in criminal proceedings will be made in accordance with domestic law and European human rights law.",
"...",
"20. Any decision to grant anonymity should only be taken when the competent judicial authority finds that the life or freedom of the person involved, or of the persons close to him or her, is seriously threatened, the evidence appears to be significant and the person appears to be credible.",
"...",
"22. Where appropriate, witness protection programmes should be set up and made available to witnesses and collaborators of justice who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses/collaborators of justice, and people close to them, aiming in particular at providing the appropriate physical, psychological, social and financial protection and support.",
"23. Protection programmes implying dramatic changes in the life/privacy of the protected person (such as relocation and change of identity) should be applied to witnesses and collaborators of justice who need protection beyond the duration of the criminal trials where they give testimony. Such programmes, which may last for a limited period or for life, should be adopted only if no other measures are deemed sufficient to protect the witness/collaborator of justice and persons close to them.",
"24. The adoption of such programmes requires the informed consent of the person(s) to be protected and an adequate legal framework, including appropriate safeguards for the rights of the witnesses or collaborators of justice according to national law.",
"25. Where appropriate, protection measures could be adopted on an urgent and provisional basis before a protection programme is formally adopted.",
"26. Given the essential role that collaborators of justice may play in the fight against serious offences, they should be given adequate consideration. Where necessary, protection programmes applicable to collaborators of justice serving a prison sentence may also include specific arrangements such as special penitentiary regimes.",
"27. Protection of collaborators of justice should also be aimed at preserving their credibility and public security. Adequate measures should be undertaken to protect against the risk of the collaborators of justice committing further crimes while under protection and therefore, even involuntarily, jeopardising the case in court. The intentional perpetration of an offence by a collaborator of justice under protection should, according to the relevant circumstances, imply the revocation of protection measures.",
"...”"
] | [
"II. RELEVANT DOMESTIC LAW",
"20. Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”) provides as follows:",
"Section 1",
"“For the purposes of this Act, the term:",
"1. “Protection Programme” means organised protection that cannot be secured within the framework of personal protection, which is granted to a witness, an aggrieved party, a defendant, a relative of the above persons or to any other person under threat on account of the person concerned,",
"a) provided by the police under a civil law agreement concluded with the person under threat, and",
"b) in the course of which the application of special measures (section 16) and – in order to help the social integration of the person concerned – mental, social, economic, human and legal support is needed;",
"2. “Agreement” means a civil-law agreement between the police and the person under threat on the latter’s enrolling in the Protection Programme, on the cooperation to be carried out under the Programme, and on the rights and obligations of the participants in the Protection Programme;",
"3. “Personal protection” means measures carried out, in pursuit of a separate decree..., by the police ... in order to secure personal protection for the participants in criminal proceedings and the officials of the authority in charge ...;”",
"Section 7",
"“(4) To settle a dispute emanating from the agreement, the parties shall conduct conciliatory negotiations. If the parties are unable to settle the dispute in three days, either party may seek a judicial ruling. The Budapest High Court has exclusive competence to deal with such disputes and adjudicates them in non-contentious proceedings. Where appropriate, the court shall hear the parties in person.”",
"Section 16",
"“(1) In order to prevent an unlawful act against the life, bodily integrity or personal liberty of the person concerned, the Scheme may apply the following special protection measures:",
"a) placement (moving) of the person concerned in a safe place by changing his domicile or place of residence or by relocating a detainee covered by the Programme from the penitentiary institution in which he is placed into another one;",
"b) granting personal protection for the person concerned;",
"c) ordering that the data of the person concerned, stored in official registers, no longer be accessible and that any request for access to such data be signalled;",
"d) change of name;",
"e) change of identity;",
"f) participation in international cooperation.”",
"ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions.",
"Appendix to Recommendation Rec(2005)9",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION",
"22. The applicants complained that their exclusion from the Witness Protection Scheme entailed the risk of the mafia making an attempt on their lives.",
"The Court considers that this issue falls to be examined under Article 2 of the Convention which provides as relevant:",
"“1. Everyone’s right to life shall be protected by law. ...”",
"23. The Government contested that argument.",
"A. Admissibility",
"24. The Government submitted that the applicants had not exhausted domestic remedies, since they had not availed themselves of the judicial procedure under section 7(4) of the Protection Act 2001, or else of a tort action, claiming a breach of the agreement by the authorities.",
"The applicants contested these views.",
"The Court notes that section 7(4) is reserved for adjudicating disputes emanating from the agreement (see section 20 above), whereas the present application concerns the authorities’ decision to exclude the applicants altogether from the Scheme. For the Court, it is hardly conceivable that the unilateral termination by the authorities of this legal set-up falls into the category of ‘disputes emanating from the agreement’. However, even assuming so, the Court finds that the Government have not demonstrated in any manner how such a procedure would have effectively protected the applicants from the threats allegedly flowing from the removal of their cover identities. It is even less the case in respect of a tort action, which evidently would have taken time and resulted most likely in pecuniary compensation, if any. In sum, the Court is not persuaded that the legal avenues suggested by the Government represent effective remedies in the circumstances. It follows that the application cannot be rejected for non-exhaustion of domestic remedies.",
"The Court further notes that, with regard to Ms H.H. and her children, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"25. Concerning Mr R.R., the Court would observe that when he was excluded from the Scheme, his position was altered only to the extent that he was transferred to the strict-regime section of S. Prison (see paragraph 18 above). In the absence of any elements pointing to risks which Mr R.R. is running in that institution, the Court finds that this part of the application is unsubstantiated and must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"The Court would stress that this conclusion is based on the first applicant’s present situation, that is, his incarceration under strict regime conditions at S. Prison, and does not exclude that any change in that situation which might expose the applicant to a risk might raise an issue under the Convention.",
"B. Merits",
"26. The applicants submitted that their exclusion from the Scheme entailed the risk that criminal elements might take vengeance on them for the first applicant having been a collaborator of justice. In their view, the steps taken by the authorities after the termination of the programme, such as providing Ms H.H. with an emergency phone number and scarce visits by police officers provided no security whatsoever. The level of threat had never dropped since most of the persons representing risk to the family are still at large.",
"27. The Government specified that the applicants’ enrolment in the Scheme had been terminated not because of the elimination of threats, but because of the first applicant’s breaches of the programme’s rules. In any case, the level of threat had dropped since certain persons representing a potential threat to the applicants had been apprehended and sentenced to imprisonment in the same proceedings as the first applicant, that is, finally on 6 October 2010 (see paragraph 13 above). Subsequently, the authorities had carried out a further enquiry into the threats feared by the applicants but found no evidence pointing to real risks. To counter the remaining risks, if any, the authorities had nevertheless introduced personal protection measures for the family from the moment of terminating their enrolment.",
"28. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.",
"29. For the Court, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case (see Osman v. the United Kingdom, 28 October 1998, §§ 115-116, Reports 1998–VIII).",
"30. In the instant case, the Court notes that the applicants were enrolled in the Witness Protection Scheme shortly after the first applicant had become available to the authorities as a collaborator of justice. The parties’ submissions, rather vague, about the nature of the threats prevailing at that time do not enable the Court to assess whether they represented a real and immediate risk to the applicants’ lives. However, it notes that, in applying the rules of witness protection to the applicants’ case, the authorities implicitly accepted that there was a serious risk to their life, limb or personal liberty within the meaning of section 16 of the Protection Act 2011 (see paragraph 20 above). Given the well-known nature of mafia conflicts and the applicants’ unrefuted allegations about them being wanted by criminal circles – an assertion not implausible in the light of the first applicant’s having become a collaborator of justice enabling the unravelling of internationally organised criminal activities – the Court accepts that there was indeed a serious threat to the applicants’ lives (rather than only to limb or liberty), when the measure was originally put in place.",
"31. Consequently, it has to be ascertained whether that risk was still real when the applicants were excluded from the programme, or else whether the authorities did all that could be reasonable expected of them to avoid that risk. As to its existence, the Court notes the Government’s explanation according to which the persons representing a potential threat to the applicants have been apprehended. However, the Government also admitted (see paragraph 17 above) that the programme had not been terminated because of the drop in the level of risks.",
"In any case, since those incarcerations took place in 2010 at the latest (see paragraph 13 above), whereas the applicants were excluded from the programme only in April 2012, the Court is, for its part, unable to see any causal link between those arrests and the termination of the programme.",
"In these circumstances, the Court observes that the applicants were excluded from the programme for reasons other than the elimination of risks, and finds that the Government have not shown in a persuasive manner that the risks have ceased to exist.",
"It remains to be examined whether the authorities have effectively countered those risks.",
"32. The Court notes that the applicants’ cover identities were withdrawn and the children started to go to school under their real names. It is not unreasonable to suppose that their identities and whereabouts have become accessible to any person with the intention of harming them. In the face of this development, the Court cannot accept the Government’s assertion according to which the security previously guaranteed by the Scheme was substituted for, in a satisfactory manner, by the measures of personal protection, that is, the availability of an emergency phone number and the occasional visits by police officers.",
"Given the importance of witness protection reflected by the Court’s case-law (see, although in different contexts, Ahorugeze v. Sweden no. 37075/09, § 121, 27 October 2011; and Doorson v. the Netherlands, 26 March 1996, §§ 69-70, Reports 1996 ‑ II) as well as by Recommendation Rec(2005)9 of the Committee of Ministers (see paragraph 21 above), the Court cannot but conclude that the authorities’ actions in this case may have potentially exposed Ms H.H. and her children to life-threatening vengeance from criminal circles and thus fell short of the requirements of Article 2 of the Convention.",
"There has accordingly been a violation of that provision in respect of the second, third, fourth and fifth applicants.",
"II. RULE 39 OF THE RULES OF COURT",
"33. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.",
"34. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"35. The first applicant also complained under Article 5 that the joinder of his case to the one against other perpetrators had resulted in his exposure.",
"The Court considers that these submissions do not raise any issue under Article 5 of the Convention.",
"He further complained under Article 6 that his trial had been unfair in that the courts had assessed the evidence in a one-sided manner to his detriment.",
"In so far as the first applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, the Court considers that there is no indication that the courts lacked impartiality or that the proceedings were otherwise unfair.",
"He also complained that the alleged insistence of the Scheme’s operatives that the second applicant should break up with him amounted to a breach of Article 8 (see paragraph 8 above).",
"The Court finds that this complaint is wholly unsubstantiated.",
"Without relying on any particular provisions of the Convention, he lastly complained about the restrained conditions of his detention at S. Prison (see paragraph 18 above).",
"The Court is satisfied that the conditions of the detention do not disclose any appearance of a violation of the first applicant’s Article 3 rights, the minimum level of severity required for this provision to come into play not being attained. Furthermore, the restrained conditions, not argued to be unlawful, can be seen as pursuing the legitimate aim of prevention of crime within the meaning of Article 8 § 2 and necessary in a democratic society to secure the first applicant’s personal security (see paragraphs 18 and 25 above); therefore, there is no appearance of a violation of the first applicant’s rights under Article 8 of the Convention in this connection either.",
"It follows that the above complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.",
"IV. ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46 of the Convention",
"36. The relevant parts of Article 46 of the Convention read as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...”",
"37. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998–IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000–VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004–I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001–I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005–IV).",
"38. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004–V; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009; and Stanev v. Bulgaria [GC], no. 36760/06, § 255, ECHR–2012).",
"39. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 2, to indicate individual measures for the execution of this judgment without prejudice to any general measures required to prevent other similar violations in the future. It observes that it has found a violation of that Article on account of the fact that the authorities excluded the second, third, fourth and fifth applicants from the witness protection programme without satisfying themselves that the threat against the applicants was no longer there and without taking the necessary measures to protect their lives (see paragraph 32 above).",
"40. The Court considers that in order to redress the effects of the breach of the rights of the second, third, fourth and fifth applicants, the authorities should secure measures of adequate protection for these applicants, including proper cover identities if necessary, equivalent to those provided in section 16 of the Protection Act 2001 (see paragraph 20 above) until such time as the threat can be proven to have ceased.",
"B. Article 41 of the Convention",
"41. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"42. Each applicant claimed 75,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. The figure concerning pecuniary damage includes the loss of income incurred since the termination of their enrolment in the programme and the same for the future.",
"43. The Government contested these claims.",
"44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the second, third, fourth and fifth applicants must have suffered some non-pecuniary damage and awards them jointly, on the basis of equity, EUR 10,000 under this head.",
"2. Costs and expenses",
"45. The applicants also claimed EUR 4,790 plus VAT for the costs and expenses incurred before the Court. This figure includes the legal fees payable to the applicants’ lawyer, corresponding to 47 hours of legal work charged at an hourly fee of EUR 100 plus VAT as well as to EUR 90 of clerical costs.",
"46. The Government contested this claim.",
"47. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads.",
"3. Default interest",
"48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
9 | Zaieţ v. Romania | 24 March 2015 | This case concerned the annulment of a woman’s adoption, at the instigation of her adoptive sister, 31 years after it had been approved and 18 years after the death of their adoptive mother. The applicant alleged in particular that the annulment of her adoption had been an arbitrary and disproportionate intrusion into her family life, submitting that she had lived with her adoptive mother since the age of nine and that their relationship had been based on affection, responsibility and mutual support. She also complained that, after the annulment of her adoption, she lost title to the five hectares of forest she inherited from her adoptive mother. | This was the first occasion on which the Court had to consider the annulment of an adoption order in a context where the adoptive parent was dead and the adopted child had long reached adulthood. In the applicant’s case, the Court, finding that the annulment decision was vague and lacking in justification for the taking of such a radical measure, concluded that the interference in her family life had not been supported by relevant and sufficient reasons, in violation of Article 8 (right to respect for private and family life) of the Convention. The Court noted in particular that, in any event, the annulment of an adoption should not even be envisaged as a measure against an adopted child and underlined that in legal provisions and decisions on adoption matters, the interests of the child had to remain paramount. The Court also held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention, on the account of the disproportionate interference with the applicant’s property right over the disputed land. | Children’s rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1955 and lives in Săvârșin.",
"6. She was adopted on 25 February 1972, at the age of seventeen.",
"7. The applicant ’ s adoptive mother also had another adopted daughter, H.M. The applicant ’ s mother died in 1986.",
"8. In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother.",
"9. Subsequently, the applicant brought an action for division of the land between the sisters.",
"10. While the proceedings were ongoing, H.M. brought an action for annulment of the applicant ’ s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities. H.M. averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights.",
"11. The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law.",
"12. In his final oral submissions before the first-instance court the applicant ’ s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.M. had not proved a legitimate and current interest in seeking the annulment of her sister ’ s adoption.",
"13. On 7 December 2004 the Suceava County Court dismissed the applicant ’ s objection and declared the applicant ’ s adoption void, finding that it had not had a purpose envisioned by the Family Code. It held that the only aim of the applicant ’ s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant.",
"14. The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption.",
"15. The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW",
"A. Relevant domestic law",
"16. The relevant provisions of the Family Code concerning adoption were repealed by Government Emergency Ordinance no. 25/1997, (GEO no. 25/1997) published in the Official Gazette no. 120 of 12 June 1997. The relevant provisions concerning the annulment of adoption were as follows:",
"Article 22",
"“(2) An adoption may be cancelled at the request of an adoptee who has reached the age of ten, or the Child Protection Commission in the adoptee ’ s area if the annulment of the adoption is in the best interests of the adoptee.”",
"17. The Adoption Act (Law no. 273/2004) repealed GEO no. 25/1997 and entered into force on 1 January 2005. The relevant provisions, as in force at the relevant time, read as follows:",
"Article 56",
"“(1) A court may annul an adoption order if the adoption was sought for a reason other than the protection of the best interests of the adoptee or if the conditions provided for by law were not observed.",
"(2) The court may dismiss a request for the annulment of an adoption if it considers that maintaining the adoption is in the best interests of the adoptee.”",
"Article 57",
"“Any interested person may request the annulment of an adoption. After the adoptee obtains his or her full legal capacity, he or she is the only person who can challenge the validity of the adoption.”",
"B. Relevant international standards",
"1. European Convention on the Adoption of Children, opened for signature in Strasbourg on 24 April 1967 and ratified by Romania on 18 May 1993",
"Article 10",
"“(1) Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock.",
"Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother.",
"(2) When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child.",
"In addition the law may preserve the obligation of the parents to maintain (in the sense of l ’ obligation d ’ entretenir and l ’ obligation alimentaire ) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation.",
"(3) As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own.",
"(4) If the parent of a child born in lawful wedlock has a right to the enjoyment of that child ’ s property, the adopter ’ s right to the enjoyment of the adopted person ’ s property may, notwithstanding paragraph 1 of this article, be restricted by law.",
"(5) In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.”",
"2. European Convention on the Adoption of Children (Revised), opened for signature on 27 November 2008 and ratified by Romania on 2 January 2012",
"18. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on child adoption have led a large number of States parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child ’ s best interests into account.",
"19. The Council of Europe ’ s European Convention on the Adoption of Children (Revised) was opened for signature on 27 November 2008. Romania signed it on 4 March 2009 and ratified it on 2 January 2012.",
"Article 11 – Effects of an adoption",
"“(1) Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.”",
"Article 14 – Revocation and annulment of an adoption",
"“(1) An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration.",
"(2) An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority.",
"(3) An application for annulment must be made within a period prescribed by law.”",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"20. The Government invited the Court to reject the application on the ground that the applicant had failed to comply with the requirement under Article 35 § 1 of the Convention to submit the application within six months. They submitted that although the applicant had sent a first letter to the Court on 12 October 2005, a duly completed application form had been submitted only on 17 January 2006. They concluded that as the six-month limit for submitting an application to the Court had expired on 15 October 2005 the application was out of time.",
"21. The applicant disagreed. She submitted that after she had sent her application on 14 October 2005 she had completed and returned the official application form within the deadline set by the Court. Therefore, she was asking the Court to dismiss this objection as unfounded.",
"22. From the analysis of the material submitted by the applicant the Court notes that she had sent a letter containing all the relevant information for submitting an application on 14 October 2005. On 19 December 2005 the Court informed the applicant that her application had been registered and asked her to fill in a standard application form within six weeks of reception of the Court ’ s letter. The applicant returned a duly completed application form on 17 January 2006. The Court, therefore, finds no reason to conclude that the applicant did not comply with the six-month time-limit, and rejects the Government ’ s preliminary objection.",
"II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION",
"23. The applicant complained that her right to respect for her private and family life had been violated because of the annulment of her adoption by unlawful decisions of the domestic courts. She relied on Articles 6 § 1 and 8 of the Convention.",
"24. The Court reiterates that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002 ‑ I, and Kurochkin v. Ukraine, no. 42276/08, § 31, 20 May 2010 ).",
"25. The Court therefore considers that the applicant ’ s complaints fall to be examined solely under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"26. The Government submitted that Article 8 of the Convention was not applicable to the applicant ’ s case, and asked the Court to dismiss the application as inadmissible ratione materiae. In this connection they contended that in the instant case the family relationship to be protected under Article 8 had not arisen from a lawful and genuine adoption.",
"27. The applicant disagreed, and maintained that the relationship built between her and her adoptive mother could be considered sufficient to be covered and protected by Article 8 of the Convention.",
"28. The Court notes that the instant case concerns the proceedings for the annulment of the applicant ’ s adoption order, thirty-one years after it had been issued. The domestic courts ’ decisions by which the applicant ’ s adoption was declared void directly affected her private and family life. The Court considers that the applicant ’ s complaint relates to her private and family life and falls within the scope of Article 8 of the Convention. Therefore, the Government ’ s objection has to be dismissed.",
"29. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"30. The applicant argued that the adoption had been concluded in accordance with the legal provisions in force at that time. A social investigation had been carried out and witness statements recorded. She also pointed out that she had been raised and educated by her adoptive mother since she was nine years old, and stated that their relationship had been based on affection, responsibility, and mutual moral and material support. The applicant submitted that the annulment of her adoption had represented an intrusion in her family life which had no legitimate aim and was disproportionate and arbitrary.",
"31. As regards the legal proceedings for the annulment of her adoption, the applicant claimed that her sister had not had locus standi to lodge the action for annulment and that the reasons provided by the domestic courts for allowing the action had not been relevant and sufficient. The applicant did not agree that she had to raise the objection of lack of locus standi of her sister again before the appeal court. She argued that on the basis of the principle of the active role of the courts, provided for by Article 129 § 5 of the Romanian Code of Civil Procedure, the appeal court should have taken into account the objection raised at the lower level of jurisdiction, as it related to an absolute and peremptory objection.",
"32. The Government considered that the measure complained of was lawful, pursued a legitimate interest and was necessary and proportionate. They pointed out that the reasons adduced by the domestic courts for the annulment of the adoption were relevant and sufficient.",
"33. As regards the locus standi of the applicant ’ s sister to lodge a claim seeking the annulment of adoption, the Government pointed out that the applicant had not raised this objection again before the appeal court.",
"2. The Court ’ s assessment",
"(a) Whether there has been an interference",
"34. The Court reiterates that the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention, and that such a relationship, arising from a lawful and genuine adoption, may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 140 and 148, ECHR 2004 ‑ V (extracts)).",
"35. In the instant case, the Court considers that the annulment of the adoption order, thirty-one years after it had been issued, at the request of the applicant ’ s sister, amounted to an interference with the applicant ’ s right to respect for her family life as guaranteed by Article 8 § 1 of the Convention.",
"(b) Whether the interference was justified",
"36. Such an interference can be considered justified only if the conditions of the second paragraph of Article 8 are satisfied. It must be “in accordance with the law”, have an aim which is legitimate under that paragraph, and must be “necessary in a democratic society” for the aforesaid aim (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 72, ECHR 1999 ‑ VI). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008).",
"( i ) In accordance with the law",
"37. The expression “in accordance with the law” under Article 8 § 2 requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008).",
"38. Regarding whether the interference was in accordance with the law, the Court notes that at the time the applicant ’ s sister lodged her action the relevant provisions concerning adoption were to be found in GEO no. 25/1997 (see paragraph 16 above). On 26 June 2004, after the first ‑ instance court had delivered its judgment but while the application for the annulment of the applicant ’ s adoption was before the appeal court, the Adoption Act (see paragraph 17 above) entered into force.",
"39. The Court observes that the decisions concerning the annulment of the applicant ’ s adoption were taken upon an application by her sister, also adopted by the applicant ’ s adoptive mother. In this connection the applicant claimed before the first-instance court that her sister had no locus standi to challenge the adoption order. The applicant based her objection on the provisions of the Code of Civil Procedure, and claimed that her sister had not proved a legitimate interest for lodging her application. The first ‑ instance court had dismissed the applicant ’ s objection, holding that the applicant ’ s sister had a legitimate interest in obtaining the annulment of the adoption, as the applicant and her sister were parties to the proceedings for the partition of ten hectares of forest (see paragraph 9 above) inherited from their adoptive mother. The Court notes that under Article 22 of GEO 25/1997, in force at that time, only an adoptee who had reached the age of ten or the Child Protection Commission could challenge the adoption order, and then only on condition that the cancellation served the best interests of the child.",
"40. The Court also notes that the applicant did not raise the objection of lack of locus standi again before the appeal court. The appeal court had rendered its final decision on 15 April 2005, three months after the Adoption Act had entered into force. Section 57 of the Adoption Act states that after an adoptee obtains full legal capacity only the adoptee can seek annulment of his or her adoption. The Court considers that although the applicant had not cited these provisions before the appeal court, the latter court should have raised this objection proprio motu, on the basis of the active role the courts have to play in the administration of justice, especially because the lack of locus standi is a peremptory and absolute objection in civil proceedings.",
"41. In the light of the foregoing the Court is doubtful that the measure at issue applied by the authorities was in accordance with the law within the meaning of Article 8 of the Convention.",
"(ii ) Legitimate aim",
"42. As regards the legitimate interest pursued by the domestic courts, the Court notes that the annulment of the applicant ’ s adoption did not serve the interests of either the adopted child or the adoptive mother. The main consequence of the annulment was the disruption of the applicant ’ s family tie with her already dead mother and the loss of her inheritance rights to the benefit of her sister. Taking into account that the annulment proceedings were brought by the applicant ’ s sister in order to keep for herself the whole land inherited from their adoptive mother, the Court also expresses doubts that a legitimate aim was pursued by the impugned decisions.",
"(iii) Necessary in a democratic society",
"43. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see Kutzner, cited above, § 65, and Moser v. Austria, no. 12643/02, § 64, 21 September 2006).",
"44. In doing so, it is not the Court ’ s task to substitute itself for the domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see K. and T. v. Finland [GC], no. 25702/94, § 154).",
"45. Even assuming that the authorities enjoy a wide margin of appreciation in assessing the need for the annulment of the adoption (see mutatis mutandis, Kurochkin v. Ukraine, no. 42276/08, § 52, 20 May 2010 and Ageyevy v. Russia, no. 7075/10, § 127, 18 April 2013), the Court must still be satisfied in this particular case that there are circumstances which justify the annulment of the applicant ’ s adoption thirty-one years after the adoption order had been issued.",
"46. The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be maintained. Splitting up a family is an interference of a very serious order. Such a step must be supported by sufficiently sound and weighty considerations not only in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII) but also in respect of the legal certainty.",
"47. Turning to the facts of the present case, the Court observes that the reason for the annulment of the adoption of the applicant was based on the domestic courts ’ consideration that the only aim of the applicant ’ s adoption had been the furtherance of the patrimonial interests of the adoptive mother and the adopted child, and the adoption had not been intended to ensure a better life for the applicant.",
"48. The Court notes that as a general rule the legal provisions governing adoption are designed primarily for the benefit and protection of children. Usually, child welfare officials will seek a termination order on the basis of a judicial ruling that the parent is unfit to rear the child and that severance of the legal status would serve the child ’ s interests. The annulment of adoption is not envisaged as a measure against the adopted child and cannot be interpreted in the sense of disinheriting an adopted child eighteen years after the death of her adoptive mother and thirty-one years after the adoption order had been issued. In this respect the Court also notes that under section 57 of the Adoption Act, which entered into force on 1 January 2005, only the adopted child may challenge the validity of the adoption after the adoptee has obtained his or her full legal capacity.",
"49. If subsequent evidence reveals that a final adoption order was based on fraudulent or misleading evidence, the interests of the child should remain paramount in establishing a process to deal with any damage caused to the adoptive parent as a result of the wrongful order.",
"50. In the light of the foregoing, in the Court ’ s opinion the findings of the domestic courts on the annulment of the adoption of the applicant were not supported by relevant and sufficient reasons justifying such an interference in the applicant ’ s family life. The arguments contained in the court decisions are rather vague and do not provide sufficient justification for the application of such a radical measure by the courts in respect of the applicant ’ s family rights.",
"51. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION",
"52. The applicant further complained that her property rights had been infringed, as, after the annulment of her adoption, she lost title to the five hectares of forest she had inherited from her adoptive mother.",
"She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"A. Admissibility",
"1. The objection of non-exhaustion of domestic remedies",
"53. The Government maintained that the applicant had not exhausted the domestic remedies afforded. They noted that the applicant had not filed an appeal against the judgment rendered by the Câmpulung Moldovenesc District Court on 22 September 2006. They also pointed out that the action for division of the land between the sisters lodged by the applicant had been dismissed on the ground that the applicant had failed to pursue her action.",
"54. The applicant maintained that the proceedings referred to by the Government had not had any prospect of success after the annulment of her adoption.",
"55. The Court notes that the annulment of the applicant ’ s adoption by a final decision of 15 April 2005 had as direct consequence the loss of the applicant ’ s inheritance rights. Therefore, the Court considers that the continuation of the civil proceedings concerning the land inherited from the applicant ’ s adoptive mother could not provide any redress for the violations alleged by the applicant. Therefore the Court dismisses the Government ’ s preliminary objection of non-exhaustion.",
"2. The objection rationae materiae",
"56. The Government submitted that the applicant had no possession as the ownership title which conferred her right to the land had been annulled by a final decision of a domestic court.",
"57. The applicant contested the Government ’ s argument.",
"58. The Court considers that the objection is closely linked to the merits of the applicant ’ s complaint. It will therefore deal with the objection in its examination of the merits below. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"59. The applicant maintained that by allowing the action for the annulment of the adoption and subsequently the action for the annulment of the ownership title to the land the Romanian State had abusively and disproportionally interfered with her property right over the land.",
"60. The Government submitted that if the Court considered that there was an interference with the applicant ’ s rights, such interference was legal, justified and proportionate.",
"61. Having regard to its reasoning and findings under Article 8 and in view of the fact that the alleged violation of Article 1 of Protocol No. 1 is the direct outcome of the proceedings that gave rise to the breach of Article 8 of the Convention, the Court rejects the Government ’ s objection as to incompatibility ratione materiae and finds that there has also been a violation of Article 1 of Protocol No. 1 to the Convention (compare and contrast, Marckx v. Belgium, 13 June 1979, § 63, Series A no. 31; Inze v. Austria, 28 October 1987, §§ 38-40, Series A no. 126; Mazurek v. France, no. 34406/97, §§ 41-43, ECHR 2000 ‑ II, and Fabris v. France [GC], no. 16574/08, §§ 51-55, ECHR 2013 (extracts)).",
"IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"62. Lastly, the applicant complained under Article 6 § 1 of the Convention of bias on the part of the domestic judges. Relying on Article 14 of the Convention the applicant alleged discriminatory treatment between herself and her sister with regard to inheritance rights following the annulment of her adoption.",
"63. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"64. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"65. The applicant claimed 30,000 euros (EUR) in compensation for pecuniary damage. She submitted that this amount represented the financial impact of the loss of use of the five hectares of forest she had inherited. She also claimed EUR 10,000 in compensation for non-pecuniary damage, representing the suffering related to the cancelling of her adoption.",
"66. The Government argued that the applicant had not submitted any documents to support her claim for pecuniary damages, and that therefore this claim should be dismissed as speculative. As regards the amount requested by the applicant in compensation for non-pecuniary damage the Government submitted that the amount was too high.",
"67. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000 ‑ XI). If one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000 ‑ IV).",
"68. The Court has found a violation of Articles 8 and 1 of Protocol No. 1 on account of the annulment of the applicant ’ s adoption and the consequent loss of her inheritance rights. In addition to a degree of pecuniary loss, the applicant must have also suffered distress as a result of these circumstances. Therefore, the Court considers it reasonable to award the applicant a total of EUR 30,000 to cover all heads of damage.",
"B. Costs and expenses",
"69. The applicant also claimed EUR 550 for costs and expenses incurred before the domestic courts and EUR 1,500 for those incurred before the Court.",
"70. The Government contended that according to the documents submitted by the applicant she had paid only EUR 738 to the lawyer who had represented her before the Court, and that the amount of EUR 1,500 should therefore not be granted.",
"71. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,200 for costs and expenses.",
"C. Default interest",
"72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
10 | Paradiso and Campanelli v. Italy | 24 January 2017 (Grand Chamber) | This case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into with a Russian woman by an Italian couple (the applicants); it subsequently transpired that they had no biological relationship with the child. The applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent-child relationship established abroad by registering the child’s birth certificate in Italy. | The Grand Chamber found, by eleven votes to six, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in the applicants’ case. Having regard to the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of the ties between them from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Grand Chamber held that a family life did not exist between the applicants and the child. It found, however, that the contested measures fell within the scope of the applicants’ private life. The Grand Chamber further considered that the contested measures had pursued the legitimate aims of preventing disorder and protecting the rights and freedoms of others. On this last point, it regarded as legitimate the Italian authorities’ wish to reaffirm the State’s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children. The Grand Chamber also accepted that the Italian courts, having concluded in particular that the child would not suffer grave or irreparable harm as a result of the separation, had struck a fair balance between the different interests at stake, while remaining within the room for manoeuvre (“margin of appreciation”) available to them. | Children’s rights | Children born as a result of surrogacy treatment | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicants – a married couple – were born in 1967 and 1955 respectively and live in Colletorto.",
"A. The child ’ s arrival in Italy",
"9. After trying to have a child and having unsuccessfully resorted to medically assisted reproduction techniques, the applicants put themselves forward as adoptive parents.",
"10. On 7 December 2006 the applicants obtained official authorisation from the Campobasso Minors Court to adopt a foreign child within the meaning of Law no. 184 of 1983, entitled “The Child ’ s Right to a Family” (hereafter, “the Adoption Act”), subject to the condition that the child ’ s age was to be compatible with the limits foreseen by the Act (see paragraph 63 below). The applicants state that they waited in vain for a child who was eligible for adoption.",
"11. They subsequently decided to try resorting to assisted reproduction techniques again and to a surrogate mother in Russia. To that end, they contacted a Moscow-based clinic. The first applicant stated that she travelled to Moscow, transporting from Italy the second applicant ’ s seminal fluid, duly conserved, which she handed in at the clinic.",
"A surrogate mother was found and the applicants entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos were implanted in the surrogate mother ’ s womb on 19 June 2010.",
"12. On 16 February 2011 the Russian clinic certified that the second applicant ’ s seminal fluid had been used for the embryos to be implanted in the surrogate mother ’ s womb.",
"13. The first applicant travelled to Moscow on 26 February 2011, the clinic having indicated that the child was due to be born at the end of the month.",
"14. The child was born in Moscow on 27 February 2011. On the same day the surrogate mother gave her written consent to the child being registered as the applicants ’ son. Her written declaration, bearing the same date and read aloud at the hospital in the presence of her doctor, the chief physician and the head of the hospital department, is worded as follows (English translation of the original Russian version):",
"“I, the undersigned... have given birth to a boy in the ... maternity hospital in Moscow. The child ’ s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb.",
"On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51(4) of the Family Code, I hereby give my consent for the above couple to be entered in the birth record and the birth certificate as parents of the child to whom I have given birth...”",
"15. In the days following the child ’ s birth, the first applicant moved with him into a flat in Moscow, rented by her in advance. The second applicant, who had remained in Italy, was able to communicate with her regularly via internet.",
"16. On 10 March 2011 the applicants were registered as the new-born baby ’ s parents by the Registry Office in Moscow. The Russian birth certificate, which indicated that the applicants were the child ’ s parents, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.",
"17. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow, with the birth certificate, in order to obtain the documents that would enable her to return to Italy with the child. The Italian Consulate issued the documents enabling the child to leave for Italy with the first applicant.",
"18. On 30 April 2011 the first applicant and the child arrived in Italy.",
"19. In a note of 2 May 2011 – which was not filed in the proceedings before the Court – the Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and Municipality that the paperwork in respect of the child ’ s birth contained false information.",
"20. A few days later the second applicant contacted the Colletorto municipality, requesting that the birth certificate be registered.",
"B. The reaction of the Italian authorities",
"21. On 5 May 2011 the prosecutor ’ s office opened criminal proceedings against the applicants, who were suspected of “misrepresentation of civil status” within the meaning of Article 567 of the Criminal Code, of “use of falsified documents” within the meaning of Article 489 of the Criminal Code and of the offence set out in section 72 of the Adoption Act, since they had brought the child to Italy in breach of the procedure provided for by the provisions on international adoption contained therein (see paragraph 67 below).",
"22. In parallel, on 5 May 2011, the Public Prosecutor ’ s Office at the Campobasso Minors Court requested the opening of proceedings to make the child available for adoption, since he was to be considered as being in a state of abandonment for the purposes of the law. On the same date the Minors Court appointed a guardian ad litem ( curatore speciale ) and opened proceedings to make the child available for adoption.",
"23. On 16 May 2011 the Minors Court placed the child under guardianship at the request of the Public Prosecutor. The child ’ s guardian asked the court to suspend the applicants ’ parental responsibility, in application of section 10 § 3 of the Adoption Act.",
"24. The applicants challenged the measures in respect of the child.",
"25. Following a request of the Minors Court on 10 May 2011, the applicants were visited by a team of social workers on 12 May 2011. Their report, dated 18 May 2011, indicated that the applicants were viewed positively and respected by their fellow citizens, and that they had a comfortable income and lived in a nice house. According to the report, the child was in excellent health and his well-being was self-evident, since he was being cared for by the applicants to the highest standards.",
"26. On 25 May 2011 the first applicant, assisted by her lawyer, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, transporting her husband ’ s seminal fluid. She stated that she entered into a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to be implanted with genetic material from the first applicant and her husband through the Vitanova Clinic in Moscow. The applicant explained that this practice was perfectly legal in Russia and had made it possible for her to obtain a birth certificate which identified the applicants as parents. In June or July 2010 the first applicant had been contacted by the Russian company, which informed her that a surrogate mother had been found, and she had given her consent to the medical procedure.",
"27. On 27 June 2011 the applicants were heard by the Minors Court. The first applicant stated that, after eight unsuccessful attempts at in vitro fertilisation, which had endangered her health, she had resorted to the Russian clinic, since it was possible in that country to use ova from a donor, which were subsequently implanted in the surrogate mother.",
"28. On 7 July 2011 the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child ’ s biological father.",
"29. On 11 July 2011 the Ministry of the Interior asked the Registry Office to refuse to enter the particulars of the birth certificate in the civil ‑ status register.",
"30. On 1 August 2011 the second applicant and the child underwent DNA testing. The result of these tests showed that there was no genetic link between them.",
"31. Following the outcome of these tests, the applicants sought an explanation from the Russian clinic. Months later, in a letter of 20 March 2012, the clinic ’ s management informed them that it had been surprised by the results of the DNA test. It stated that there had been an internal inquiry, since an error had clearly occurred, but it had proved impossible to identify the individual responsible for the error, given that there had been dismissals and recruitment of other staff in the meantime.",
"32. On 4 August 2011 the Registry Office of the Colletorto Municipality refused to register the Russian birth certificate. The applicants lodged an appeal with the Larino Court against this refusal. The subsequent proceedings are set out in paragraphs 46-48 below.",
"33. The Public Prosecutor asked the Larino Court to give the child a new identity and to issue a new birth certificate.",
"C. The subsequent proceedings before the minors courts",
"1. The decision of the Minors Court of 20 October 2011",
"34. As part of the proceedings to make the child available for adoption which were then pending before the Minors Court (see paragraph 22 above), the applicants asked a psychologist, Dr I., to prepare a report on the child ’ s well-being. The report drawn up by Dr I. on 22 September 2011, after four meetings with the child, indicates that the applicants – who were attentive to the child ’ s needs – had developed a deep emotional bond with him. The report indicated that the grandparents and other family members also surrounded the child with affection, and that he was healthy, lively and responsive. Dr I. concluded that the applicants were suitable parents for the child, both from a psychological perspective and in terms of their ability to educate him and bring him up. She added that possible removal measures would have devastating consequences for the child, explaining that he would go through a depressive phase on account of a sense of abandonment and the loss of the key persons in his life. In her opinion, this could lead to somatic symptoms and compromise the child ’ s psycho-physical development, and, in the long term, symptoms of psychotic pathology could emerge.",
"35. The applicants asked for the child to be placed with them, with a view to adopting him if necessary.",
"36. By an immediately enforceable decision of 20 October 2011, the Campobasso Minors Court ordered that the child be removed from the applicants, taken into the care of the social services and placed in a children ’ s home ( casa famiglia ).",
"37. The relevant passages of the Minors Court ’ s decision read as follows:",
"“...",
"In their evidence Mr Campanelli and Mrs Paradiso stated that Mrs Paradiso had travelled to Russia carrying her husband ’ s semen in a special container, and had there entered into an agreement with the company Rosjurconsulting. Under this agreement, Mrs Paradiso had delivered her husband ’ s semen to a pre-determined clinic. One or more eggs from an unknown female donor had been fertilised in vitro with this semen, and then implanted into another woman, whose identity is known and who had subsequently given birth to the child in question on 27 February 2011. In exchange, Mr Campanelli and Mrs Paradiso had paid a large amount of money. Mrs Paradiso stated that the woman who had given birth to the child had waived her rights to him and had consented to him being referred to on the birth certificate, drawn up in Russia, as the son of Mr Campanelli and Mrs Paradiso (a copy of the informed consent, given on 27 February 2011 by the woman who gave birth to the child, is on file in these proceedings).",
"A court-appointed expert witness was then instructed to establish whether the minor child was the biological son of Giovanni Campanelli. In her report the court-appointed expert witness, Ms [L.S.], concluded that the results obtained by means of typing of the DNA of Giovanni Campanelli and the DNA of the minor child [T.C.] rule out Giovanni Campanelli as the child ’ s biological father.",
"In today ’ s hearing Mr Campanelli and Mrs Paradiso referred to their previous evidence and Mrs Paradiso repeated that she had taken her husband ’ s semen to Russia to be used for the purpose of the intended fertilisation.",
"However, the conclusions of the court-appointed expert witness have not been challenged.",
"At the close of the hearing, the Public Prosecutor requested that the application by Mr Campanelli and Mrs Paradiso be refused, that the minor child be placed in the care of third parties and that a temporary guardian be appointed for him. The child ’ s guardian ad litem asked that the child be placed in care under section 2 of the Adoption Act and that a guardian be appointed. Mr Campanelli and Mrs Paradiso requested primarily that the court award them temporary care of the child with a view to subsequent adoption; in the alternative, they requested the suspension of these proceedings pending the criminal classification of the offences, and the suspension of the above-mentioned criminal proceedings against them and of the proceedings before the Campobasso Court of Appeal to challenge the refusal to register the child ’ s birth certificate; again in the alternative, they requested the suspension of these proceedings under section 14 of Law no. 184/1983 for the purpose of a possible repatriation of the minor child to Russia, or, failing that, for the child to be placed with them under section 2 of the cited law.",
"That being the case, the court finds that the statements by Mr Campanelli and Mrs Paradiso regarding the delivery to Russia of Giovanni Campanelli ’ s genetic material are not supported by any evidence. On the other hand, it has been established that the minor [T.C.] is neither the biological son of Donatina Paradiso, nor, given the evidence of the expert report, of Giovanni Campanelli. At the present time the only certainty is the identity of the woman who gave birth to the baby. The biological parents of the baby, that is, the man and the woman who provided the gametes, remain unknown.",
"In the light of this evidence, the present case cannot be viewed as a case of so-called gestational surrogacy, which is the case where the surrogate mother who gives birth to the baby has no genetic link to him or her, the fertilisation having taken place with the egg(s) of a third woman. Indeed, in order to be able to talk of gestational or traditional surrogacy (in the latter, the surrogate mother makes her own ovules available) there must be a biological link between the child and at least one of the two intended parents (in this specific case, Mr Campanelli and Mrs Paradiso), a biological link which, as has been seen, is non-existent.”",
"In the court ’ s view, the applicants had thus placed themselves in an unlawful situation:",
"“It follows that by bringing a baby to Italy, passing him off as their own son, in blatant infringement of the provisions of our legislation (Law no. 184 of 4 May 1983) governing inter-country adoption of children, Mr Campanelli and Mrs Paradiso have acted unlawfully. Besides any criminal offences which may have been committed (infringement of section 72(2) of Law no. 184/1983), which are not within the jurisdiction of this court, it is noted that the agreement entered into between Mrs Paradiso and the company Rosjurconsulting had unlawful elements since, given the terms of the agreement (the delivery of Mr Campanelli ’ s genetic material for the fertilisation of another woman ’ s ovules), it was in breach of the ban on the use of assisted reproductive technology (A.R.T.) of a heterologous type laid down by section 4 of Law no. 40 of 19 February 2004.",
"In any event, it is pointed out that despite being in possession of the authorisation for inter-country adoption issued by order of this court on 7 December 2006, Mr Campanelli and Mrs Paradiso, as has been stated, intentionally evaded the provisions of Law no. 184/1983, which provide not only that the intended adoptive parents must apply to an authorised body (section 31) but also for the involvement of the Commission for Inter-country Adoption (section 38), the only body competent to authorise entry and permanent residence of a foreign child in Italy (section 32).”",
"The court therefore found it necessary, first and foremost, to put an end to this unlawful situation:",
"“It is therefore necessary, above all, to prevent this unlawful situation from continuing, since to maintain it would be equivalent to ratifying unlawful conduct in open violation of the provisions of our legislation.",
"Accordingly, it is necessary to remove the minor child from Mr Campanelli and Mrs Paradiso and place him in an appropriate structure with a view to identifying a suitable couple to foster the child as soon as possible. The Social Services Department of the Municipality of Colletorto is therefore instructed to identify an appropriate structure and to place the child in it. The Italian legislation on adoption applies to this child in accordance with section 37a of Law No. 184/1983, there being no doubt that he is in Italy in a state of abandonment, having been deprived of his biological parents and other relatives, and the mother who gave birth to him having renounced him.",
"Admittedly, it cannot be denied that the child will in all likelihood suffer harm from being separated from Mr Campanelli and Mrs Paradiso. However, given the age of the child and the short time he has spent with them, the court cannot agree with the conclusions of the report by psychologist [Dr I.] ( instructed by Mr Campanelli and Mrs Paradiso), finding that it is certain that the child ’ s separation from them would entail devastating consequences. Indeed, according to the literature on this subject, the mere separation from the main care-givers is not a causal agent of a psychopathological state in a child unless other causal factors are present. The trauma caused by the separation from Mr Campanelli and Mrs Paradiso will not be irreparable, given that a search will begin immediately for a couple able to attenuate the consequences of the trauma, through a compensatory process that will encourage a new adaptation.",
"It is also pointed out that the fact that Mr Campanelli and Mrs Paradiso (and in particular Mrs Paradiso) have put up with the hardships and the difficulties of A.R.T (Mrs Paradiso has also stated that during one of these interventions her life was at risk) and have preferred, despite being in possession of an approval for inter-country adoption, to circumvent Italian legislation on this subject gives rise to the doubt and the fear that the minor child may be an instrument to fulfil a narcissistic desire of Mr Campanelli and Mrs Paradiso or to exorcise an individual or joint problem. In the light of the conduct of Mr Campanelli and Mrs Paradiso during the events under examination, all of this throws a consistent shadow over their possession of genuine affective and educational abilities and of the instinct of human solidarity which must be present in any person wishing to bring the children of others into their lives as their own children.",
"The separation of the minor child from Mr Campanelli and Mrs Paradiso thus corresponds to the best interests of the child.”",
"38. According to the applicants, the court ’ s decision was enforced on the same day, without their having been informed of the decision in advance.",
"2. The appeal against the decision of the Minors Court",
"39. The applicants lodged an appeal ( reclamo ) before the Campobasso Court of Appeal. They argued, inter alia, that the Italian courts could not contest the Russian birth certificate. They further requested that no measures be taken concerning the child while the criminal proceedings against them and the proceedings challenging the refusal to enter the birth certificate in the Italian civil-status register were pending.",
"3. The Campobasso Court of Appeal ’ s decision of 28 February 2012",
"40. By a decision of 28 February 2012, the Campobasso Court of Appeal dismissed the appeal.",
"The Court of Appeal found that the child T.C. was “in a state of abandonment” ( in stato di abbandono ) within the meaning of section 8 of the Adoption Act, as the applicants were not his parents. In those circumstances, the question of whether or not the applicants were criminally liable and whether or not there had been an error in the use of seminal fluid of unknown origin was not, in its view, relevant. In the Court of Appeal ’ s opinion, it was not appropriate to await the outcome of the criminal trial or of the proceedings brought by the applicants to challenge the refusal to enter the particulars of the birth certificate in the register. The Court of Appeal also considered that section 33 of Law no. 218/95 (the Private International Law Act) did not prevent the Italian courts from refusing to comply with certified information from a foreign State, and that there was no issue of lack of jurisdiction, since, according to section 37 bis of the Adoption Act, “ ... the Italian law governing adoption, fostering, and necessary measures in case of urgency shall be applicable to a foreign minor child who is in [Italy] in a state of abandonment” (cf. also Cass 1128/92)”.",
"41. No appeal to the Court of Cassation lay against that decision (see paragraph 68 below).",
"D. Preventive seizure of the birth certificate",
"42. In the meantime, on 30 October 2011 the public prosecutor at the Larino Court had ordered the preventive seizure of the Russian birth certificate, on the ground that it was an essential item of evidence. In the prosecutor ’ s view, in all probability the applicants had not only committed the offences with which they were charged, but they had attempted to conceal them. They had, according to him, inter alia, stated that they were the biological parents and had then corrected their versions of events as these were successively disproved.",
"43. The applicants challenged the preventive seizure order.",
"44. By a decision of 20 November 2012, the Campobasso Court dismissed the applicants ’ appeal on the ground of the strong suspicions that they had committed the offences in question. In particular, the court noted the following facts: the first applicant had spread a rumour that she was pregnant; she had gone to the Italian Consulate in Moscow and implied that she was the natural mother; she had subsequently admitted that the child had been born to a surrogate mother; she had stated to the carabinieri on 25 May 2011 that the second applicant was the biological father, which had been disproved by the DNA tests; she had thus made false statements; she had been very vague as to the identity of the genetic mother; the documents concerning the surrogate motherhood stated that the two applicants had been seen by the Russian doctors, which did not correspond to the fact that the second applicant had not travelled to Russia; the documents relating to the birth did not give any precise date. The court considered that the only certainty was that the child had been born and that he had been handed over to the first applicant against payment of almost 50,000 euros (EUR). In the court ’ s view, the hypothesis that the applicants had behaved illegally with a view to having the particulars of the birth certificate entered in the civil ‑ status register and to circumventing the Italian legislation thus appeared well-founded.",
"45. In November 2012 the Public Prosecutor transmitted the decision regarding the preventive seizure to the Minors Court and indicated that a conviction under section 72 of the Adoption Act would deprive the applicants of the possibility of fostering ( affido ) the child and of adopting him or other minors. In the Public Prosecutor ’ s view, there was therefore no other solution but to proceed with the adoption procedure for the child, and his temporary placement with a foster family had therefore been requested, in accordance with sections 8 and 10 of the Adoption Act. The Public Prosecutor repeated his request and emphasised that the child had been removed more than a year previously, and that he had since been living in a children ’ s home ( casa famiglia ), where he had developed meaningful relationships with the persons responsible for his care. He explained that the child had thus still not found a family environment to replace the one that had been illegally provided by the couple who had brought him to Italy. According to the Public Prosecutor, the child seemed destined for another separation, even more painful than that from the mother who had given birth to him and then from the woman who claimed to be his mother.",
"E. The proceedings brought by the applicants to challenge the refusal to enter the particulars of the birth certificate in the civil ‑ status register",
"46. An appeal having been lodged to contest the Registry Office ’ s refusal to enter the particulars of the Russian birth certificate in the civil ‑ status register, the Larino Court declined jurisdiction on 29 September 2011. The proceedings were subsequently resumed before the Campobasso Court of Appeal. The applicants insisted that the particulars of the Russian birth certificate be entered in the Italian register.",
"47. By an immediately enforceable decision of 3 April 2013, the Campobasso Court of Appeal ruled on the transcription of the birth certificate into the Italian register.",
"By way of introduction, the Court of Appeal dismissed the objection raised by the guardian to the effect that the applicants did not have standing to bring an action before that court; it acknowledged that the applicants had standing to bring proceedings in that they were referred to as the “parents” in the birth certificate that they wished to have entered in the civil-status register.",
"However, the Court of Appeal considered it clear that the applicants were not the biological parents and concluded that there had not therefore been a gestational surrogacy. It noted that the parties were in agreement that the Russian legislation presupposed a biological link between the child and at least one of the intended parents before the term surrogate motherhood could be used. It concluded that the birth certificate was fraudulent ( ideologicamente falso ) and in breach of Russian law. In the Court of Appeal ’ s view, given that there was nothing to show that the child had Russian citizenship, the applicants ’ argument that Italian law was inapplicable ran counter to section 33 of the Private International Law Act, which stated that the legal parent-child relationship was determined by the national law governing the child at the time of his or her birth.",
"The Court of Appeal added that it was contrary to public order to register the contested birth certificate, since it was fraudulent. It stated that although the applicants had pleaded their good faith, alleging that they were unable to explain why the second applicant ’ s seminal fluid had not been used in the Russian clinic, this made no difference to the situation and did not alter the fact that the second applicant was not the biological father.",
"48. In conclusion, the Court of Appeal held that it was legitimate to refuse to register the Russian birth certificate and to grant the Public Prosecutor ’ s request that a new birth certificate be issued. The Court of Appeal therefore ordered that a new birth certificate be issued, indicating that the child was the son of persons unknown, born in Moscow on 27 February 2011, and that he would be given a new name, determined in accordance with Presidential Decree no. 396/00.",
"F. The fate of the child",
"49. Following execution of the decision issued by the Minors Court on 20 October 2011, the child was placed in a children ’ s home for about fifteen months, in a location that was unknown to the applicants. All contact between the applicants and the child was prohibited. They were unable to obtain any news of him.",
"50. In January 2013 the child was placed in a family with a view to his adoption.",
"51. At the beginning of April 2013 the guardian asked the Minors Court to give the child a formal identity, so that he could be registered for school without complications. He stated that the child had been placed in a family on 26 January 2013, but that he did not have an identity. This “inexistence” had a significant impact on administrative matters, particularly with regard to deciding under what name the child was to be registered for school, for vaccination records, and for residence. While accepting that this situation corresponded to the aim of preventing the applicants from discovering the child ’ s whereabouts, for his own protection, the guardian explained that a temporary formal identity would enable the secrecy surrounding the child ’ s real identity to be maintained, while simultaneously enabling him to have access to public services; for the time being, he was entitled only to use emergency medical services.",
"52. The case file indicates that this request was granted by the Minors Court and that the child received a formal identity.",
"53. The Government have indicated that the child has now been adopted.",
"G. The outcome of the proceedings before the Minors Court",
"54. The proceedings to make the child available for adoption were resumed before the Minors Court of Campobasso (see paragraph 22 above). The applicants confirmed their opposition to the child ’ s placement with third persons. The guardian asked for a statement ruling that the applicants no longer had locus standi.",
"The Public Prosecutor asked the Minors Court not to declare the child available for adoption using the name originally given to him, on the ground that, in the meantime, he had opened a second set of proceedings requesting that the child be declared available for adoption under his new identity (child of unknown parents).",
"55. On 5 June 2013, the Minors Court held that the applicants no longer had standing to act in the adoption proceedings, given that they were neither the child ’ s parents nor members of his family within the meaning of section 10 of the Adoption Act. The court stated that it would settle the question of the child ’ s adoption in the context of the other set of adoption proceedings, referred to by the Public Prosecutor.",
"H. The outcome of the criminal proceedings brought against the applicants",
"56. No information has been provided by the parties concerning subsequent developments in the criminal proceedings brought against the applicants. It seems that those proceedings are still pending."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Italian law",
"1. Private International Law Act",
"57. Under section 33 of the Private International Law Act 1995 (Law no. 218), the legal parent-child relationship is determined by the national law governing the child at the time of his or her birth.",
"2. Simplification of Civil Status Act",
"58. Presidential Decree no. 396 of 3 November 2000 (Simplification of Civil Status Act) provides that declarations of birth concerning Italian nationals which have been drawn up abroad must be transmitted to the consular authorities (section 15). The consular authorities transmit a copy of the documents, for the purpose of their entry in the civil-status register, to the municipality in which the individual concerned intends to take up residence (section 17). Documents drawn up abroad cannot be entered in the register if they are contrary to public order (section 18). In order to have full legal force in Italy, foreign decisions ( provvedimenti ) in respect of persons ’ capacity or the existence of family relationships must not be contrary to public order (section 65).",
"3. Medically Assisted Reproduction Act",
"59. Section 4 of Law no. 40 of 19 February 2004 (the Medically Assisted Reproduction Act) prohibited the use of heterologous assisted reproduction techniques. Failure to comply with this provision entailed a financial penalty ranging from EUR 300,000 to EUR 600,000.",
"60. In judgment no. 162 of 9 April 2014, the Constitutional Court found these provisions to be contrary to the Constitution where the above prohibition concerned a heterosexual couple suffering from proven and irreversible sterility or infertility.",
"61. In the same judgment, the Constitutional Court held that the prohibition on surrogate motherhood imposed by section 12 § 6 of the Act, was, on the contrary, legitimate. That provision makes it an offence to carry out, organise or advertise the commercialisation of gametes, embryos or surrogate motherhood. The penalties incurred are imprisonment, ranging from three months to two years, and a fine, ranging from EUR 600,000 to 1,000,000.",
"62. In judgment no. 96 of 5 June 2015, the Constitutional Court again examined the prohibition on using heterologous reproduction techniques and held that the relevant provisions were unconstitutional in respect of couples who are fertile but are carriers of serious genetically transmitted diseases.",
"4. The relevant provisions in respect of adoption",
"63. The provisions concerning the procedure for adoption are set out in Law no. 184/1983 (“the Adoption Act”), as amended by Law no. 149 of 2001, entitled “The Child ’ s Right to a Family”.",
"Section 2 of the Act provides that a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, if possible including other minor children, or with a single person, or with a family-type community, for the purposes of providing him or her with support, an upbringing and education. If it is not possible to provide him with a satisfactory family environment, a minor may be placed in a public or private children ’ s home, preferably in the area in which he has been living.",
"Section 5 of the Act provides that the family or person with whom the minor has been placed must provide him or her with support, an upbringing and education, taking account of instructions from the guardian and in compliance with the judicial authority ’ s directions. In any event, the foster family exercises parental responsibility with regard to relations with the school and the national health service. The foster family must be heard in the proceedings on placement and the proceedings concerning the order that the child is available for adoption.",
"Section 6 of the Act lays down age limits for adopting. The difference in age between the child and the adopting parent must be a minimum of eighteen years and a maximum of forty-five years, a limit which may be extended to fifty-five years for the second adopting parent. The minors courts may derogate from these age limits where they consider that the fact of not proceeding with the child ’ s adoption would be harmful to him or her.",
"Furthermore, section 7 provides that adoption is possible for minors who have been declared available for adoption.",
"Section 8 provides that “the Minors Court may, even of its own motion, declare ... a minor available for adoption if he or she is in a state of abandonment in the sense of being deprived of all emotional or material support from the parents or the members of his or her family responsible for providing such support other than in temporary cases of force majeure ”. Section 8 continues: “A minor shall continue to be considered in a state of abandonment ... even if he or she is in a children ’ s home or has been placed in a foster home.” Lastly, section 8 provides that a case of force majeure shall be deemed to have ceased where the parents or other members of the minor ’ s family responsible for providing support refuse assistance from the authorities and the court considers their refusal unjustified. The fact that a minor is in a state of abandonment may be reported to the authorities by any member of the public or noted by a court of its own motion. Furthermore, any public official and any member of the minor ’ s family who is aware that a child is in a state of abandonment must report the situation to the authorities. Children ’ s homes must keep the judicial authorities regularly informed of the situation of minors whom they take into their care (section 9).",
"Section 10 then provides that, pending a minor ’ s placement in a foster home before adoption, the court may order any temporary measure which is in the minor ’ s interests, including, if necessary, the suspension of parental responsibility.",
"Sections 11 to 14 provide that enquiries shall be made so as to clarify the minor ’ s situation and determine whether he or she is in a state of abandonment. In particular, section 11 provides that where, in the course of these enquiries, it transpires that the child does not have contact with any member of his or her family up to the fourth degree, the court may issue a declaration that he or she is available for adoption, unless an adoption application has been made within the meaning of section 44 of the Act.",
"If, at the end of the procedure provided for in the above sections, the minor is still in a state of abandonment within the meaning of section 8, the Minors Court shall declare him or her available for adoption if: (a) the parents or other members of the family have not appeared in the course of the proceedings; (b) it is clear from interviews with them that they are still failing to provide the child with emotional and material support and are unable to remedy the situation; and (c) measures ordered under section 12 have not been implemented through the parents ’ fault (section 15). Section 15 also provides that a declaration that a minor is available for adoption shall be made in a reasoned decision of the Minors Court sitting in chambers, after it has heard the Public Prosecutor, the representative of the children ’ s home in which the minor has been placed or any foster parent, the guardian, and the minor if he or she is aged over twelve years or, if aged under twelve, where this is deemed necessary.",
"Section 17 provides that an objection to a decision declaring a child available for adoption must be lodged within thirty days of the date of notification to the requesting party.",
"Under section 19, parental responsibility is suspended while a minor is available for adoption.",
"Lastly, section 20 provides that a minor shall no longer be available for adoption if he or she has been adopted or has come of age. Moreover, a declaration that a child is available for adoption may be annulled, either by the court of its own motion or at the request of the parents or the Public Prosecutor, if the conditions laid down in section 8 have in the meantime ceased to apply. However, if the minor has been placed with a family with a view to adoption ( affidamento preadottivo ) under sections 22-24, the declaration that he or she is available for adoption cannot be annulled.",
"64. Section 44 provides for certain cases of special adoption: adoption is possible for minors who have not yet been declared available for adoption. In particular, section 44 (d) authorises adoption when it is impossible to place the child in alternative care pending adoption.",
"65. Section 37 bis of this Act provides that Italian law applies to foreign minors who are in Italy and who are in “a state of abandonment” with regard to adoption, placement and urgent measures.",
"66. In order to be able to adopt a foreign minor, persons wishing to adopt must contact an organisation that is authorised to look for a child (section 31) and the Commission for International Adoptions (section 38). The latter is the only body that is competent to authorise the entry and permanent residence of a foreign minor in Italy (section 32). Once the minor has arrived in Italy, the minors court orders that the information on the adoption decision be transcribed into the civil-status register.",
"67. Under section 72 of the Act, any person who – in violation of the provisions set out in paragraph 66 above – brings into the territory of the State a foreign minor, in order to obtain money or other benefits, and in order that the minor be entrusted permanently to Italian citizens, is committing a criminal offence punishable by a prison term of between one and three years. This sanction also applies to those persons who, in exchange for money or other benefits, accept the “placement” of foreign minors on a permanent basis. Conviction for this offence entails disqualification from fostering children ( affido ) and from becoming a guardian.",
"5. Appeal on points of law under Article 111 of the Constitution",
"68. Under Article 111 § 7 of the Italian Constitution, appeals to the Court of Cassation to allege violations of the law are always possible against judgments or measures affecting personal freedom. The Court of Cassation extended the scope of this remedy to civil proceedings where the impugned decision has a substantial impact on situations ( decisoria ) and where it cannot be varied or revoked by the same court which delivered it ( definitiva ).",
"Decisions concerning urgent measures with regard to a child in a state of abandonment, taken by the minors court on the basis of section 10 of the Adoption Act (Articles 330 et seq. of the Civil Code, Article 742 of the Code of Civil Procedure) may be varied or revoked. They may be the subject of a complaint before the court of appeal. No appeal on points of law can be made in respect of decisions that may be varied and revoked at any point (Court of Cassation, Section I, judgment of 18 October 2012, no. 17916).",
"6. The law establishing the minors courts",
"69. Royal Decree no. 1404 of 1934, which subsequently became Law no. 835 of 1935, established the minors courts. This law has since been amended on several occasions.",
"Under section 2, all minors courts are made up of an appeal court judge, a judge of first-instance and two lay judges. The latter are chosen from specialists in biology, psychiatry, criminal anthropology, pedagogy or psychology.",
"B. The Court of Cassation ’ s case-law",
"1. Prior to the hearing before the Grand Chamber",
"70. The Court of Cassation (Section I, judgment no. 24001 of 26 September 2014) ruled in a civil case concerning two Italian nationals who had travelled to Ukraine to have a child with the help of a surrogate mother. The Court of Cassation held that the decision to take the child into care was lawful. Having noted the absence of genetic links between the child and the intended parents, the Court of Cassation concluded that the impugned situation was illegal under Ukrainian law, since the latter required a biological link with one of the intended parents. The Court of Cassation reiterated that the prohibition on surrogate motherhood was still in force in Italy. It explained that the prohibition on surrogate motherhood in Italian law was a criminal-law one, and was intended to protect the surrogate mother ’ s human dignity and the practice of adoption. It added that only a legally recognised adoption, organised in accordance with the regulations, would allow non-genetic parenthood to be validated. It stated that the assessment of the child ’ s best interests had been carried out in advance by the legislature, and the court had no discretion in this matter. It concluded that there could be no conflict of interest with the child ’ s interests where the court applied the domestic law and refused to take into account a legal parent-child relationship established abroad following a gestational surrogacy arrangement.",
"2. Subsequent to the Grand Chamber hearing",
"71. The Court of Cassation (Section V, judgment no. 13525 of 5 April 2016) ruled in criminal proceedings against two Italian nationals who had travelled to Ukraine in order to conceive a child and had used an ova donor and a surrogate mother. Ukrainian law required that one of the two parents be the biological parent. The acquittal judgment delivered at first instance had been challenged by the public prosecutor before the Court of Cassation. That court dismissed the public prosecutor ’ s appeal on points of law, thus confirming the acquittal, which had been based on the finding that the defendants had not been in breach of section 12 § 6 of Law no. 40 of 19 February 2004 (the Medically Assisted Reproduction Act), given that they had had recourse to an assisted reproduction technique which was legal in the country in which it was practised. In addition, the Court of Cassation considered that the fact that the defendants had submitted a foreign birth certificate to the Italian authorities did not constitute the offence of “making a false statement as to identity” (Article 495 of the Criminal Code) or “falsifying civil status” (Article 567 of the Criminal Code), since the certificate in question was legal under the law of the issuing country.",
"72. The Court of Cassation (Section I, judgment no. 12962/14 of 22 June 2016) ruled in a civil case in which the claimant had asked to be able to adopt her companion ’ s child. The two women had travelled to Spain to use assisted reproduction techniques that were forbidden in Italy. One of them was the “mother” under Italian law, and the seminal fluid had been provided by an unknown donor. The claimant had been successful at first and second instance. On an appeal by the public prosecutor, the Court of Cassation dismissed the latter ’ s submissions, and thus accepted that a child born through assisted reproduction techniques within a same-sex female couple could be adopted by the woman who had not given birth to that child. In reaching that conclusion the Court of Cassation took into account the stable emotional bond between the claimant and the child, and the best interests of the minor child. The Court of Cassation referred to section 44 of the Adoption Act, which provides for special circumstances.",
"C. Russian law",
"73. At the relevant time, namely until February 2011, when the child was born, the only relevant legislation in force was the Family Code of 29 December 1995. That Code provided that a married couple could be recognised as the parent couple of a child born to a surrogate mother where the latter has given her written consent (Article 51 § 4 of the Family Code). The Family Code was silent on the question whether or not the intended parents should have a biological link to the child in the event of a gestational surrogacy agreement. Implementing Decree no. 67, which was adopted in 2003 and remained in force until 2012, was also silent on this point.",
"74. Subsequent to the child ’ s birth, the Basic Law on the Protection of Citizens ’ Health, which was enacted on 21 November 2011 and entered into force on 1 January 2012, introduced provisions to regulate medical activities, including assisted reproduction. Section 55 of this law defines gestational surrogacy as the fact of bearing and handing over a child on the basis of a contract concluded between the surrogate mother and the intended parents, who provide their own genetic material.",
"Decree no. 107, issued by the Minister of Health on 30 August 2012, defines gestational surrogacy as a contract entered into between the surrogate mother and the intended parents who have used their genetic material for the conception.",
"III. RELEVANT INTERNATIONAL LAW AND PRACTICE",
"A. The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents",
"75. The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents was concluded on 5 October 1961. It applies to public documents – as defined in Article 1 – which have been drawn up in the territory of one Contracting State and which must be produced in the territory of another Contracting State.",
"Article 2",
"“Each Contracting State shall exempt from legalisation documents to which the present Convention applies and which have to be produced in its territory. For the purposes of the present Convention, legalisation means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears.”",
"Article 3",
"“The only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears, is the addition of the certificate described in Article 4, issued by the competent authority of the State from which the document emanates.”",
"Article 5",
"“The certificate shall be issued at the request of the person who has signed the document or of any bearer. When properly filled in, it will certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears. The signature, seal and stamp on the certificate are exempt from all certification.”",
"The explanatory report on this Convention indicates that the certificate does not attest to the truthfulness of the content of the original document. This limitation on the legal effects deriving from the Hague Convention is intended to preserve the right of the signatory States to apply their own choice-of-law rules when they are required to determine the probatory force to be attached to the content of the certified document.",
"B. The United Nations Convention on the Rights of the Child",
"76. The relevant provisions of the United Nations Convention on the Rights of the Child, concluded in New York on 20 November 1989, read as follows:",
"Preamble",
"“The States Parties to the present Convention,",
"...",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,",
"...",
"Have agreed as follows:",
"...",
"Article 3",
"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"...",
"Article 7",
"1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.",
"...",
"Article 9",
"1. States Parties shall ensure that a child shall not be separated from his or her parents against their will...",
"Article 20",
"1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.",
"2. States Parties shall in accordance with their national laws ensure alternative care for such a child.",
"3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.",
"Article 21",
"States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"(b) Recognize that inter-country adoption may be considered as an alternative means of child ’ s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin;",
"(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;",
"(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;",
"(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.",
"...”",
"77. In its General Comment no. 7 (2005) on implementing child rights in early childhood, the Committee on the Rights of the Child wished to encourage the States Parties to recognise that young children are holders of all rights enshrined in the Convention on the Rights of the Child and that early childhood is a critical period for the realisation of these rights. In particular, the Committee refers to the best interests of the child:",
"“13. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children ’ s rights:",
"(a) Best interests of individual children. All decision-making concerning a child ’ s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children. States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child ’ s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences;",
"...”",
"C. The Hague Convention on Protection of Children and Co ‑ operation in Respect of Intercountry Adoption",
"78. The relevant provisions of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, concluded in The Hague on 29 May 1993, are worded as follows:",
"Article 4",
"“1. An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin -",
"(a) have established that the child is adoptable;",
"(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child ’ s best interests;",
"(c) have ensured that",
"(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,",
"(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,",
"(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and",
"(4) the consent of the mother, where required, has been given only after the birth of the child; and",
"(d) have ensured, having regard to the age and degree of maturity of the child, that",
"(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,",
"(2) consideration has been given to the child ’ s wishes and opinions,",
"(3) the child ’ s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and",
"(4) such consent has not been induced by payment or compensation of any kind.”",
"D. The principles adopted by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences of the Council of Europe",
"79. The Council of Europe Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), which preceded the present Steering Committee on Bioethics, published in 1989 a series of Principles. Principle 15, on “Surrogate Motherhood”, is worded as follows:",
"“ 1. No physician or establishment may use the techniques of artificial procreation for the conception of a child carried by a surrogate mother.",
"2. Any contract or agreement between [the] surrogate mother and the person or couple for whom she carried the child shall be unenforceable.",
"3. Any action by an intermediary for the benefit of persons concerned with surrogate motherhood as well as any advertising relating thereto shall be prohibited.",
"4. However, States may, in exceptional cases fixed by their national law, provide, while duly respecting paragraph 2 of this principle, that a physician or an establishment may proceed to the fertilisation of a surrogate mother by artificial procreation techniques, provided that:",
"a. the surrogate mother obtains no material benefit from the operation;",
"b. the surrogate mother has the choice at birth of keeping the child.”",
"E. The work of the Hague Conference on Private International Law",
"80. The Hague Conference on Private International Law has examined the issues of private international law concerning the status of children, particularly with regard to the recognition of parentage. Following an extensive consultation process which resulted in a comparative report (Preliminary Documents nos. 3B and 3C of 2014), in April 2014, the Council on General Affairs and Policy agreed that the work should be continued to explore the feasibility of preparing a multilateral instrument. Preliminary Document no. 3A of February 2015, entitled “The Parentage/Surrogacy project: an updating note” describes the important human-rights concerns raised by the current situation regarding international surrogacy arrangements, and the increasing prevalence of such arrangements. The Hague Conference thus considered that there is now a pressing human-rights requirement, including from the perspective of children ’ s rights, for its work in this area.",
"IV. COMPARATIVE LAW MATERIAL",
"81. In the cases of Mennesson v. France (no. 65192/11, §§ 40-42, ECHR 2014 (extracts) and Labassee v. France (no. 65941/11, §§ 31-33, 26 June 2014), the Court outlined the results of a comparative-law analysis covering thirty-five States Parties to the Convention other than France. It showed that surrogacy is expressly prohibited in fourteen of those States; in ten other States, in which there are no regulations on gestational surrogacy, it is either prohibited under general provisions or not tolerated, or the question of its legality is uncertain; it is authorised in seven of these thirty ‑ five member States (subject to compliance with certain strict conditions).",
"In thirteen of these thirty-five States it is possible for the intended parents to obtain legal recognition of the parent-child relationship between them and a child born from gestational surrogacy carried out legally in another country.",
"THE LAW",
"I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER",
"82. In the proceedings before the Grand Chamber, both parties submitted observations concerning the complaints that had been declared inadmissible by the Chamber.",
"83. The Government submitted that the applicants had not exhausted the domestic remedies in so far as they complained about the refusal to recognise the foreign birth certificate. The applicants had not appealed to the Court of Cassation against the decision issued by the Campobasso Court of Appeal on 3 April 2013, by which it confirmed the refusal to register the birth certificate.",
"84. The Court notes that the Chamber allowed the objection of failure to exhaust domestic remedies with regard to the complaint that it had been impossible to have the details of the Russian birth certificate registered in Italy. In consequence, that complaint was declared inadmissible (see § 62 of the Chamber judgment). It follows that this complaint falls outside the scope of the examination by the Grand Chamber since, according to the Court ’ s settled case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII).",
"85. The applicants asked the Grand Chamber to take into account the complaints submitted by them on behalf of the child, since they were relevant to the merits (see Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; K. and T. v. Finland, cited above, § 141). The best interests of the child were at the heart of the case, yet they had not been taken into account at all by the national authorities.",
"86. In this connection, the Court notes that the Chamber found that the applicants did not have the standing to act before the Court on behalf of the child and it dismissed the complaints raised on his behalf as being incompatible ratione personae (see §§ 48-50 of the Chamber judgment). Accordingly, this part of the application is not within the scope of the case before the Grand Chamber (see K. and T. v. Finland, cited above, § 141).",
"87. Nonetheless, the question whether the best interests of the child are to be taken into consideration in examining the complaints raised by the applicants on their own behalf is an issue which forms part of the dispute before the Grand Chamber.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS",
"A. The parties ’ submissions",
"1. The Government",
"88. The Government raised two preliminary objections.",
"89. First, they alleged that the applicants had not exhausted domestic remedies in that they had not challenged the decision by the Minors Court of 5 June 2013 denying them standing to take part in the adoption proceedings. The Government argued that the remedies available under Italian law were effective.",
"90. Secondly, the Government asked the Court to dismiss the application as incompatible ratione personae, on the ground that the applicants did not have locus standi before the Court.",
"2. The applicants",
"91. The applicants pointed out that the Chamber had already ruled on these objections and had dismissed them. With particular regard to the objection that they had failed to exhaust domestic remedies in relation to the decision of 5 June 2013 denying them standing to take part in the adoption proceedings, the applicants stressed that when the Minors Court excluded them from the proceedings, more than twenty months had elapsed since the day that the child had been removed. The applicants considered that the passage of time had made the child ’ s return perfectly illusory, given that he now lived with another family. They further noted that the Government had not provided any judicial precedent in support of their argument.",
"B. The Court ’ s assessment",
"92. The Court notes that the objections raised by the Government have already been examined by the Chamber (see §§ 55-64 of the Chamber judgment).",
"93. It notes that the Chamber dismissed them (see §§ 64 and 57 respectively of the Chamber judgment) and that the Government have repeated these objections on the basis of the same arguments. The Court considers that with regard to these two objections there is nothing to warrant departing from the Chamber ’ s conclusions.",
"94. In conclusion, the Government ’ s objections must be dismissed.",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"95. The applicants alleged that the measures taken by the Italian authorities in respect of the child, which resulted in the latter ’ s permanent removal, had infringed their right to respect for private and family life, guaranteed by Article 8 of the Convention.",
"96. The Government contested that argument.",
"97. The relevant parts of Article 8 of the Convention provide:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. The Chamber judgment",
"98. After having declared inadmissible the complaint raised by the applicants on behalf of the child, and also their complaint based on the refusal to recognise the birth certificate issued in Russia, the Chamber focused on the measures which had led to the child ’ s permanent removal.",
"As the birth certificate had not been recognised under Italian law, the Chamber considered that there was no legal relationship strictly speaking between the applicants and the child. However, the Chamber concluded that there had existed a de facto family life within the meaning of Article 8. In reaching that conclusion, it took into account the fact that the applicants had shared with the child the first important stages of his young life, and that they had acted as parents towards the child. In addition, the Chamber considered that the second applicant ’ s private life was also at stake, given that, at domestic level, he had sought to confirm the existence of a biological link with the child through a DNA test. In conclusion, the Chamber held that the contested measures amounted to an interference in the de facto family life existing between the applicants and the child (see §§ 67-69 of the Chamber judgment), and also in the second applicant ’ s private life (see § 70 of the Chamber judgment).",
"99. Further, noting that the courts had applied Italian law to determine the child ’ s parentage and had concluded that the latter had been “in a state of abandonment” in the absence of a genetic link with the applicants, the Chamber found that the national courts had not taken an unreasonable decision. In consequence, the Chamber accepted that the interference had been “in accordance with the law” (see § 72 of the Chamber judgment).",
"100. The Chamber then held that the measures taken in respect of the child had pursued the aim of “prevention of disorder”, in so far as the applicants ’ conduct was contrary to Italian legislation on international adoption and on medically assisted reproduction. In addition, the measures in question had been intended to protect the child ’ s “rights and freedoms” (see § 73 of the Chamber judgment).",
"101. Having acknowledged the existence of a family life, the Chamber assessed jointly the private interests of the applicants and the best interests of the child, and weighed them up against the public interest. It was not convinced of the adequacy of the elements relied on by the Italian authorities in concluding that the child ought to be taken into the care of the social services. The Chamber based its reasoning on the principle that the removal of a child from the family setting is an extreme measure to which recourse should be had only as a very last resort, to fulfil the aim of protecting a child who is faced with immediate danger (in this regard, the Chamber referred to the following judgments: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010; Y.C. v. the United Kingdom, no. 4547/10, §§ 133-138, 13 March 2012; and Pontes v. Portugal, no. 19554/09, §§ 74-80, 10 April 2012). On the basis of the evidence in the file, the Chamber held that the national courts had taken decisions without any specific assessment of the child ’ s living conditions with the applicants, and of his best interests. Accordingly, it concluded that there had been a violation of Article 8 of the Convention on the ground that the national authorities had failed to strike the fair balance that ought to be maintained between the general interest and the private interests at stake (see §§ 75-87 of the Chamber judgment).",
"B. The parties ’ observations",
"1. The applicants",
"102. The applicants stated at the outset that the Court was required to rule solely on the disputed measures taken by the Italian authorities in respect of the child, and then only on the basis of Article 8 of the Convention, for the purpose of determining whether there had been a violation of the applicants ’ private and family life. In their view, given the Chamber ’ s decision to declare inadmissible the complaint concerning the refusal to register the child ’ s Russian birth certificate in Italy, the Court was not required to rule on whether a State ’ s decisions to authorise or prohibit the practice of gestational surrogacy on its territory, or the conditions for recognition of a parent-child relationship in respect of children legally conceived in another country, were compatible with the Convention.",
"103. The applicants argued that the ties which bound them to the child amounted to family life, coming within the scope of Article 8 of the Convention. They referred to the Court ’ s case-law in this regard.",
"104. They submitted that the family life created between them and the child born to a surrogate mother was in accordance with Russian law as applicable at the relevant time. It was therefore based on a legal tie of lawful parenthood, attested by the birth certificate issued by the competent authorities. The lawfulness of this legal parent-child tie was not affected by the fact that it had transpired that there was no biological father-child relationship binding the intended father and the child, since the presence of such a biological tie had not been required by Russian law at the time.",
"105. In the applicants ’ view, the parental authority exercised by them in respect of the child – and, in consequence, the existence of a legal parent-child relationship – had been recognised by the Italian authorities, in that those authorities had suspended and revoked it.",
"106. The child had been born as the result of a serious and duly considered parental project. The couple had demonstrated their attachment to the child even before his birth (the applicants referred to Anayo v. Germany, no. 20578/07, § 61, 21 December 2010) and had taken steps to make an effective family life possible. The applicants stated that, following the child ’ s birth, the first applicant had rapidly taken him into her care and had taken up residence with him in a flat in Moscow, forming strong emotional bonds. On his arrival in Italy, the child lived with the applicants in an environment which, both materially and emotionally, was welcoming, secure and conducive to his harmonious development. The applicants pointed out that the family had lived together for eight months, including six months in Italy. Although this period was relatively short, it corresponded to the first important stages in the child ’ s young life. The applicants also pointed out that the shortness of the period in question had not resulted from any decision on their part, given that the abrupt termination of their cohabitation arose solely from the measures taken by the Italian authorities.",
"107. The applicants added that the absence of a biological link could not suffice to preclude the existence of a family life. Furthermore, they stated that they had been convinced that there existed a biological link between the second applicant and the child and that there was no reason to doubt their good faith. In any event, the clinic ’ s error entailed no legal consequences with regard to the lawfulness of the parent-child relationship established in Russia since, at the relevant time, Russian law did not require that intended parents provide their own genetic material. Accordingly, under the applicable rules at the time, the gestational surrogacy arrangement entered into by the applicants was entirely legal under Russian law. The applicants submitted that it had only been since 1 January 2012, when Federal Law no. 323 FZ of 21 November 2011 entered into force, that intended parents were forbidden from using a gamete provider.",
"108. The applicants considered that the measures adopted by the Italian authorities amounted to an interference in their family life. In their opinion, that interference had a formal basis in law, as the impugned measures had been taken under the provisions of the Italian Adoption Act. However, these measures resulted from an arbitrary analysis by the domestic courts, in so far as they had concluded that the child had been “in a state of abandonment”. The applicants also submitted that although the practice of gestational surrogacy was prohibited by the Medically Assisted Reproduction Act (sections 6 and 14), criminal proceedings had nonetheless never been taken against surrogate mothers or intended parents. In the absence of an extraterritoriality clause, gestational surrogacy arrangements entered into legally in another State could not, in their view, be prosecuted in the Italian courts. Given that it was impossible to prosecute gestational surrogacy as such, other provisions were used as the basis for criminal proceedings. This was the case for the applicants, who had faced prosecution since 5 May 2011 for falsifying civil status (Article 567 of the Criminal Code), use of falsified documents (Article 489 of the Criminal Code) and breach of the provisions of the Adoption Act.",
"109. The applicants contested the argument that the legitimate aim of the measures in question had been to protect the rights and freedoms of the child. The Italian courts had based their decisions exclusively on the illegality of the situation created by the applicants and had confined themselves to asserting – with no regard to the Russian legislation – that the surrogacy arrangement in Russia had been contrary to Italian law. Thus, the primary aim of the Minors Court had been to prevent the continuation of the illegal situation. The applicants considered that the decisions of that court indicated solely a wish to punish them for their conduct. The child ’ s interests were mentioned merely to assert that the impact of the impugned measures on him would be minimal.",
"110. As to the necessity of those measures, the applicants noted that although recourse to a surrogacy arrangement raised sensitive ethical questions, that consideration was not a valid ground for a “carte blanche justifying any measure”. Although the States enjoyed a wide margin of appreciation in authorising or prohibiting the practice of gestational surrogacy arrangements on their territory, they considered that this was not the subject of the present application. The Court was required in the present case to determine whether the measures resulting in the child ’ s irreversible removal had struck a fair balance between the interests at stake, namely those of the applicants, those of the child, and those of public order. From that standpoint, the applicants considered it appropriate to bear in mind that in all decisions concerning a child, his or her best interests ought to be the primary consideration. Thus, the immediate and irremediable severing of family ties had been held to be consistent with Article 8 only in circumstances where the children concerned were exposed to serious and sustained risks to their health and wellbeing. However, that had not been the situation here, according to the applicants, who submitted that the child ’ s best interests had not been taken into consideration by the national authorities at any point.",
"111. The applicants argued that their interests and those of the child had converged on the date that the impugned measures were implemented. These measures had destroyed the family unit ’ s existence and had led to an irreversible severing of family ties, with irremediable consequences, in the absence of circumstances justifying that outcome. The Minors Court had refrained from examining the actual conditions of the child ’ s life, and had presumed that he was deprived of emotional or material support from the parents. In the applicants ’ view, the domestic courts had expressed doubt as to their emotional and educative capabilities solely on the basis of the unlawfulness of their conduct, and had held that they had resorted to a gestational surrogacy arrangement on account of their narcissism. The applicants pointed out, however, that they had previously been assessed as fit to become adoptive parents by those same authorities. Moreover, the social workers, acting on an instruction by the Minors Court, had drawn up a report that was highly favourable to continuation of joint life with the child. There had been clear inadequacies in the decision-making process which led to the contested measures. Thus, the applicants considered that they had been held to be incapable of bringing up and loving the child solely on the basis of presumptions and inferences, without any expert report having been ordered by the courts.",
"112. The applicants also pointed out that the authorities had not considered possible alternatives to taking the child into care on an irreversible basis.",
"113. They explained that on 20 October 2011 social-services employees arrived at the home of the applicants, who had not been informed of the court ’ s decision, and had taken away the child. This operation had given rise to fear and distress. Thus, even at the point of executing the measures, the authorities ’ actions had been disproportionate.",
"114. Lastly, the applicants emphasised that the Italian authorities had taken no steps to preserve the relationship between them and the child with a view to maintaining the possibility of rebuilding the family; on the contrary, they had forbidden any contact with the child and had placed him in an unknown location. For the applicants, the impact of those measures had been irremediable.",
"115. The applicants asked the Court to hold that there had been a violation of Article 8 of the Convention. While aware that a long period of time had elapsed since the child was taken into care, and that it was in the child ’ s interest not to be subjected to a further change in his family situation, the applicants considered that the award of a sum by way of just satisfaction would not be sufficient. They sought to resume contact with the child.",
"2. The Government",
"116. The Government submitted that the Chamber had interpreted Article 8 § 1 of the Convention too broadly, and Article 8 § 2 too restrictively.",
"117. Referring to paragraph 69 of the Chamber judgment, in which the Chamber had concluded that a de facto family life existed between the applicants and the child, the Government considered that the Chamber ’ s assertion would have been valid if the tie between the applicants and the child had been a genuine biological one (even if only on the father ’ s side) established by a legally valid birth certificate, and above all if the duration of cohabitation were sufficient to establish the existence of a genuine family life shared by parents and child and the real exercise of parental responsibility. The Government noted, however, that neither of the applicants had a biological link to the child. They concluded that family life had never begun in the present case.",
"118. The impugned birth certificate also contravened public order in that it referred to the parents as the “biological parents” which, according to the Government, was untrue. The Government also disagreed with the applicants ’ argument that the birth certificate issued by the Russian authorities had been in accordance with Russian law. They explained that Russian legislation specifically required the existence of a biological tie between the child and at least one of the intended parents. Indeed, this point had been taken into consideration by the Campobasso Court of Appeal when it decided not to authorise registration of the birth certificate (judgment of 3 April 2013).",
"119. The Government further submitted that in 2011 the applicants no longer met the age criteria that would have enabled them to adopt the child in question. They added that de facto family life could not be founded on an unlawful situation such as that brought about by the applicants, who could have adopted a child, given that they had obtained the relevant authorisation to adopt in 2006. The applicants could have chosen not to break the law.",
"120. Moreover, the Government pointed out that, under the Court ’ s case-law, Article 8 did not guarantee either the right to found a family or the right to adopt.",
"121. The Government accused the applicants of having taken the responsibility of bringing to Italy a child who was completely unrelated to them, in breach of the relevant legislation. Their actions had been deliberate, and the fact that they had entered into a contract to purchase a newborn baby had compromised their position from the outset. The Government could not envisage any measure which could render this situation lawful.",
"122. Furthermore, the Government argued that the State enjoyed a wide margin of appreciation with regard to surrogate motherhood and assisted reproduction techniques. The transportation of the second applicant ’ s seminal fluid was in breach of the Medically Assisted Reproduction Act and Legislative Decree no. 191/2007 implementing Directive 2004/23/EC on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. In addition, having regard to the fact that the child had no biological ties to the applicants, the Government expressed doubts as to the validity of the consent given by the surrogate mother and to the lawfulness of the protocol followed in Russia.",
"123. Part of the Government ’ s observations focused on the issue of non-recognition of the foreign birth certificate (a complaint declared inadmissible by the Chamber); they pointed out that, under the Italian Civil Code, the only possible biological mother was the woman who had given birth to the child, which was not the case here.",
"124. As to the measures to remove the child on a permanent basis, the Government submitted that these had had a legal basis and agreed with the Chamber that they corresponded to a legitimate aim.",
"125. As to their necessity, the Government emphasised that Italian law recognised a parent-child relationship only in the event of a biological tie or an adoption which complied with the safeguards set out in the Adoption Act. They argued that it was through this legislative, political and ethical choice that the Italian State had decided to protect the interests of minors and to satisfy the requirements of Article 3 of the UN Convention on the Rights of the Child. This choice afforded no discretion to the courts.",
"126. In the Government ’ s view, the measures taken by the domestic courts were based on a careful assessment of the situation. The Government pointed out that the minors courts, which reached their decisions on a collegial basis, were composed of two professional judges and two lay judges who had specific training in psychiatry, biology, criminal anthropology, pedagogy or psychology. In the present case, the Campobasso Court had taken into account the child ’ s psychosocial profile in assessing his interests, and expressed doubts as to the applicants ’ abilities to love and educate the child.",
"127. The Government stressed that the impugned measures had been taken to ensure that the child could enjoy a private and family life in another family that was capable of protecting his health and providing for his sound and safe development and a definite identity. The Italian authorities had sought to strike a balance between competing interests, including those of the child, whose best interests were treated as the primary consideration. In the Government ’ s view, they had complied with the national legislation, in line with the margin of appreciation afforded to them in this area, and had reacted to the conduct of the applicants, who had breached the law on assisted reproduction.",
"128. The Government observed that the Court of Cassation had reached the same conclusion with regard to similar measures taken by the authorities in a comparable case, where the child had been born in Ukraine (see paragraph 70 above). The Government asked the Court to respect the principle of subsidiarity and the margin of appreciation left to the States and not to substitute its assessment for that of the national authorities.",
"129. In view of these considerations, the Government submitted that the application raised no issues under Article 8 of the Convention.",
"130. Lastly, the Government turned in the final section of their observations to gestational surrogacy and the Medically Assisted Reproduction Act, which prohibits this practice. They emphasised that the applicants had had recourse to an ethically unacceptable commercial practice in respect of which no European consensus existed. The Government criticised the Chamber judgment on the ground that it did not contain a chapter on comparative European law on gestational surrogacy arrangements. In view of the absence of a common standard, and the fact that certain States allowed the practice of surrogate motherhood, the Government condemned the growth of “reproductive tourism” and noted that the legal issues in this area were thorny ones, given the lack of harmonisation in the States ’ legal systems. They considered that, in the light of the lack of consensus in the States ’ domestic laws, and an absence of international regulations, the Court ought to allow the States a wide margin of appreciation in this area.",
"C. The Court ’ s assessment",
"1. Preliminary considerations",
"131. The Court notes at the outset that the child T.C. was born from an embryo obtained from an ova donation and a sperm donation provided by unknown donors, and was brought into the world in Russia by a Russian woman who waived her rights to him. There was therefore no biological tie between the applicants and the child. The applicants paid approximately EUR 50,000 to receive the child. The Russian authorities issued a birth certificate stating that they were the parents under Russian law. The applicants then decided to bring the child to Italy and to live there with him. The child ’ s genetic origins remain unknown. The present case thus concerns applicants who, acting outside any standard adoption procedure, brought to Italy from abroad a child who had no biological tie with either parent, and who had been conceived – according to the domestic courts – through assisted reproduction techniques that were unlawful under Italian law.",
"132. The Court notes that in the cases of Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)) and Labassee v. France (no. 65941/11, 26 June 2014), two pairs of intended parents had resorted to gestational surrogacy in the United States and had settled with their children in France. In those cases the existence of a biological tie between the father and the children was proven and the French authorities had never envisaged separating the children from the parents. The issue at the heart of those cases was the refusal to register the particulars of a birth certificate drawn up abroad in undisputed compliance with the legislation of the country of origin, and the children ’ s right to obtain recognition of the legal parent-child relationship. The parents and children were all applicants before the Court.",
"133. Unlike the above-cited Mennesson and Labassee cases, the present Article 8 complaint does not concern the registration of a foreign birth certificate and recognition of the legal parent-child relationship in respect of a child born from a gestational surrogacy arrangement (see paragraph 84 above). What is at issue in the present case are the measures taken by the Italian authorities which resulted in the separation, on a permanent basis, of the child and the applicants. Indeed, the domestic courts stated that the case did not involve a “traditional” surrogacy arrangement, given that the applicants ’ biological material had not been used. They emphasised the failure to comply with the procedure laid down by the legislation on international adoption and the breach of the prohibition on using donated gametes within the meaning of section 4 of the Medically Assisted Reproduction Act (see the relevant passage of the decision by the Minors Court, paragraph 37 above).",
"134. Therefore the legal questions at the heart of the case are: whether, given the circumstances outlined above, Article 8 is applicable; in the affirmative, whether the urgent measures ordered by the Minors Court, which resulted in the child ’ s removal, amount to an interference in the applicants ’ right to respect for their family life and/or their private life within the meaning of Article 8 § 1 of the Convention and, if so, whether the impugned measures were taken in accordance with Article 8 § 2 of the Convention.",
"135. Lastly, the Court points out that the child T.C. is not an applicant in the proceedings before the Court, the Chamber having dismissed the complaints raised by the applicants on his behalf (see paragraph 86 above). The Court is called upon to examine solely the complaints raised by the applicants on their own behalf (see, a contrario, Mennesson, cited above, §§ 96-102, and Labassee, cited above, §§ 75-81).",
"2. Applicability of Article 8 of the Convention",
"136. The Court reiterates that the Chamber concluded that there existed a de facto family life between the applicants and the child (see § 69 of the Chamber judgment). It further considered that the situation complained of also related to the second applicant ’ s private life, in that what was at stake for him was the establishment of a biological tie with the child (see § 70 of the Chamber judgment). It followed that Article 8 of the Convention was applicable in the present case.",
"137. The Government challenged the existence of a family life in the present case, relying essentially on the absence of a biological link between the applicants and the child and on the illegality of the applicants ’ conduct under Italian law. They submitted that, in view of the applicants ’ unlawful conduct, no tie protected by Article 8 of the Convention could exist between them and the child. They also argued that the applicants had lived with the child for only eight months.",
"138. The applicants asked the Court to recognise the existence of a family life, in spite of the lack of a biological tie with the child and the non ‑ recognition of a parent-child relationship under Italian law. Essentially, they argued that a legal parental relationship was recognised in Russian law and that they had formed close emotional ties with the child during the first eight months of his life.",
"139. The Court must therefore reply to the question whether the facts in the present case fall within the applicants ’ family life and/or private life.",
"(a) Family life",
"i. Relevant principles",
"140. The existence or non-existence of “family life” is essentially a question of fact depending upon the existence of close personal ties (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31, and K. and T. v. Finland, cited above, § 150). The notion of “family” in Article 8 concerns marriage-based relationships, and also other de facto “family ties” where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C; Johnston and Others v. Ireland, 18 December 1986, § 55, Series A no. 112; Keegan v. Ireland, 26 May 1994, § 44, Series A, no. 290; and X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports 1997 ‑ II).",
"141. The provisions of Article 8 do not guarantee either the right to found a family or the right to adopt (see E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008). The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family (see Marckx, cited above, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father (see Nylund v. Finland ( dec. ), no. 27110/95, ECHR 1999 ‑ VI), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 62, Series A no. 94), or the relationship between a father and his legitimate child even if it proves, years later, to have had no biological basis (see Nazarenko v. Russia, no. 39438/13, § 58, ECHR 2015 (extracts)), or the relationship that arises from a lawful and genuine adoption (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V (extracts)).",
"ii. Application to the present case",
"142. It is not contested that there is no biological tie between the applicants and the child. However, the parties submitted differing arguments as to whether the applicants were bound to the child by a legal parental relationship that was recognised under Russian law (see paragraphs 107 and 118 above).",
"143. Admittedly, as the Government indicated in their observations (see paragraph 11 8 above), the question of the birth certificate ’ s compliance with Russian law was examined by the Campobasso Court of Appeal which confirmed the refusal to register the disputed certificate, holding that it was in breach of Russian law (see paragraph 47 above). The applicants did not challenge this argument before the Court of Cassation (see paragraph 84 above).",
"144. However, the wording of the provisions of Russian law applicable on 27 February 2011, the date of the child ’ s birth, and on 10 March 2011, the date on which the applicants were registered as parents in Moscow, seems to confirm the applicants ’ argument before the Court that the existence of a biological tie between the child and the intended parents was not explicitly required under Russian law at the relevant time (see paragraphs 73-74 and 107 above). In addition, the certificate in question merely indicates that the applicants were the “parents”, without specifying whether they were the biological parents (see paragraph 16 above).",
"145. The Court notes that the question of the birth certificate ’ s compatibility with Russian law was not examined by the Minors Court in the context of the urgent measures adopted in respect of the child.",
"146. Before the Italian courts, the parental authority exercised by the applicants in respect of the child was recognised by implication in so far as a request was made for its suspension (see paragraph 23 above). However, the parental authority in question was uncertain, for the following reasons.",
"147. The applicants ’ situation was in conflict with national law. According to the Campobasso Minors Court (see paragraph 37 above), and irrespective of the criminal-law aspects, there had been illegality, firstly in that they had brought to Italy a foreign child who had no biological ties with either parent, in breach of the rules laid down on international adoption, and, secondly, in that they had entered into an agreement providing for the handing over of the second applicant ’ s seminal fluid in order to fertilise ovocytes from another woman, which was in breach of the prohibition in Italian law on heterologous assisted reproduction.",
"148. The Court must ascertain whether, in the circumstances of the case, the relationship between the applicants and the child came within the sphere of family life within the meaning of Article 8. The Court accepts, in certain situations, the existence of de facto family life between an adult or adults and a child in the absence of biological ties or a recognised legal tie, provided that there are genuine personal ties.",
"149. In spite of the absence of a biological tie and of a parental relationship that was legally recognised by the respondent State, the Court has found that there existed family life between the foster parents who had cared for a child on a temporary basis and the child in question, on account of the close personal ties between them, the role played by the adults vis ‑ à ‑ vis the child, and the time spent together (see Moretti and Benedetti v. Italy, no. 16318/07, § 48, 27 April 2010, and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012 ). In the case of Moretti and Benedetti, the Court attached importance to the fact that the child had arrived in the family at the age of one month and that, for nineteen months, the applicants had shared the first important stages of his young life with the child. It also noted that the court-ordered reports on the family showed that the child was well integrated in the family and deeply attached to the applicants and to their children. The applicants had also provided for the child ’ s social development. These elements were sufficient for the Court to find that there existed between the applicants and the child a close inter-personal bond and that the applicants behaved in every respect as her parents, so that “ de facto ” “family ties” existed between them (see Moretti and Benedetti, cited above, §§ 49-50). The Kopf and Liberda case concerned a foster family which had cared, over a period of about forty-six months, for a child who had arrived in their home at the age of two. Here too the Court concluded that family life existed, given that the applicants had a genuine concern for the child ’ s well-being and that an emotional bond had developed between the individuals concerned (see Kopf and Liberda, cited above, § 37).",
"150. In addition, in the case of Wagner and J.M.W.L. v. Luxembourg ( no. 76240/01, § 117, 28 June 2007 ) – which concerned the inability to obtain legal recognition in Luxembourg of a Peruvian judicial decision pronouncing the second applicant ’ s full adoption by the first applicant – the Court recognised the existence of family life in the absence of legal recognition of the adoption. It took into consideration that de facto family ties had existed for more than ten years between the applicants and that the first applicant had acted as the minor child ’ s mother in every respect.",
"151. It is therefore necessary, in the instant case, to consider the quality of the ties, the role played by the applicants vis-à-vis the child and the duration of the cohabitation between them and the child. The Court considers that the applicants had developed a parental project and had assumed their role as parents vis-à-vis the child (see, a contrario, Giusto, Bornacin and V. v. Italy ( dec. ), no. 38972/06, 15 May 2007). They had forged close emotional bonds with him in the first stages of his life, the strength of which was, moreover, clear from the report drawn up by the team of social workers following a request by the Minors Court (see paragraph 25 above).",
"152. With regard to the duration of the cohabitation between the applicants and the child in this case, the Court notes that the applicants and the child lived together for six months in Italy, preceded by a period of about two months ’ shared life between the first applicant and the child in Russia.",
"153. It would admittedly be inappropriate to define a minimal duration of shared life which would be necessary to constitute de facto family life, given that the assessment of any situation must take account of the “quality” of the bond and the circumstances of each case. However, the duration of the relationship with the child is a key factor in the Court ’ s recognition of the existence of a family life. In the above-cited case of Wagner and J.M.W.L ., the cohabitation had lasted for more than ten years. Equally, in the Nazarenko case (cited above, § 58 ), in which a married man had assumed the parental role before discovering that he was not the child ’ s biological father, the period spent together had lasted more than five years.",
"154. It is true that, in the present case, the duration of cohabitation with the child was longer than that in the case of D. and Others v. Belgium (( dec. ) no. 29176/13, § 49, 8 July 2014), in which the Court held that family life, protected by Article 8, had existed for only two months before the temporary separation of a Belgian couple and a child born in Ukraine to a surrogate mother. In that case, however, there was a biological tie with at least one of the parents and cohabitation had subsequently resumed.",
"155. As to the second applicant ’ s argument that he had been persuaded that he was the child ’ s biological father, given that his seminal fluid had been handed over to the clinic, the Court considers that that belief – which was proved to be unfounded in August 2011 by the result of the DNA test – cannot compensate for the short duration of the period in which he lived together with the child (see, a contrario, Nazarenko, cited above, § 58) and does not therefore suffice to establish a de facto family life.",
"156. Although the termination of their relationship with the child is not directly imputable to the applicants in the present case, it is nonetheless the consequence of the legal uncertainty that they themselves created in respect of the ties in question, by engaging in conduct that was contrary to Italian law and by coming to settle in Italy with the child. The Italian authorities reacted rapidly to this situation by requesting the suspension of parental authority and opening proceedings to make the child available for adoption (see paragraphs 22-23 above). The present case differs from the above-cited cases of Kopf, Moretti and Benedetti, and Wagner, where the child ’ s placement with the applicants was respectively recognised or tolerated by the authorities.",
"157. Having regard to the above factors, namely the absence of any biological tie between the child and the intended parents, the short duration of the relationship with the child and the uncertainty of the ties from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court considers that the conditions enabling it to conclude that there existed a de facto family life have not been met.",
"158. In these circumstances, the Court concludes that no family life existed in the present case.",
"(b) Private life",
"i. Relevant principles",
"159. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91) and, to a certain degree, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). The concept of private life also encompasses the right to “personal development” or the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III), and the right to respect for the decisions both to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I, and A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010 ).",
"160. In its judgment in the case of Dickson v. the United Kingdom ([GC], no. 44362/04, § 66, ECHR 2007-V), concerning the refusal to grant the applicants – a prisoner and his wife – artificial insemination facilities, the Court concluded that Article 8 was applicable, in that the refusal of artificial insemination facilities at issue concerned their private and family lives, specifying that those notions incorporate the right to respect for their decision to become genetic parents. In the case of S.H. and Others v. Austria ([GC], no. 57813/00, § 82, ECHR 2011) – which concerned couples wishing to have a child using gametes from donors – the Court held that the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose is also protected by Article 8, as such a choice is an expression of private and family life.",
"ii. Application to the present case",
"161. The Court considers that there is no valid reason to understand the concept of “private life” as excluding the emotional bonds created and developed between an adult and a child in situations other than the classic situations of kinship. This type of bond also pertains to individuals ’ life and social identity. In certain cases involving a relationship between adults and a child where there are no biological or legal ties the facts may nonetheless fall within the scope of “private life” (see X. v. Switzerland, no. 8257/78, Commission decision of 10 July 1978, Decisions and Reports 5, and, mutatis mutandis, Niemietz, cited above, § 29).",
"162. In particular, in the above-cited case of X. v. Switzerland, the Commission examined the situation of an individual who had been entrusted by friends with the care of their child, a task which she fulfilled. When, several years later, the authorities decided that the child could no longer remain with the individual in question, since the parents had asked to resume caring for him, the applicant lodged an appeal in order to be able to keep the child, relying on Article 8 of the Convention. The Commission held that the applicant ’ s private life was involved, in that she was deeply attached to the child.",
"163. In the present case, the Court notes that the applicants had a genuine intention to become parents, initially by attempts to conceive via in vitro fertilisation, then by applying for and obtaining formal approval to adopt, and, lastly, by turning to ova donation and the use of a surrogate mother. A major part of their lives was focused on realising their plan to become parents, in order to love and bring up a child. Accordingly, what is at issue is the right to respect for the applicants ’ decision to become parents (see S.H. and Others v. Austria, cited above, § 82), and the applicants ’ personal development through the role of parents that they wished to assume vis-à-vis the child. Lastly, given that the proceedings before the Minors Court concerned the issue of biological ties between the child and the second applicant, those proceedings and the establishment of the genetic facts had an impact on the second applicant ’ s identity and the relationship between the two applicants.",
"164. In the light of these considerations, the Court concludes that the facts of the case fall within the scope of the applicants ’ private life.",
"(c) Conclusion",
"165. In view of the foregoing, the Court concludes that there was no family life between the applicants and the child. It considers, however, that the impugned measures pertained to the applicants ’ private life. It follows that Article 8 of the Convention applies under this head.",
"3. Compliance with Article 8 of the Convention",
"166. The applicants in the present case were affected by the judicial decisions which resulted in the child ’ s removal and his being placed in the care of the social services with a view to adoption. The Court considers that the measures taken in respect of the child – removal, placement in a home without contact with the applicants, being placed under guardianship – amounted to an interference with the applicants ’ private life.",
"167. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned.",
"(a) “In accordance with the law”",
"168. The applicants submitted that the manner of applying Italian law and, in particular, section 8 of the Adoption Act – defining a minor child in a state of abandonment as one who is deprived of all emotional or material support from the parents or the members of his family responsible for providing such support – amounted to an arbitrary choice on the part of the Italian courts.",
"169. The Court reiterates that, according to its settled case-law, the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012). However, it is for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A; Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II; and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140; see also Delfi AS v. Estonia [GC], no. 64569/09, § 127, ECHR 2015).",
"170. Like the Chamber (see § 72 of the Chamber judgment), the Grand Chamber considers that the choice by the national courts to apply the Italian law on parentage, and not to base their decisions on the birth certificate issued by the Russian authorities and certified by them, was compatible with the 1961 Hague Convention (see paragraph 75 above). Under Article 5 of that Convention, the only effect of the certificate was to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears. According to the explanatory report to that Convention, the certificate does not attest to the truthfulness of the content of the original document. This limitation on the legal effects deriving from the Hague Convention is intended to preserve the right of the signatory States to apply their own choice-of-law rules when they are required to determine the probatory force to be attached to the content of the certified document.",
"171. In the present case the domestic courts applied the Italian rule on conflict of laws which provides that the legal parent-child relationship is determined by the national law governing the child at the time of his or her birth (Private International Law Act, see paragraph 57 above). However, as the child had been conceived from the gametes of unknown donors, his nationality was not established in the eyes of the Italian courts.",
"172. Section 37 bis of the Adoption Act provides that, for the purposes of adoption, placement and urgent measures, Italian law is applicable to foreign minors who are in Italy (see paragraphs 63 and 65 above). The situation of the child T.C., whose nationality was unknown, and who had been born abroad to unknown biological parents, was equated with that of a foreign minor.",
"173. In such a situation, the Court considers that the application of Italian law by the national courts, giving rise to the finding that the child was in a “state of abandonment”, was foreseeable.",
"174. It follows that the interference with the applicants ’ private life was “in accordance with the law”.",
"(b) Legitimate aim",
"175. The Government agreed with the Chamber judgment, which had accepted that the measures in question were intended to ensure “the prevention of disorder” and to protect the child ’ s “rights and freedoms”.",
"176. The applicants disagreed that those measures served to protect the child ’ s “rights and freedoms”.",
"177. In so far as the applicants ’ conduct ran counter to the Adoption Act and the Italian prohibition on heterologous artificial reproduction techniques, the Grand Chamber accepts the Chamber ’ s view that the measures taken in respect of the child pursued the aim of “preventing disorder”. Moreover, it accepts that those measures were also intended to protect the “rights and freedoms” of others. The Court regards as legitimate under Article 8 § 2 the Italian authorities ’ wish to reaffirm the State ’ s exclusive competence to recognise a legal parent-child relationship – and this solely in the case of a biological tie or lawful adoption – with a view to protecting children.",
"178. The impugned measures thus pursued legitimate aims.",
"(c) Necessity in a democratic society",
"i. Relevant principles",
"179. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 ( see, among many other authorities, Parrillo v. Italy [GC], no. 46470/11, § 168, ECHR 2015; S.H. and Others v. Austria, cited above, § 91; and K. and T. v. Finland, cited above, § 154).",
"180. In cases arising from individual applications the Court ’ s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see S.H. and Others v. Austria, cited above, § 92, and Olsson v. Sweden (no. 1), 24 March 1988, § 54, Series A no. 130). Consequently, the Court ’ s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements and with the help of a medically ‑ assisted reproduction technique, both of which are prohibited in the respondent State.",
"181. According to the Court ’ s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (see A, B and C v. Ireland, cited above, § 229). In determining whether an interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see X, Y and Z v. the United Kingdom, cited above, § 41 ).",
"182. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention (see, among many other authorities, S. H. and Others v. Austria, cited above, § 94; and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014). Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans, cited above, § 77). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans, cited above, § 77; and A, B and C v. Ireland, cited above, § 232). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson, cited above, § 78).",
"183. While the authorities enjoy a wide margin of appreciation in the area of adoption (see Wagner and J.M.W.L ., cited above, § 128) or in assessing the necessity of taking a child into care (see Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002 ‑ I ), in particular where an emergency situation arises, the Court must still be satisfied in the particular case that there existed circumstances justifying the removal of the child (see Zhou v. Italy, no. 33773/11, § 55, 21 January 2014).",
"184. As regards the Court ’ s recognition that the States must in principle be afforded a wide margin of appreciation regarding matters which raise delicate moral and ethical questions on which there is no consensus at European level, the Court refers, in particular, to the nuanced approach adopted on the issue of heterologous assisted fertilisation in S.H. and Others v. Austria (cited above, §§ 95-118) and to the analysis of the margin of appreciation in the context of surrogacy arrangements and the legal recognition of the parent-child relationship between intended parents and the children thus legally conceived abroad in Mennesson (cited above, §§ 78-79).",
"ii. Application of the principles to the present case",
"185. The applicants alleged that the child ’ s removal had been neither necessary nor based on relevant and sufficient reasons, and that the domestic courts took their decision based solely on the defence of public order, without assessing the interests at stake. In this connection, they pointed out that the reports drawn up by the welfare service and the consultant psychologist appointed by them – which were extremely positive as to their capacity to love and care for the child – had been completely disregarded by the courts.",
"186. The Government argued that the decisions taken by the courts had been necessary in order to restore legality and that the child ’ s interests had been taken into account in those decisions.",
"187. The Court must therefore assess the measures ordering the child ’ s immediate and permanent removal and their impact on the applicants ’ private life.",
"188. It notes in this connection that the national courts based their decisions on the absence of any genetic ties between the applicants and the child and on the breach of domestic legislation concerning international adoption and on medically assisted reproduction. The measures taken by the authorities were intended to ensure the immediate and permanent rupture of any contact between the applicants and the child, and the latter ’ s placement in a home and also under guardianship.",
"189. In its decision of 20 October 2011, the Campobasso Minors Court had regard to the following elements (see paragraph 37 above). The first applicant had stated that she was not the genetic mother; the ova came from an unknown woman; the DNA tests carried out on the second applicant and the child had shown that there was no genetic tie between them; the applicants had paid a considerable amount of money; contrary to his statements, there was nothing to prove that the second applicant ’ s genetic material had actually been taken to Russia. In those circumstances, this was not a case involving traditional surrogate motherhood, since the child had no genetic ties with the applicants. The only certainty was the identity of the surrogate mother, who was not the genetic mother and who had waived her rights to the child after his birth. The identity of the genetic parents remained unknown. The applicants had acted unlawfully since, firstly, they had brought a child to Italy in breach of the Adoption Act. According to that statute, before bringing a foreign child to Italy, candidates for international adoption were required to apply to an authorised organisation and then to request the involvement of the Commission for Inter-country Adoption, the only body competent to authorise entry and permanent residence of a foreign child in Italy. Section 72 of the Act made conduct contravening these rules liable to prosecution, but assessment of the criminal-law aspect of the situation was not within the competence of the minors courts. Secondly, the agreement concluded between the applicants and the company Rosjurconsulting was in breach of the Medically Assisted Reproduction Act, section 4 of which prohibited heterologous assisted fertilisation. It was necessary to bring this unlawful situation to an end, and the only way to do so was to remove the child from the applicants.",
"190. The Minors Court recognised that the child would suffer harm from the separation but, given the short period spent with the applicants and his young age, it considered that this trauma would not be irreparable, contrary to the opinion of the psychologist appointed by the applicants. It indicated that a search should begin immediately for another couple who could care for the child and attenuate the consequences of the trauma. In addition, having regard to the fact that the applicants had preferred to circumvent the Adoption Act in spite of the authorisation obtained by them, it could be thought that the child resulted from a narcissistic desire on the part of the couple or that he was intended to resolve problems in their relationship. In consequence, the court expressed doubts as to the applicants ’ genuine affective and educational abilities.",
"191. Furthermore, the Campobasso Court of Appeal upheld the decision of the Minors Court, and also held that the child was in a “state of abandonment” within the meaning of the Adoption Act. It emphasised the urgency in deciding on the measures in his respect, without awaiting the outcome of the proceedings on registration of the birth certificate (see paragraph 40 above).",
"α. The margin of appreciation",
"192. The Court must examine whether those grounds are relevant and sufficient and whether the national courts struck a fair balance between the competing public and private interests. In doing so, it must first determine the breadth of the margin of appreciation to be accorded to the State in this area.",
"193. According to the applicants, the margin of appreciation is restricted, given that the subject of the present case is the child ’ s permanent removal and that the child ’ s best interests ought to be paramount (see paragraph 110 above). In the Government ’ s submission, the authorities enjoy a wide margin of appreciation with regard to surrogate motherhood and techniques for medically assisted reproduction (see paragraph 122 above).",
"194. The Court observes that the facts of the case touch on ethically sensitive issues – adoption, the taking of a child into care, medically assisted reproduction and surrogate motherhood – in which member States enjoy a wide margin of appreciation (see paragraph 18 2 above).",
"195. In contrast to the situation in the Mennesson judgment (cited above, §§ 80 and 96-97), the questions of the child ’ s identity and recognition of genetic descent do not arise in the present case since, on the one hand, any failure by the State to provide the child with an identity cannot be pleaded by the applicants, who do not represent him before the Court and, on the other, there are no biological links between the child and the applicants. In addition, the present case does not concern the choice to become genetic parents, an area in which the State ’ s margin of appreciation is restricted (see Dickson, cited above, § 78). Nonetheless, even where, as here, the State enjoys a wide margin of appreciation, the solutions reached are not beyond the scrutiny of the Court. It is for the latter to examine carefully the arguments taken into consideration when reaching the impugned decision and to determine whether a fair balance has been struck between the competing interests of the State and those of the individuals directly affected by the decision (see, mutatis mutandis, S.H. and Others v. Austria, cited above, § 97).",
"β. Relevant and sufficient reasons",
"196. As regards the reasons put forward by the domestic authorities, the Court observes that they relied in particular on two strands of argument: they had regard, firstly, to the illegality of the applicants ’ conduct and, secondly, to the urgency of taking measures in respect of the child, whom they considered to be “in a state of abandonment” within the meaning of section 8 of the Adoption Act.",
"197. The Court has no doubt that the reasons advanced by the domestic courts are relevant. They are directly linked to the legitimate aim of preventing disorder, and also that of protecting children – not merely the child in the present case but also children more generally – having regard to the prerogative of the State to establish descent through adoption and through the prohibition of certain techniques of medically assisted reproduction (see paragraph 177 above).",
"198. Turning to the question of whether the reasons given by the domestic courts were also sufficient, the Grand Chamber reiterates that, unlike the Chamber, it considers that the facts of the case fall not within the scope of family life but only within that of private life. Thus, the case is not to be examined from the perspective of preserving a family unit, but rather from the angle of the applicants ’ right to respect for their private life, bearing in mind that what was at stake was their right to personal development through their relationship with the child.",
"199. In the particular circumstances of the case, the Court considers that the reasons given by the domestic courts, which concentrated on the situation of the child and the illegality of the applicants ’ conduct, were sufficient.",
"γ. Proportionality",
"200. It remains to be examined whether the impugned measures were proportionate to the legitimate aims pursued and in particular whether the domestic courts, acting within the wide margin of appreciation accorded to them in the present case, have struck a fair balance between the competing public and private interests.",
"201. The domestic courts attached considerable weight to the applicants ’ failure to comply with the Adoption Act and to the fact that they had recourse abroad to methods of medically assisted reproduction that are prohibited in Italy. In the domestic proceedings, the courts, focused as they were on the imperative need to take urgent measures, did not expand on the public interests involved; nor did they explicitly address the sensitive ethical issues underlying the legal provisions breached by the applicants.",
"202. In the proceedings before the Court, the respondent Government submitted that in Italian law descent may be established either through the existence of a biological relationship or through an adoption respecting the rules set out in the law. They argued that, in making this choice, the Italian legislature was seeking to protect the best interests of the child as required by Article 3 of the Convention on the Rights of the Child. The Court accepts that, by prohibiting private adoption based on a contractual relationship between individuals and restricting the right of adoptive parents to introduce foreign minors into Italy to cases in which the rules on international adoption have been respected, the Italian legislature is seeking to protect children against illicit practices, some of which may amount to human trafficking.",
"203. Furthermore, the Government relied on the argument that the decisions taken had to be seen against the background of the prohibition of surrogacy arrangements under Italian law. There is no doubt that recourse to such an arrangement raises sensitive ethical questions on which no consensus exists among the Contracting States (see Mennesson, cited above, § 79). By prohibiting surrogacy arrangements, Italy has taken the view that it is pursuing the public interest of protecting the women and children potentially affected by practices which it regards as highly problematic from an ethical point of view. This policy is considered very important, as the Government have pointed out, where, as here, commercial surrogacy arrangements are involved. That underlying public interest is also of relevance in respect of measures taken by a State to discourage its nationals from having recourse abroad to such practices which are forbidden on its own territory.",
"204. In sum, for the domestic courts the primary concern was to put an end to an illegal situation. Having regard to the considerations set out above, the Court accepts that the laws which had been contravened by the applicants and the measures which were taken in response to their conduct served to protect very weighty public interests.",
"205. With regard to the private interests at stake, there are those of the child on the one hand and those of applicants on the other.",
"206. In respect of the child ’ s interests, the Court reiterates that the Campobasso Minors Court had regard to the fact that there was no biological tie between the applicants and the child and held that a suitable couple should be identified as soon as possible to take care of him. Given the child ’ s young age and the short period spent with the applicants, the court did not agree with the psychologist ’ s report submitted by the applicants, suggesting that the separation would have devastating consequences for the child. Referring to the literature on the subject, it noted that the fact of mere separation from the care-givers, without any other factors being present, would not cause a psychopathological state in a child. It concluded that the trauma caused by the separation would not be irreparable.",
"207. As to the applicants ’ interest in continuing their relationship with the child, the Minors Court had noted that there was no evidence in the file to support their claim that they had provided the Russian clinic with the second applicant ’ s genetic material. Moreover, having obtained approval for inter-country adoption, they had circumvented the Adoption Act by bringing the child to Italy without the approval of the competent body, namely the Commission for Inter-Country Adoption. Having regard to that conduct, the Minors Court expressed concern that the child might be an instrument to fulfil a narcissistic desire of the applicants or to exorcise an individual or joint problem. Furthermore, it considered that the applicants ’ conduct threw a “consistent shadow on their possession of genuine affective and educational abilities” and doubted whether they displayed the “instinct of human solidarity which must be present in any person wishing to bring the children of others into their lives as their own children” (see paragraph 37 above).",
"208. Before entering into the question of whether the Italian authorities duly weighed the different interests involved, the Court reiterates that the child is not an applicant in the present case. In addition, the child was not a member of the applicants ’ family within the meaning of Article 8 of the Convention. This does not mean however, that the child ’ s best interests and the way in which these were addressed by the domestic courts are of no relevance. In that connection, the Court observes that Article 3 of the Convention on the Rights of the Child requires that “in all actions concerning children ... the best interests of the child shall be a primary consideration”, but does not however define the notion of the “best interests of the child”.",
"209. The present case differs from cases in which the separation of a child from its parents is at stake, where in principle separation is a measure which may only be ordered if the child ’ s physical or moral integrity is in danger (see, among other authorities, Scozzari and Giunta, cited above, §§ 148-151, and Kutzner, cited above, §§ 69-82). In contrast, the Court does not consider in the present case that the domestic courts were obliged to give priority to the preservation of the relationship between the applicants and the child. Rather, they had to make a difficult choice between allowing the applicants to continue their relationship with the child, thereby legalising the unlawful situation created by them as a fait accompli, or taking measures with a view to providing the child with a family in accordance with the legislation on adoption.",
"210. The Court has already noted that the public interests at stake were very weighty ones. Moreover, it considers that the Italian courts ’ reasoning in respect of the child ’ s interests was not automatic or stereotyped (see, mutatis mutandis, X. v. Latvia [GC], no. 27853/09, § 107, ECHR 2013). In evaluating the child ’ s specific situation, the courts considered it desirable to place him with a suitable couple with a view to adoption, and also assessed the impact which the separation from the applicants would have. They concluded in essence that the separation would not cause the child grave or irreparable harm.",
"211. In contrast, the Italian courts attached little weight to the applicants ’ interest in continuing to develop their relationship with a child whose parents they wished to be. They did not explicitly address the impact which the immediate and irreversible separation from the child would have on their private life. However, this has to be seen against the background of the illegality of the applicants ’ conduct and the fact that their relationship with the child was precarious from the very moment that they decided to take up residence with him in Italy. The relationship became even more tenuous once it had turned out, as a result of the DNA test, that there was no biological link between the second applicant and the child.",
"212. The applicants argued that the procedure suffered from a number of shortcomings. As to the alleged failure to accept an expert opinion, the Court observes that the Minors Court did have regard to the psychologist ’ s report submitted by the applicants. However, it disagreed with its conclusion that the separation from the applicants would have devastating consequences for the child. In this connection, the Court attaches importance to the Government ’ s argument that the Minors Court is a specialised court which sits with two professional judges and two expert members (see paragraph 69 above).",
"213. As to the applicants ’ argument that the courts failed to examine alternatives to immediate and irreversible separation from the child, the Court observes that before the Minors Court the applicants had initially requested that the child be temporarily placed with them with a view to subsequent adoption. In the Court ’ s view, it has to be borne in mind that the proceedings were of an urgent nature. Any measure prolonging the child ’ s stay with the applicants, such as placing him in their temporary care, would have carried the risk that the mere passage of time would have determined the outcome of the case.",
"214. Moreover, apart from the illegality of the applicants ’ conduct, the Government pointed out that they had exceeded the age limit for adoption laid down in section 6 of the Adoption Act, namely a maximum difference in age of forty-five years in respect of one adopting parent and fifty-five years in respect of the second. The Court observes that the law authorises the courts to make exceptions from these age-limits. In the circumstances of the present case, the domestic courts cannot be reproached for failing to consider that option.",
"δ. Conclusion",
"215. The Court does not underestimate the impact which the immediate and irreversible separation from the child must have had on the applicants ’ private life. While the Convention does not recognise a right to become a parent, the Court cannot ignore the emotional hardship suffered by those whose desire to become parents has not been or cannot be fulfilled. However, the public interests at stake weigh heavily in the balance, while comparatively less weight is to be attached to the applicants ’ interest in their personal development by continuing their relationship with the child. Agreeing to let the child stay with the applicants, possibly with a view to becoming his adoptive parents, would have been tantamount to legalising the situation created by them in breach of important rules of Italian law. The Court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case.",
"216. It follows that there has been no violation of Article 8 of the Convention."
] |
11 | Valdís Fjölnisdóttir and Others v. Iceland | 18 May 2021 | This case concerned the non-recognition of a parental link between the first two applicants and the third applicant, who was born to them via a surrogate mother in the United States. The first and second applicants were the third applicant’s intended parents, but neither of them was biologically related to him. They had not been recognised as the child’s parents in Iceland, where surrogacy is illegal. The applicants complained, in particular, that the refusal by the authorities to register the first and second applicants as the third applicant’s parents had amounted to an interference with their rights. | The Court held that there had been no violation of Article 8 (right to respect for family life) of the Convention. It considered, in particular, that despite the lack of a biological link between the applicants, there had been “family life” in the applicants’ relationship. However, the Court found that the decision not to recognise the first two applicants as the child’s parents had had a sufficient basis in domestic law and, taking note of the efforts on the parts of the authorities to maintain that “family life”, ultimately adjudged that Iceland had acted within its discretion in the present case. | Children’s rights | Children born as a result of surrogacy treatment | [
"2. The applicants were born in 1978, 1977 and 2013 respectively and live in Kópavogur. The applicants were represented by Ms Þyrí Steingrímsdóttir, a lawyer practising in Reykjavik. The third applicant’s application was lodged on the authority of his legal guardian, Ms M. (see paragraph 8 below).",
"3. The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, Attorney General of Iceland.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. The first and second applicants were a married couple who engaged the paid services of a surrogacy agency based in the United States and concluded a surrogacy delivery plan, in accordance with which they were to be the intended parents of a child born by way of gestational surrogacy. They subsequently travelled to California, where a son, the third applicant, was born to them via a surrogate mother in February 2013. The child was conceived using in vitro fertilisation with donor gametes and is not biologically related to either the first or the second applicant. Upon the child’s birth, the first and the second applicant were registered in California as his parents and a birth certificate to that effect was issued, together with a US passport for the child. The submitted documents indicate that the surrogate mother has waived any claim to legal parenthood in respect of the third applicant.",
"6. Three weeks after the third applicant’s birth the three applicants travelled to Iceland. Shortly thereafter, the first and second applicants applied to Registers Iceland for the third applicant’s registration in the national register. The application was made using the form for Icelandic nationals born abroad who were automatically entitled to Icelandic citizenship, and included the third applicant’s birth certificate issued in the United States. Upon enquiries being made, the applicants later revealed to Registers Iceland that the third applicant had been born via gestational surrogacy.",
"7. On 18 June 2013 Registers Iceland denied the request for registration of the third applicant. The decision stated that as the child had been born in the United States to a surrogate mother, Icelandic legal provisions on a child’s parentage were not applicable, and the child was therefore not automatically entitled to citizenship under Act no. 100/1952 on Icelandic Citizenship (see paragraphs 29 to 30 below). The decision also stated that Registers Iceland considered the third applicant to be a foreign citizen whose registration and residence fell under Act no. 96/2002 on Foreigners (see paragraph 32 below). The first and second applicants appealed against that decision to the Ministry of the Interior.",
"8. In the meantime, the third applicant was considered to be a foreign national and an unaccompanied minor in Iceland. The child protection committee in the applicants’ municipality therefore took legal custody of him by a decision of 26 September 2013 and appointed him a legal guardian, Ms M., in accordance with Child Protection Act no. 80/2002. Initially, an agreement was made with the first and second applicants for the third applicant to be placed in their care until a permanent foster agreement was made with them.",
"9. On 27 March 2014 the Ministry of the Interior confirmed Registers Iceland’s decision to deny the third applicant’s registration in the national register. The decision stated that under Icelandic law, the woman who gave birth to a child was always considered its mother, regardless of whether the child was conceived using her gametes. The matter of the child’s registration depended on whether he fulfilled the conditions of Icelandic citizenship, and could not be based on Act no. 160/1995 on the Recognition and Enforcement of Foreign Decisions on Child Custody, the Return of Abducted Children, and so on (see paragraph 34 below). The child was not automatically entitled to Icelandic citizenship, given that: he had been born in the United States; the surrogate, who under Icelandic law was considered to be the child’s mother, was a US citizen; and nothing had been submitted indicating that the child’s biological father was an Icelandic citizen. The ministry therefore confirmed Registers Iceland’s decision to refuse the third applicant’s registration in the national register.",
"10. The applicants sought judicial review of that decision and were granted State legal aid for the purposes of those proceedings. They demanded the annulment of the ministry’s decision and a declaratory judgment to the effect that Registers Iceland was obligated to register the first and second applicants as the third applicant’s parents, in accordance with the child’s birth certificate.",
"11. While the proceedings before the District Court of Reykjavik were pending, the third applicant was granted Icelandic citizenship following the adoption of Act no. 128/2015 on the Granting of Citizenship, which came into force on 31 December 2015. He was subsequently entered in the national register as an Icelandic citizen, but the first and second applicants were still not registered as his parents.",
"12. Additionally, while the proceedings before the District Court were pending, the first and second applicants divorced in May 2015. As a result, the permanent agreement for their foster care of the third applicant became invalid. A new foster care arrangement was subsequently made on 9 December 2015, under which the third applicant was fostered by the first applicant and her new spouse for one year while enjoying equal access to the second applicant. Later, the third applicant was fostered by the second applicant and her new spouse for one year while enjoying equal access to the first applicant. The Supreme Court delivered a judgment in the present case on 30 March 2017 (see paragraphs 22 to 24 below), and as domestic law only allows for temporary foster care arrangements for up to two years, the third applicant has been permanently fostered by the first applicant and her spouse since 18 December 2019, but continues to enjoy equal access to the second applicant and her spouse.",
"13. The child protection committee’s decision regarding permanent foster care, dated 18 December 2019, noted that the aim of the temporary foster care arrangements had been for the third applicant to be cared for by his “mothers” according to his birth certificate, which had been considered to be in his best interests. The intention had been for those foster care arrangements to continue until the first and second applicants were granted custody of him, but that had not happened. An assessment of both intended mothers and their new spouses had found that all parties were competent to care for the child; the first and second applicants had cared for him well and they had cooperated well to ensure his best interests.",
"14. Prior to their divorce, the first and second applicants had applied to adopt the third applicant. By a letter of 7 October 2013, the District Commissioner of Reykjavik informed the applicants that the application for adoption could not be dealt with while the application for registration of parentage was still pending, as adoption presupposed that the adoptive parents were not the parents of the child. Noting that the result of the registration case before the Ministry of the Interior could affect the adoption proceedings, the Commissioner announced that the processing of the adoption application would be put on hold.",
"15. After the Ministry of the Interior had delivered its decision in the registration proceedings, the applicants received a second letter from the District Commissioner, dated 28 May 2014. The letter stated that under the general rule on parentage, and in the light of the ministry’s conclusion in the registration proceedings, the Commissioner considered the surrogate mother to be the third applicant’s mother, and as it appeared from the case file that she was married, her husband was considered the father. They should therefore be considered the child’s guardians, and thus their consent had to be obtained pursuant to sections 7, 8 and 9 of the Act on Adoption (see paragraph 33 below). The Commissioner requested that the applicants submit information about the address of the surrogate mother and her husband, and confirmation of her marital status. Furthermore, the Commissioner’s letter noted that under section 14 of the Adoption Act, permission to adopt could not be granted if any party giving consent to the adoption received a fee or benefits in relation to the consent, including pay for loss of income. The Commissioner requested declarations from the first and second applicants confirming that such a payment had not been made, and noted that the surrogate mother and her husband would be asked to submit similar declarations.",
"16. The applicants replied to this second letter on 23 July 2014. In their reply, they protested against the Commissioner’s position, stating that even if the surrogate mother were considered to be the third applicant’s parent, she should in any event not be considered to be a parent with custody, and therefore her consent to his adoption should not be required (see section 7(1) of the Adoption Act, paragraph 33 below). They submitted that it was Ms M.’s consent, as the third applicant’s legal guardian, which should be obtained pursuant to section 7(3) of the Adoption Act (see paragraph 33 below). They furthermore submitted that the surrogate mother was not married, and that the first and second applicants had not made any payments in connection with consent for adoption within the meaning of section 14 of the Adoption Act, which Ms M. would confirm. This letter had still not been answered by the time the first and second applicants divorced, when they withdrew their application for adoption, by a letter of 10 January 2015.",
"17. By a judgment of 2 March 2016, the District Court rejected the applicants’ claims for the ministry’s decision to be annulled and for Registers Iceland to register the first and second applicants as the parents of the third applicant.",
"18. The District Court found that in accordance with the fundamental principles of Icelandic family law, the woman who gave birth to a child was considered its mother. Consequently, the first and second applicants could not be considered the third applicant’s parents. The District Court also noted that the principles of private international law generally did not require a State to recognise a decision rendered by the authorities of another State if it was manifestly incompatible with the fundamental legal principles of the former State, even if the decision was compatible with the laws of the latter. Noting that surrogacy was unlawful in Iceland, and punishable by fines or up to three months’ imprisonment in the event of a violation within Icelandic jurisdiction, the District Court found that recognising as parents those who were resident in Iceland but went abroad for the purposes of surrogacy would create a legal loophole around the ban on surrogacy. The District Court therefore found that the Icelandic State had a legitimate reason to refuse to recognise parentage established abroad in such circumstances.",
"19. As for the third applicant’s right to respect for his private and family life, the District Court recognised that “family life” had been established between the three applicants, and that the authorities’ refusal to register the third applicant as the first and second applicants’ son in the national register had interfered with his private and family life. However, that interference had served the aim of upholding the ban on surrogacy and thereby protecting the interests of others, namely preventing women from being pressured into carrying children for others and ensuring that children could seek information about their heritage. The District Court noted that the authorities had taken steps to ensure the child’s best interests and to counteract the difficulties which the applicants had experienced as a result of the refusal to register the third applicant, by allowing the third applicant to be fostered by the first and second applicants to preserve the family bond between them, and by granting the third applicant a residence permit and subsequently citizenship.",
"20. The District Court also discussed the application for the third applicant’s adoption. It noted that special rules applied to the adoption of a child by its foster parents, in accordance with which a child could be adopted without the approval of its biological parents if this was clearly in the child’s best interests. Accordingly, the District Court considered that the adoption application would probably have been approved if the first and second applicants had not divorced.",
"21. In the light of these considerations, the District Court found that the interference with private and family life caused by the refusal to register the third applicant had been necessary to protect morality and the rights of others, and that it had been accompanied by sufficient counter-balancing efforts to alleviate the negative effects of the refusal. The child’s best interests, although of paramount importance, could not override the fundamental legal principles of parentage.",
"22. The applicants appealed against the judgment to the Supreme Court of Iceland. By a judgment of 30 March 2017, the Supreme Court upheld the District Court’s rejection of the applicants’ claims.",
"23. The Supreme Court, like the District Court, found that the authorities had been entitled to refuse to recognise family ties which had been established in a manner contrary to the fundamental principles of Icelandic family law. In this regard, the Supreme Court held that neither the first nor the second applicant could be considered to have been the third applicant’s mother at the time of his birth, under Icelandic law. The Supreme Court emphasised that the fourth paragraph of section 5 of Act no. 55/1996 on Artificial Fertilisation and the Use of Human Gametes and Embryos for Stem Cell Research explicitly banned surrogacy (see paragraph 28 below). The Supreme Court also noted that under the first paragraph of section 6 of Children Act no. 76/2003, a woman who gave birth to a child conceived by assisted conception treatment had to be regarded as its mother (see paragraph 27 below). Pursuant to the second paragraph of section 6 of the same Act, a woman who had consented to her wife undergoing such treatment had to be regarded as the child’s parent (see paragraph 27 below). Considering this, the Supreme Court found that only the woman who gave birth to a child conceived by artificial fertilisation could be considered its mother under Icelandic law, and neither the first nor the second applicant had given birth to the third applicant.",
"24. Unlike the District Court, however, the Supreme Court found that no family life had existed between the applicants at the time when Registers Iceland’s decision had been rendered, and that the refusal had therefore not constituted an interference with the right to respect for private and family life. In this regard, the Supreme Court referred to the Court’s judgment in Paradiso and Campanelli v. Italy ([GC], no. 25358/12, 24 January 2017) and reasoned as follows:",
"“The preparatory works of [Article 71 of the Constitution (see paragraph 26 below)] state that the concept of ‘family’ refers to family ties in a wide sense. Inter alia with reference to Article 8 § 1 of the United Nations Convention on the Rights of the Child, referred to above, it must be considered that the constitutional provision in question protects only those family ties which have been established in a lawful manner in accordance with domestic law. Accordingly, the applicants’ bond did not enjoy constitutional protection until the child protection committee had approved the [third applicant’s] placement with [the first and second applicants], and then only on the basis of the relationship which later became a formal fostering arrangement. Until then, the family ties in question had not been established in accordance with Icelandic law, since neither [the first] nor [the second] applicant bore the child, nor did they have biological ties with him, which is a prerequisite under section 6(2) of the Children’s Act. This conclusion is also in conformity with the above-mentioned judgment of the European Court of Human Rights. The decision of the defendant, Registers Iceland, of 18 June 2013, which was confirmed by a decision of the Ministry of the Interior on 27 March 2014, did not concern these family ties and therefore did not violate the applicants’ rights under the first paragraph of Article 71 of the Constitution.”",
"25. As matters stand, pursuant to the child protection committee’s decision of 18 December 2019 (see paragraph 12 above), the third applicant is thus permanently fostered by the first applicant and her spouse, but enjoys equal access to the second applicant and her spouse. Ms M. continues to act as his legal guardian."
] | [
"RELEVANT LEGAL FRAMEWORK",
"26. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) read as follows:",
"Article 65",
"“Everyone shall be equal before the law and enjoy human rights irrespective of sex, religion, opinion, national origin, race, colour, property, birth or other status.",
"Men and women shall enjoy equal rights in all respects.”",
"Article 71",
"“Everyone shall enjoy freedom from interference with privacy, home, and family life.",
"...",
"Notwithstanding the provisions of the first paragraph above, freedom from interference with privacy, home, and family life may be otherwise limited by statutory provisions if this is urgently needed for the protection of the rights of others.”",
"27. The relevant provisions of Chapter I-A of Children Act no. 76/2003, entitled “Parents of children”, read as follows:",
"Section 2",
"Paternity rules applying to the children of married couples and [the children] of parents in registered cohabitation [arrangements]",
"“The husband of a child’s mother shall be regarded as its father if it is born during their marriage. The same shall apply if the child is born so soon after the dissolution of the marriage as to make it possible that it was conceived during the marriage. This shall not apply, however, if the couple were judicially separated at the time of the child’s conception, or if the mother married or registered her cohabitation with another man prior to the birth of the child.",
"If, after the birth of a child, the child’s mother marries a man whom she has declared to be the child’s father, that man shall then be regarded as the child’s father if the paternity of the child has not been established previously.",
"If the mother of a child and a man whom she has declared to be the father of the child legally registered their cohabitation prior to the birth of the child, that man shall then be regarded as the child’s father. The same applies if the child’s mother and a man whom she has declared to be the father register their cohabitation in the National Register at a later date, providing that the paternity of the child has not been established by that time.”",
"Section 6",
"Parents of children conceived by assisted conception",
"“A woman who gives birth to a child conceived by assisted conception shall be regarded as its mother.",
"A woman who has given consent for her wife (female partner) to undergo assisted conception treatment under the Assisted Conception Act shall be regarded as the parent of the child conceived in this way. The same shall apply to women who have registered their partnership in the National Register.",
"A man who has given consent for his wife to undergo assisted conception treatment under the Assisted Conception Act shall be regarded as the father of the child conceived in this way. The same shall apply to a man and a woman who have registered their cohabitation in the National Register.",
"A man who donates sperm for use in the assisted conception treatment of a woman other than his wife or cohabiting partner (cf. the third paragraph) under the Assisted Conception Act may not be identified by a court judgment as the father of the child conceived with his sperm.",
"A man who has donated sperm for a purpose other than that stated in the fourth paragraph shall be regarded as the father of a child conceived with his sperm unless the sperm has been used without his knowledge or after his death.”",
"Section 7",
"Registration of children in the National Register",
"“Children shall be registered in the National Register immediately after birth.",
"...”",
"28. The relevant provisions of Act no. 55/1996 on Artificial Fertilisation and the Use of Human Gametes and Embryos for Stem Cell Research read as follows:",
"Section 5",
"Artificial fertilisation treatment",
"“...",
"Surrogacy is prohibited.”",
"Section 17",
"“Violation of the provisions of this Act or the rules based on it entails fines or imprisonment of up to three months.",
"...",
"Complicity in such a violation shall entail the same penalties, unless more severe penalties apply under other legislation.”",
"29. The relevant provisions of Chapter I of Act no. 100/1952 on Icelandic Citizenship, entitled “Citizenship acquired at birth, and so on”, read as follows at the time of the events:",
"Section 1",
"“A child acquires Icelandic citizenship at birth",
"1. if its mother is an Icelandic citizen; [or]",
"2. if its father is an Icelandic citizen and is married to the mother. This shall not apply, however, if the couple had obtained a judicial separation at the time when the child was conceived.",
"Item 2 of the first paragraph shall also apply to the parents of a child conceived by assisted fertilisation (cf. the first sentence of the second paragraph of section 6 of the Children Act).",
"A child found abandoned in Iceland shall, in the absence of proof to the contrary, be considered an Icelandic citizen.”",
"30. The relevant provision of Chapter II of Act no. 100/1952 on Icelandic Citizenship, entitled “Citizenship granted by legislation”, reads as follows:",
"Section 6",
"“ Althingi [the Icelandic Parliament] may grant Icelandic citizenship by legislation.",
"Before an application for citizenship is submitted to Althingi, the Directorate of Immigration shall obtain comments on it from the commissioner of police in the applicant’s locality. The Directorate of Immigration itself shall also submit comments on the application.",
"...”",
"31. The relevant provisions of Child Protection Act no. 80/2002 read as follows at the material time:",
"Section 32",
"Appointment of a legal guardian",
"“Should parents have waived custody or been deprived of custody, guardianship is assumed by the child protection committee whilst that situation prevails. The child protection committee shall retain guardianship of the child until otherwise decided. The child protection committee may request that a legal guardian or financial trustee be appointed for the child, if it believes this to serve the interests of the child.",
"The child protection committee shall assume guardianship of a child if he/she is without a guardian for other reasons, and shall similarly ensure that a legal guardian be appointed, cf. the first paragraph.”",
"Section 65",
"Foster care",
"“For the purpose of this Act, the term ‘foster care’ refers to a situation in which a child protection committee entrusts special foster parents with the care of a child for at least three months where it has been established that:",
"...",
"e. the child, who has come to Iceland without its guardians, is under the care of a child protection committee or [has] asylum or a temporary residence permit in Iceland.",
"Foster care may be of two kinds, permanent or temporary. ‘Permanent foster care’ entails the continuation of the arrangement until duties of guardianship cease under the law. The foster parents generally undertake the duties of guardianship unless some other arrangement is deemed to better serve the needs and interests of the child, in the judgment of the child protection committee. A contract on permanent foster care shall generally not be concluded until after a trial period which shall not exceed one year. ‘Temporary foster care’ entails the continuation of the arrangement for a limited time when it can be expected that the situation may be improved so that the child will be able to return to its parents without substantial disruption of its personal circumstances, or when another remedial measure is expected to be available within a limited time. Temporary foster care shall not last for more than two years in total, save in absolutely exceptional cases when it serves the interests of the child.",
"The objective of foster care under the first paragraph is to ensure a child’s upbringing and care within a family, in keeping with his or her needs. Good conditions shall be ensured for a child with foster parents, and the [foster parents] shall treat the child with care and consideration, and seek to promote the child’s mental and physical development. The rights and obligations of foster parents shall be further specified in a foster care agreement.”",
"Section 66",
"Licencing",
"“Those who wish to provide foster care for a child shall apply to the Government Agency for Child Protection. The child protection committee in the applicants’ home district shall make a report on their fitness to provide foster care for a child, in accordance with further rules to be issued in regulations.”",
"32. The relevant provisions of Act no. 96/2002 on Foreign Nationals, which was applicable at the time of the events, read as follows at the material time:",
"Section 1",
"Scope",
"“The provisions of this Act apply to the authorisation of foreign nationals to enter Iceland and [the authorisation of] their stay in the country. In accordance with this Act, a foreign national is every individual who does not have Icelandic citizenship.",
"...”",
"Section 11",
"Basic requirements for a residence permit",
"“...",
"Under special circumstances, a residence permit may be granted to a foreign national who comes to Iceland for a legitimate and specific purpose if the conditions of the first and second paragraphs are satisfied, even though the person does not fulfil the requirements for a residence permit under sections 12 to 12 e or section 13. Such a residence permit shall not be granted for more than one year at a time, and cannot serve as the basis for a permanent residence permit.”",
"33. The relevant provisions of Act no. 130/1999 on Adoption read as follows:",
"Section 2",
"Who can adopt",
"“A married couple or individuals who have been cohabiting for a period of at least five years shall jointly take part in the adoption process, as only these persons may jointly adopt children, subject to any exemptions provided for in this Article.",
"One of the spouses, or one of the individuals in a cohabitation [arrangement], may, however, with the consent of the other person, be granted permission to adopt the child or the adopted child of the other person.",
"One of the spouses, or an individual who is in a cohabitation [arrangement], may furthermore be granted permission to adopt if the other person has disappeared or is in such a mental state as to not understand the meaning of adoption.",
"A single person may be granted permission to adopt under special circumstances and if the adoption is clearly beneficial for the child.",
"For the purposes of this Act, cohabitation means a cohabitation [arrangement] of two persons which is registered in the population register or which may be ascertained by other unequivocal evidence.”",
"Section 7",
"Consent of the [person with custody] of the child, or [of] a legal guardian",
"“The consent of parents who have custody of a child is required for the adoption of the child.",
"...",
"If a child protection committee has custody of the child, the consent of the committee is required for the adoption.",
"Permission for adoption may be granted even though consent in accordance with paragraph 1 or paragraph 2 is lacking, if the child has been placed in foster care with the applicants and the circumstances of the child otherwise strongly recommend that he or she be adopted.”",
"Section 8",
"Form and content of consent",
"“Consent to adoption shall be given in writing, and the person concerned shall confirm the consent before a member of staff of a District Commissioner, who confirms that the person concerned has been informed of the legal effects of consent and adoption.",
"Consent is not valid unless it has been confirmed three months after the birth of a child at the earliest, unless very special circumstances apply.",
"The consent of parents or a specially appointed legal guardian is valid even though prospective adoptive parents have not been specified, in the event that the consent relates to a child’s placement for adoption with persons to be decided upon by the child protection committee. Otherwise, approval is not valid unless the names of the prospective adoptive parents have been specified.",
"In the event that the consent to adoption is more than 12 months old, then it shall be reconfirmed before the application for adoption is decided upon, unless special circumstances apply.”",
"Section 9",
"Consent granted abroad",
"“The Minister [of Justice] may decide that consent given before a competent authority, court or institute in a foreign country equates to consent given before a member of staff of a District Commissioner (cf. section 8, paragraph 1), and then exceptions from the principles of section 8, paragraphs 2-4, may be granted.”",
"Section 14",
"Fee",
"“Permission for adoption shall not be granted if any person who is to give his or her consent to the adoption receives or pays a fee or receives benefits in relation to the consent, including for loss of income. Written declarations on this subject by the persons concerned may be required.”",
"Section 27",
"The adopted child’s access to information",
"“When an adopted child has reached the age of 18, he or she has the right to receive the available information from the Ministry [of Justice] as to who his or her biological parents or previous adoptive parents are.”",
"Section 36",
"Jurisdiction in adoption cases",
"“A person who resides in Iceland can only adopt a child in accordance with the provisions of this Act.”",
"Section 39",
"Adoption abroad that goes against the basic principles of Icelandic laws",
"“An adoption which takes place abroad is not valid in Iceland if it is contrary to the basic principles of Icelandic laws ( ordre public ).”",
"34. The relevant provisions of Act no. 160/1995 on the Recognition and Enforcement of Foreign Decisions on Child Custody, the Return of Abducted Children, and so on read as follows:",
"Section 2",
"“The Minister [of Justice] may decide that this Act shall be applied to dealings between Iceland and States which are not parties to the European Convention [on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children] or the Hague Convention [on the Civil Aspects of International Child Abduction].”",
"Section 7",
"“An application for recognition or enforcement of a decision shall be rejected if:",
"1. it is manifestly not in conformity with the fundamental principles of Icelandic legislation on the legal status of families and children,",
"...”",
"35. The relevant provisions of Inheritance Act no. 8/1962 read as follows:",
"Section 34",
"“Any person who has attained the age of 18 or has married can, by virtue of [his or her] age, dispose of his or her property by means of a will.",
"A will shall only be valid if the testator is of such sound mind as to be capable of reasonably making the arrangement.”",
"Section 35",
"“If descendants, including descendants by adoption, or a spouse by marriage stand to inherit, the testator can only dispose of one third of his or her property by means of a will.”",
"36. Icelandic Supreme Court case no. 661/2015 concerned the parentage of two children born via gestational surrogacy in Idaho in the United States, using the gametes of their intended father. The children were born in early 2014 and brought back to Iceland by their intended parents, where they applied to Registers Iceland for the children’s registration. Registers Iceland refused the children’s registration on the same grounds as those in the present case. The children were subsequently granted Icelandic citizenship by an Act of Parliament. Upon registering them as citizens, Registers Iceland registered the intended father as both the children’s father and the person with custody of them, considering that the judgment of an Idaho district court confirming that the intended parents were the children’s parents had established the intended father’s biological parentage in a manner consistent with Icelandic law. However, Registers Iceland refused to register the intended mother as the children’s mother, citing the fundamental rule of Icelandic law that a woman who gave birth to a child was always considered its mother. The intended parents sued and demanded that the intended mother be registered as the children’s mother. By a judgment of 2 July 2015, the District Court of Reykjavik found in favour of the intended parents, concluding that the refusal to register the intended mother as the mother had unlawfully interfered with the family’s right to respect for private and family life. The Government appealed against that judgment, but prior to that appeal Registers Iceland complied with the District Court’s ruling and registered the intended mother as the children’s mother. The Government’s appeal to the Supreme Court was therefore dismissed by a judgment of 9 June 2016, as an appeal to overturn the District Court’s ruling was considered incompatible because that ruling had already been complied with.",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The applicants complained of a violation of their right to respect for private and family life as provided for in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"AdmissibilityThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"38. The Government submitted that the applicants had not exhausted domestic remedies, as neither the first nor the second applicant had applied to adopt the third applicant after their divorce, either as individuals or with their new spouses. The Government argued that this avenue was available to the applicants, and that it would have resulted in the recognition of the parent-child relationship between the applicants, rendering it an effective domestic remedy which had not been exhausted. The Government therefore submitted that the applicants had not complied with the admissibility criteria of Article 35 § 1 and that their application should be declared inadmissible.",
"39. The Government furthermore submitted that the application was manifestly ill-founded within the meaning of Article 35 § 3 (a), and should, as such, be declared inadmissible.",
"40. The applicants objected to the Government’s submissions concerning the admissibility of their complaints. They submitted that an adoption application was not a remedy to be exhausted prior to applying to the Court, and that the District Commissioner’s reaction to the adoption application which they had submitted prior to the divorce, coupled with the fact that their reply had gone unanswered for half a year before they had withdrawn the application, had indicated that it would not have been approved in any event (see paragraphs 14 to 16 above). Furthermore, the applicants submitted that adoption was no longer available to the first two applicants jointly, as they were now divorced. Moreover, they had not wanted to upset the balance of the family which they had created by either the first or the second applicant applying on her own to adopt the third applicant, as, from a formal perspective, that would have had the effect of severing the ties that the third applicant had with the other parent.",
"The Court’s assessment",
"41. The Court considers that the Government’s objection concerning the exhaustion of domestic remedies raises issues closely linked to the merits of the complaints. Thus, the Court decides to join this objection to the merits of the case, and considers that the issue falls to be examined below.",
"42. As for the remaining objection, the Court finds that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor are they inadmissible on any other grounds. They must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"43. The applicants submitted that the refusal by the authorities to register the first and second applicants as the third applicant’s parents had amounted to an interference with their right to respect for private and family life. They argued that the refusal had prevented them from enjoying a stable and legal parent-child relationship, and that all three of them had been affected by the interference, since the first two applicants did not have legal or physical custody of the third applicant, whom they regarded as their son.",
"44. The applicants also submitted that the refusal to recognise the third applicant’s birth certificate, which had been issued in accordance with California law, had violated Article 8.",
"45. The applicants maintained that the refusal had not been in accordance with the law. Although surrogacy was illegal in Iceland, they maintained that the ban on surrogacy did not apply extraterritorially, and that they had gone through the surrogacy process in California in full accordance with the law of that state.",
"46. The applicants also maintained that the best interests of the child had not been sufficiently taken into account by the authorities. In this regard, the applicants submitted that the first and second applicants and their new spouses had undergone a screening process and an evaluation of their ability to provide for and care for the third applicant in relation to his placement in their foster care, pursuant to section 66 of the Child Protection Act (see paragraph 31 above). Their results had been very good, and the third applicant was well cared for by the first and second applicants. They had also protected his interests by applying for him to have citizenship, and had informed him of the manner of his birth, as he had had a right to know.",
"47. The applicants submitted that the child’s stable social relationship with the first and second applicants was not sufficiently well protected by the foster system. Inter alia, the refusal to recognise them as his parents had resulted in the third applicant not having inheritance rights vis-à-vis the first and second applicants, and vice versa (see paragraph 35 above). In addition, the applicants submitted that they lived in a state of uncertainty which had caused them anguish and distress, forcing them to maintain a position as foster parents and foster child.",
"(b) The Government",
"48. The Government acknowledged that the non-recognition of a parent-child relationship between the applicants had amounted to an interference with the private life of the third applicant, but submitted that the non-recognition had not interfered with the private life of the first and second applicants, or with the applicants’ family life. In any event, they submitted that there had been no violation of the applicants’ right to respect for their private and family life.",
"49. The Government submitted that there had been extensive national and political debate on the subject of surrogacy in the country. This had included a working group on surrogacy appointed by the Minister of Health, whose 2010 report had concluded that surrogacy should not be legalised. Following a successful parliamentary proposal in 2011, a bill legalising altruistic surrogacy with a biological link to one of the intended parents had been introduced in Parliament twice, but had not been voted on. The Government therefore submitted that adoption was the only available avenue for intended parents to have their relationship with a child born by way of surrogacy recognised as a parent-child relationship.",
"50. The Government submitted that Article 8 of the Convention did not guarantee the right to found a family or the right to adopt. They furthermore reasoned that the State should enjoy a wide margin of appreciation when deciding on matters concerning surrogacy and assisted reproduction techniques, particularly in cases such as the present one, where there was no biological link between the child and the intended parents. The Government emphasised that domestic law placed a ban on surrogacy which the applicants should not be allowed to circumvent by arranging surrogacy abroad.",
"51. The Government reasoned that the applicants had not been through any official screening process in Iceland, such as those in place for adoption procedures, and the fact that the surrogacy in this case had been commercial in nature had created a risk of the surrogate mother and the child being exposed to exploitation and abuse. They submitted that the ban on surrogacy excluded the possibility that a woman who gave birth to a child could relinquish her natural status as its mother, and prevented a woman from being pressured to allow her body to be used to bear a child with whom she must then sever all ties. They also submitted that the ban on surrogacy protected children’s right to know about their origins, as children born by way of surrogacy would face difficulties in seeking information about their biological parentage.",
"Third-party interveners",
"(a) Ordo Iuris",
"52. The third-party intervener Ordo Iuris submitted that there was no European consensus on the lawfulness of surrogacy arrangements, and that member States should therefore be afforded a wide margin of appreciation in determining whether and how to recognise parent-child relationships between children born through surrogacy and their intended parents.",
"53. Ordo Iuris also argued that the right to respect for private life did not oblige member States to recognise foreign birth certificates which did not reveal information about a child’s biological mother, particularly as this could undermine the child’s opportunity to obtain information about his or her biological identity.",
"54. Lastly, Ordo Iuris argued that Article 8 did not protect a “potential relationship” between an intended parent and a child born by way of surrogacy, in the absence of a genetic relation or an emotional bond between the two.",
"(b) The AIRE Centre (Advice for Individual Rights in Europe)",
"55. The third-party intervener the AIRE Centre submitted extensive material on international surrogacy arrangements and the various legal implications they entailed. It submitted that the Court should ascertain whether the child’s best interests had been duly and demonstrably assessed, if necessary with the assistance of an independent representative. It reasoned that the Court should have regard not only to the Convention and its own case-law on the subject of surrogacy, but also to the United Nations Convention on the Rights of the Child (CRC) and the general comments on its provisions made by the Committee on the Rights of the Child. Consequently, the best interests of the child should be accorded at least primary consideration in decisions concerning the recognition of legal parentage in such cases, as was required by Article 3 of the CRC and the Committee on the Rights of the Child’s General Comment No. 14. Furthermore, referring to Article 21 of the CRC, the AIRE Centre submitted that if the question of the recognition of intended parents’ parentage were treated as being analogous to cases of adoption, then the best interests of the child should be of paramount importance.",
"The Court’s assessment",
"(a) Whether a “family life” existed between the applicants",
"56. The existence or non-existence of “family life” is essentially a question of fact depending upon the existence of close personal ties. The notion of “family” in Article 8 concerns marriage-based relationships, and also other de facto “family ties”, including between same-sex couples, where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017, and the sources cited therein, and Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 130, 21 July 2015).",
"57. The provisions of Article 8 do not guarantee either the right to found a family or the right to adopt. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family, or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father, or the relationship that arises from a genuine marriage, even if family life has not yet been fully established, or the relationship between a father and his legitimate child even if it proves, years later, to have had no biological basis, or the relationship that arises from a lawful and genuine adoption (see Paradiso and Campanelli, cited above, § 141, and the sources cited therein).",
"58. The Court must ascertain whether, in the circumstances of the case, the relationship between the first two applicants and the child, the third applicant, came within the sphere of family life within the meaning of Article 8. At the outset, the Court notes that the first and second applicants divorced whilst the judicial proceedings were ongoing at national level, and before the Supreme Court of Iceland rendered the judgment in their case on 30 March 2017 (see paragraph 12 above). Before this Court, the question of whether Article 8 is applicable will therefore be examined by taking account of the facts at the point in time when the Supreme Court of Iceland delivered its judgment in the present case, in particular having regard to the way in which the factual ties and relationships between the first two applicants, together and subsequently individually, and the third applicant had developed from his birth up until the end of March 2017.",
"59. The Court notes that it is not contested that there is no biological link between the three applicants. The situation is therefore comparable to that in the leading case of Paradiso and Campanelli (cited above), where a child born by way of surrogacy abroad was removed from its intended parents shortly after their arrival in their home country, taken into State care and later adopted by another family. In that case, the Court found that the conditions for the existence of “family life” had not been met, owing to the short duration of the relationship which the intended parents had had with the child, which had only lasted about eight months, and the uncertainty of the ties from a legal perspective, in spite of the existence of a parental project and the quality of their emotional bonds. However, as the Court explained in Paradiso and Campanelli (cited above, §§ 148-149), it does accept, in certain situations, the existence of de facto family life between an adult or adults and a child in the absence of biological ties or a recognised legal tie, provided that there are genuine personal ties. It is therefore necessary, in the instant case, to consider the quality of the ties, the role played by the applicants vis-à-vis the third applicant and the duration of both their cohabitation all together and the third applicant’s subsequent cohabitation with the first two applicants individually (ibid., § 151).",
"60. At the outset of this assessment the Court notes that unlike in the situation in Paradiso and Campanelli (cited above), the relationship between all three applicants was not severed by decisions of the national authorities. On the contrary, the third applicant was initially placed in the first and second applicants’ foster care in accordance with national law, an arrangement which was subsequently made permanent until their divorce in May 2015. Following the divorce and until the Supreme Court delivered its judgment on 30 March 2017, a new foster care arrangement was put in place whereby the third applicant spent alternate years with the first and then the second applicant, with equal access granted to the applicant not acting as the foster parent at that time (see paragraph 12 above). Although not directly relevant for the Court’s assessment, the Court further reiterates that the third applicant was subsequently placed in the permanent foster care of the first applicant and her spouse on 18 December 2019, but continues to enjoy equal access to the second applicant and her spouse.",
"61. The Court notes that surrogacy is unlawful in Iceland and is subject to criminal liability if it takes place within Icelandic jurisdiction (see paragraph 28 above). The Court also observes that the basic principle of motherhood under Icelandic law, as submitted by the Government and evidenced in, inter alia, section 6(1) of Children Act no. 76/2003 (see paragraph 27 above), is that the woman who gives birth to a child is considered its mother. Under these circumstances, the Court accepts that the ties between the three applicants were legally uncertain at the outset, as in the case of Paradiso and Campanelli (cited above). However, it cannot be overlooked that the third applicant has been in the uninterrupted care of the first and second applicants since he was born in February 2013. It follows that upon the delivery of the final domestic judgment at the end of March 2017, the three applicants had been bonded for over four years: the third applicant’s entire life. The third applicant remained with the first two applicants, in their legally established foster care, after the initial refusal by Registers Iceland and throughout the judicial proceedings before the District Court and the Supreme Court, initially when all the applicants were together, and subsequently when the third applicant was placed with the first two applicants individually; that arrangement proceeded without any interference by the authorities other than a decision on legal custody and the appointment of a legal guardian, taken three months later. The relationship between the first two applicants and the third applicant was thus clearly strengthened by the passage of time, reinforced by the legally established foster care arrangement. The first and second applicants argued that they had assumed the role of the third applicant’s parents, and that he regarded them as such. The quality of their bond has not been contested by the Government.",
"62. In the light of the above, the Court concludes, applying the test for the applicability of “family life” under Article 8 of the Convention, as laid down in Paradiso and Campanelli (cited above, §§ 148-151), that the requirements of “family life” have been fulfilled on the particular facts of the present case. In this regard, the Court has taken account of the long duration of the first two applicants’ uninterrupted relationship with the third applicant, the quality of the ties already formed and the close emotional bonds forged with the third applicant during the first stages of his life, reinforced by the foster care arrangement adopted by the national authorities and not contested by the Government before the Court.",
"(b) Whether there was a violation of the applicants’ right to respect for family life",
"(i) Whether there was an interference with the right to respect for family life",
"63. Having established that the applicants’ complaint concerned their “family life” within the meaning of Article 8, the Court also considers that the refusal to recognise the first and second applicants as the third applicant’s parents, despite the Californian birth certificate to that effect, amounted to an interference with the three applicants’ right to respect for that family life (see Mennesson v. France, no. 65192/11, § 49, ECHR 2014 (extracts)). Under Article 8 § 2, such an interference must be in accordance with the law, pursue one or more of the legitimate aims listed in the provision and be necessary in a democratic society in order to achieve the aim or aims concerned.",
"(ii) Whether the interference was in accordance with the law",
"64. The Court notes that there was no explicit legal provision in Icelandic law which established a general rule on how to determine who was considered a child’s mother. However, the Supreme Court’s judgment gave detailed reasoning as to why it considered that the general rule on maternity under Icelandic law was that the woman who gave birth to a child was considered its mother (see paragraph 23 above). In this regard, the Supreme Court reiterated the legal prohibition of surrogacy established in the fourth paragraph of section 5 of Act no. 55/1996 on Artificial Fertilisation and the Use of Human Gametes and Embryos for Stem Cell Research. Furthermore, the Supreme Court noted that in situations involving assisted conception treatment, the first paragraph of section 6 of Children Act no. 76/2003 provided that the woman who gave birth to a child was considered its mother, while the second paragraph provided that a woman who consented to her wife undergoing such treatment was considered the child’s parent. Considering these provisions, and the ban on surrogacy, the Supreme Court considered that only the woman who gave birth to a child following artificial fertilisation could be considered its mother, and that consequently neither the first nor the second applicant could be considered the third applicant’s mother under Icelandic law. Considering that this interpretation of domestic law is neither arbitrary nor manifestly unreasonable, the Court concludes that the refusal to recognise the first and second applicants as the third applicant’s parents had a sufficient basis in law.",
"(iii) Whether the interference pursued a legitimate aim",
"65. According to the Government’s submissions, the ban on surrogacy served to protect the interests of women who might be pressured into surrogacy, as well as the rights of children to know their natural parents. In the light of this, the Court finds that the refusal to recognise the first and second applicants as the third applicant’s parents pursued the legitimate aim of protecting the rights and freedoms of others (see Mennesson, cited above, § 62, and Paradiso and Campanelli, cited above, § 177).",
"(iv) Whether that interference was necessary in a democratic society",
"(α) Relevant principles",
"66. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see Paradiso and Campanelli, cited above, § 179, and the sources cited therein).",
"67. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it. Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating the complex and sensitive matter of the relationship between intended parents and a child born abroad as a result of commercial surrogacy arrangements, which are prohibited in the respondent State (ibid., § 180, and the sources cited therein).",
"68. According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests. In determining whether an interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (ibid., § 181).",
"69. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (ibid., § 182). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I, and A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Paradiso and Campanelli, cited above, § 182, and the sources cited therein).",
"70. As regards the Court’s recognition that the States must in principle be afforded a wide margin of appreciation regarding matters which raise delicate moral and ethical questions on which there is no consensus at European level, the Court refers, in particular, to the nuanced approach adopted on the issue of heterologous assisted fertilisation in S.H. and Others v. Austria ([GC], no. 57813/00, §§ 95-118, ECHR 2011), and to the analysis of the margin of appreciation in the context of surrogacy arrangements and the legal recognition of the parent-child relationship between intended parents and the children thus legally conceived abroad in Mennesson (cited above, §§ 78-79).",
"(β) Application of the principles to the present case",
"71. The Court notes that the three applicants’ actual enjoyment of their family life was not interrupted by an intervention by the respondent State. On the contrary, the respondent State took measures to have the third applicant fostered by the first and second applicants, and it seems that their joint adoption of the third applicant was an option open to them until their divorce. Upon their divorce, the respondent State concluded a new foster care agreement with the first applicant, which was set on the condition that the second applicant continue to enjoy equal custody of him. Thus, the respondent State took steps to ensure that the three applicants could continue to lead a family life, despite the non-recognition of a parental link and despite the first and second applicants’ divorce. Although the Court recognises that the non-recognition has affected the applicants’ family life, the enjoyment of that family life was also safeguarded by the foster care arrangement being rendered permanent, which must be considered to substantially alleviate the uncertainty and anguish cited by the applicants (see paragraph 47 above).",
"72. Additionally, the Court notes that the respondent State granted the third applicant citizenship by a direct Act of Parliament, which had the effect of regularising and securing his stay and rights in the country. Actual, practical obstacles to the enjoyment of family life created by the non-recognition of a family link therefore seem to have been limited (see, for example, Mennesson, cited above, § 92).",
"73. The Court reiterates that the final decision which is the subject of the present assessment is the judgment of the Supreme Court of Iceland of 30 March 2017, wherein the Supreme Court rejected the applicants’ claims to annul the refusal to register the parental link and oblige Registers Iceland to register the third applicant as the first and second applicants’ son (see paragraphs 22 to 24 above). Prior to the rendering of the Supreme Court’s judgment and subsequent to their divorce, the first and second applicants withdrew their application to adopt the third applicant of their own motion, and that adoption application was not the subject of judicial proceedings. Thus, no final determination has been made as to the first and second applicants’ right to adopt the third applicant. The issue before the Court is therefore limited to the matter of registration of a parental link, which was the subject of the applicants’ judicial proceedings that were concluded by a final judgment of the Supreme Court of Iceland on 30 March 2017 (see paragraphs 22 to 24 above). The Government’s objection that the applicants have not exhausted domestic remedies is accordingly dismissed.",
"74. The Court nevertheless notes the Government’s submission that either the first or the second applicant may still apply to adopt the third applicant, as individuals or together with their new spouses. Although mindful of the practical problems that might arise due to the fact that only one of the first two applicants can be permitted to adopt the child, the Court takes this possibility into account in its holistic examination of the necessity of the interference, in particular as regards the Article 8 rights of the child, the third applicant.",
"75. Considering all of the above, in particular the absence of an indication of actual, practical hindrances in the enjoyment of family life, and the steps taken by the respondent State to regularise and secure the bond between the applicants, the Court concludes that the non-recognition of a formal parental link, confirmed by the judgment of the Supreme Court, struck a fair balance between the applicants’ right to respect for their family life and the general interests which the State sought to protect by the ban on surrogacy. The State thus acted within the margin of appreciation which is afforded to it in such matters. There has accordingly been no violation of Article 8 of the Convention with regard to the applicants’ right to respect for their family life.",
"(c) Whether there was a violation of the applicants’ right to respect for private life",
"76. The Court observes that the arguments submitted by the applicants in relation to their complaint concerning respect for their “private life” are in principle the same as those submitted in relation to their complaint concerning respect for their “family life”. In the light of this, the Court sees no reason to reach a different conclusion as to the former complaint. There has accordingly been no violation of Article 8 with regard to the applicants’ right to respect for their private life.",
"ALLEGED VIOLATION OF ARTICLE 14 in conjunction with article 8 OF THE CONVENTION",
"77. The applicants complained that they had been discriminated against in the enjoyment of their right to respect for private and family life on account of their status, in breach of Article 14 of the Convention, taken in conjunction with Article 8. Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"78. The applicants submitted that there were known instances where other children born via a surrogate mother had been allowed to have the parentage of their intended parents registered, and referred to another Icelandic court case concerning surrogacy (see paragraph 36 above). They submitted that they had been discriminated against in this regard.",
"79. An examination by the Court of the material submitted to it does not disclose any appearance of a violation. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention."
] |
12 | R.B. v. Estonia | 22 June 2021 | This case concerned the failure to conduct an effective criminal investigation into the applicant’s allegations of sexual abuse by her father. The applicant was about four and a half years old at the relevant time. Her complaint concerned procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of her father on procedural grounds. | The Court held that there had been significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which had not sufficiently taken into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, without expressing an opinion on the guilt of the accused, the Court concluded that the manner in which the criminal-law mechanisms as a whole had been implemented in the present case, resulting in the disposal of the case on procedural grounds, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention. | Children’s rights | Children’s testimony | [
"2. The applicant was born in 2007. She was represented by Mr H. Kuningas, a lawyer practising in T.",
"3. The Government were represented by their Agent, Mrs M. Kuurberg, Agent of the Government to the European Court of Human Rights.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. The applicant was born in August 2007. In September 2010 her parents separated. The applicant continued to live with her mother and met with her father in accordance with an agreement between the parents. As from February 2012 meetings with the child took place pursuant to arrangements fixed by a court (see civil proceedings below).",
"6. According to statements given by the applicant’s mother in the subsequent criminal proceedings, she had become suspicious of the father’s behaviour already in 2009 when her daughter had complained of pain in her bottom. In 2011 she had started noticing changes in her daughter’s behaviour when she returned from visits with her father. When questioned, her daughter had revealed that she had been sleeping naked with her father, that she had massaged him all over the body, including his genitals, and that he had inserted his fingers in her anus and vagina, causing pain.",
"Criminal proceedings",
"7. On 19 March 2012 the applicant, who at the time was about four and a half years old, made an oral report of a crime to the police. Her statements were video-recorded and transcribed by a female senior investigator from the child protection service in the presence of a psychologist and the applicant’s mother. During the interview, the applicant recounted how she and her father had massaged each other, including her stroking his sexual organ, and demonstrated her father’s activities on a doll.",
"8. On the basis of that report, criminal proceedings were instituted against the applicant’s father. Later the same day, 19 March 2012, the applicant was questioned as a victim of crime by an investigator in the presence of the same psychologist and the applicant’s mother. The interview was also video-recorded.",
"9. On 3 April 2012 the investigator commissioned a comprehensive psychiatric and psychological assessment of the applicant, which was carried out from 9 to 26 April 2012. According to the expert report of 3 May 2012, the applicant was suffering from separation anxiety, but her psychological development was appropriate to her age and she had no increased tendency to fantasise. However, she was too young to attend court hearings and give statements there.",
"10. On 16 May 2012 a further video-recorded interview of the applicant took place in the presence of her mother.",
"11. On 20 June 2012 the applicant’s father was questioned as the suspect.",
"12. On 29 June 2012 an expert conducted a physical examination of the applicant and found no bodily injuries on her person, including in the rectal or genital area.",
"13. On 27 August 2012 the video-recordings of the applicant’s interview were presented to the suspect in the presence of his counsel. It was explained to them that they could submit any questions to the applicant in writing.",
"14. On 3 September 2012 a second interview with the suspect took place.",
"15. On 18 February 2013, following a psychiatric assessment of the suspect, the experts found no reason to establish any sexual disorder and concluded that he was mentally healthy.",
"16. On 27 June 2013 the prosecutor drew up a bill of indictment and submitted it to the County Court. According to the charges, in the period from 2009 to March 2012 the applicant’s father had repeatedly engaged in sexual intercourse with his daughter, taking advantage of the child’s inability to comprehend, by inserting his finger into the child’s vagina and anus. In addition, by ordering his daughter to stroke his sexual organ, he had engaged in a sexual act other than intercourse with a child. Those acts were qualified under the provisions of Articles 141 (rape) and 142 (involvement of a minor in satisfaction of sexual desire) of the Criminal Code, as applicable at the time.",
"17. The County Court held a preliminary hearing in October 2013. Further in camera hearings took place in February, April and October 2014. The victim’s statements given during the investigation were disclosed and the court heard several witnesses, including those for the defence, as well as the experts who had prepared written reports.",
"18. The accused pleaded not guilty. He argued, inter alia, that his daughter’s testimony was unreliable and contradictory. Her answers during the police interviews had been influenced by the presence of her mother, who had intervened and enticed the child with different promises. The interviews lasting over an hour had been too long for a small child, resulting in tiredness and a desire to please her interrogators, who had used leading questions. The criminal proceedings were a tool used by her mother to limit his access to the child.",
"19. By a judgment of 4 November 2014, the County Court convicted the applicant’s father as charged and sentenced him to imprisonment for a term of six years.",
"It found that the applicant’s testimony had been confirmed by the statements of her mother, witness statements and expert opinions. Having reviewed the video-recordings of the applicant’s questioning, the court found no undue influence or pressure on the part of the applicant’s mother or the investigator. It considered that the applicant had recounted actual events and found that there was no indication that she had been manipulated or that she was prone to fantasise. The fact that no injuries had been found on her body did not exonerate the accused, as her physical examination had taken place long after the events, and the touching of the accused’s sexual organs would not have left any traces. Nor was it important that the accused had not been diagnosed with any sexual disorder.",
"20. On 12 December 2014 the accused lodged an appeal against the judgment of the County Court. He submitted, inter alia, that his conviction was essentially based on the unreliable testimony of a four and a half year-old child, and reiterated the arguments he had made before the first-instance court concerning the conducting of interviews (see paragraph 18 above).",
"21. On 18 March 2015 the Court of Appeal, composed of three judges, dismissed the appeal and upheld the judgment of the County Court. While it accepted that the credibility of the applicant’s testimony was central to the case, upon reviewing the relevant video-recordings it found no indication of any undue influence on the child victim. It pointed out that the use of leading questions was authorised by the Code of Criminal Procedure in a situation where the age of a witness made it difficult for him or her to understand questions that were not leading. It also found that the presence of the applicant’s mother during the interviews had been in compliance with the criminal procedure. It referred to Article 20 of EU Directive 2011/92/EU, which required a Member State to ensure effective protection of the rights of children in criminal proceedings, including the possibility for a child victim to be accompanied by his or her representative during the provision of testimony.",
"22. One judge of the Court of Appeal dissented, finding issues with both the reliability of the victim’s testimony and the way it had been taken. In particular, he considered that the testimony of the child victim had been obtained in breach of two essential requirements of criminal procedure. First, the child had not been informed of her obligation to tell the truth, so that she could understand the consequences of her testimony for her father. Secondly, the child had not been advised of her right not to give evidence against her next of kin. Those two requirements were clearly set out in law and applied also to minors, who should be informed thereof in a manner appropriate to their age. In practice, this had been done in other criminal cases.",
"23. On 17 April 2015 the accused appealed, emphasising the inconsistency and unreliability of the evidence and arguing that there had been several violations of criminal procedure, including those highlighted by the dissenting judge of the Court of Appeal.",
"24. On 23 October 2015 the Supreme Court quashed the judgments of the County Court and the Court of Appeal and acquitted the applicant’s father. It held that as the accused’s conviction was based to a decisive extent on the testimony of the child victim, it was important to follow rigorously the rules concerning the victim’s questioning. The lower courts, however, had relied on the statements given by the victim in the pre-trial proceedings, despite the fact that she had not been made aware of the obligation to speak the truth (Article 66 § 3 of the Code of Criminal Procedure) and had not been advised that she could refuse to give testimony against her father (Article 71 § 1 (1) of the same Code). It stressed that while the age of a witness should be taken into consideration when questioning him or her, the obligation to explain the need to tell the truth could not be disregarded, as this affected the weight of the credibility of the testimony. It further stated that there was no exception for minors from the general rule that one could refuse to give testimony for personal reasons. Should there be a need to depart from the general rules for questioning witnesses because of their age or mental state, it would be for the legislature to determine the situations justifying such departure. Statements obtained from the victim without informing her of her rights and obligations could not be considered lawful evidence, as they had been obtained by materially breaching the procedural law. The failure to provide the information could not be remedied by remitting the case to the lower-instance courts, as the victim had been heard during the pre-trial proceedings and not in court. The exclusion of the decisive evidence inevitably meant that the accused had to be acquitted of the charges against him.",
"25. The Supreme Court also dealt with other procedural issues, pointing out further deficiencies in the lower-instance courts’ judgments. Firstly, the first-instance court and Court of Appeal had, contrary to the domestic procedural law, treated the statements given by a number of witnesses who had not been direct witnesses to any of the alleged offences as independent evidence, rather than hearsay. Secondly, the Court of Appeal had referred in its reasoning to the explanations given by the applicant during preparation of an expert opinion, despite the fact that those could not be used as evidence. Thirdly, the lower-instance courts had erroneously equated the oral report of a criminal offence as recorded by the police with the report of the victim’s testimony. This could be done only if the victim had been heard at the same time as the drawing up of the offence report and had then been duly informed of his or her rights and obligations. As this had not been done, relying on such a report as evidence amounted to a violation of procedural law.",
"26. The Supreme Court found no issue with the presence of the applicant’s mother during the interviews. Although that situation was not specifically regulated in domestic law, the right for a child to be accompanied by his or her legal representative derived from Article 20 of EU Directive 2011/92/EU. Furthermore, the use of leading questions was clearly provided for by law.",
"27. The Supreme Court further noted that although the accused’s counsel had no right to be present during the interviews with the victim, he had had the opportunity, which he had not used, to put questions to the victim at both the pre-trial and court proceedings.",
"28. Lastly, as regards the issue of credibility of the victim’s testimony, the Supreme Court found that the lower courts had failed to deal with the course of events prior to the reporting of an offence, including the possible effect of time and psychological consultations on the victim’s memory. Consideration should have been given to the terminology used by the victim and to other circumstances capable of indicating that her statements might have been influenced by other people.",
"Civil proceedings",
"29. On 20 February 2012 the County Court fixed the arrangement for the applicant’s contact with her parents. On 5 April 2012 the arrangement was amended so as to limit the father’s access in view of the criminal proceedings instituted against him on 19 March 2012.",
"30. On 26 June 2013 the court barred the applicant’s father’s access to her completely.",
"31. On 20 November 2013 the civil proceedings were suspended pending the outcome of the criminal case against the applicant’s father. Following the Supreme Court decision of 23 October 2015 acquitting the applicant’s father, the civil proceedings were resumed on 9 November 2015.",
"32. On 4 May 2016 the County Court issued a decision on the care of and access to the applicant, which was upheld by the Court of Appeal. However, the decision was quashed by the Supreme Court and the case was remitted to the Court of Appeal for fresh consideration.",
"33. On 26 June 2017 the Court of Appeal granted sole custody of the applicant to her mother and barred the father’s access to her completely until she reached the age of majority. It found it established that he had sexually abused the applicant, thereby endangering her physical, mental and spiritual well-being. The finding was based on the testimony of the child heard before the first-instance court, the statements of her mother and witnesses, as well as on an expert opinion concerning the child’s mental development. The Court of Appeal did not agree with the argument of the applicant’s father to the effect that since he had been acquitted in the criminal proceedings, it was not open to the civil courts to rely on the allegations of sexual abuse. The Supreme Court’s judgment related to his criminal liability, whereas the civil courts had to assess whether his behaviour constituted a danger to the child in the context of a custody-and-contact dispute. In carrying out this assessment, the courts had to take into account all the evidence submitted and decide whether an allegation made by a party had been proven. The Court of Appeal found it important to note that the applicant’s father had been acquitted by the Supreme Court on account of a material breach of procedural law, not because of lack of a criminal offence.",
"34. It appears that no appeal was lodged against the decision of the Court of Appeal."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"I. DOMESTIC LAW AND PRACTICE",
"Constitution",
"35. Under Article 22 of the Constitution, no one may be compelled to testify against himself or herself, or against those closest to him or her. Article 25 provides that everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered as a result of the unlawful actions of any person.",
"Criminal Code",
"36. The sexual offences included in the Criminal Code include rape (Article 141), and intercourse or other acts of a sexual nature with a child (currently Article 145). In relation to sexual offences, a person is deemed to be incapable of comprehension if he or she is under ten years of age (Article 147).",
"Code of Criminal Procedure",
"37. The relevant provisions of the Code of Criminal Procedure read as follows:",
"Article 38. Rights and obligations of victims",
"“ (1) A victim has the right to:",
"... 3) give or refuse to give testimony in accordance with the provisions of Articles 71 to 73 of this Code.”",
"Article 66. Witness",
"“...",
"(3) A witness is required to give testimony unless there are lawful grounds under Articles 71 to 73 of this Code for refusal to give testimony. When giving testimony, the witness is required to tell the truth.”",
"Article 70. Specifications concerning hearing of witnesses who are minors",
"“ (1) A body conducting proceedings may involve a child protection official, social worker, teacher or psychologist in the hearing of a witness who is a minor.",
"(2) If a body conducting proceedings has not received appropriate training, involvement of a child protection official, social worker, teacher or psychologist in the hearing of a minor is mandatory if:",
"1) the witness is under ten years of age and repeated questioning may have a harmful effect on the minor’s mind;",
"2) the witness is under fourteen years of age and the questioning is related to domestic violence or sexual abuse;",
"3) the witness has a speech impairment, sensory or learning disability or a mental disorder.",
"(3) If necessary, the questioning of minors is video recorded. In the case specified in paragraph (2) of this Article, the questioning of minors is video recorded if the intention is to use the interview as evidence in court proceedings because the minor cannot be heard directly in a court on account of his or her age or mental state.",
"(4) A suspect has the right to examine during the pre-trial proceedings the video recordings specified in paragraph (3) of this Article. The suspect or his or her counsel has the right to submit questions to witnesses within five days of the examination. A prosecutor’s office shall review a request within five days of receipt thereof. Dismissal of a request shall be formalised by a decision, a copy of which shall be communicated to the person who submitted the request. Dismissal of a request shall not prevent re-submission of the request in accordance with the procedure provided for in Article 225 of this Code or in the court proceedings.”",
"Article 71. Refusal to give testimony for personal reasons",
"“(1) The following persons have the right to refuse to give testimony as witnesses: 1) the descendants and ascendants of the suspect or accused;",
"...”",
"Article 287 1. Questioning of witness",
"“...",
"(3) Before interviewing a witness, the court shall explain to the witness the legal bases for refusing to give testimony and the obligation to speak the truth in court, and shall obtain the signature of the witness to this effect.",
"(4) A judge shall warn a witness of fourteen years of age or older that he or she shall be held criminally liable if he or she refuses to give testimony without any legal grounds or if he or she knowingly gives false testimony.",
"...”",
"Article 288 1. Leading questions",
"“ ...",
"(2) For the purpose of facilitating progress in the hearing of a witness, a court may allow leading questions to be posed in other circumstances if:...",
"2) the question pertains to an established fact or contains a statement which is not contested;",
"3) the question is necessary for the purpose of introducing the main question;",
"4) due to the age or state of health of the witness, it is difficult for him or her to understand questions which are not leading;",
"5) the witness states that he or she does not remember well the circumstances which are the object of the questioning.”",
"Article 290 1. Specific requirements for testimony given in pre-trial proceedings by witnesses who are minors",
"“ (1) A court may not summon a minor at the request of a party to the court proceedings or admit as evidence testimony given by the minor in pre-trial proceedings, provided that the testimony was video-recorded and counsel has had the opportunity to pose questions to the witness in the pre-trial proceedings about the facts relating to the subject of proof, if:",
"1) the witness is under ten years of age and repeated questioning may have a harmful effect on his or her mental state;",
"2) the witness is under fourteen years of age and the hearing is related to domestic violence or sexual abuse;...",
"(2) If after examination of the evidence specified in paragraph (1) of this Article the court finds that it is necessary to question the minor about additional circumstances, it may question the witness on its own initiative or on the basis of written questions prepared by the parties to the court proceedings.”",
"Guidelines on the special treatment of minors in criminal proceedings, issued by the Prosecutor General on 29 June 2007",
"38. The Guidelines state that the right to refuse to give testimony must be explained to a minor thoroughly in a manner which he or she is capable of understanding. It is recommended to use the assistance of a specialist in explaining to a minor his or her rights. Interviewing a suspect who is a minor does not differ from interviewing an adult suspect. However, procedural measures taken in respect of minors must take into account their age and the interests of the child. If possible, a witness under the age of ten should not be questioned at trial in order to avoid harmful consequences for the child (points 8-10 of the Guidelines).",
"Act on Compensation for Damage Caused in Criminal Proceedings",
"39. The relevant provisions of the Act, which entered into force on 1 May 2015, read as follows :",
"Section 7. Compensation for damage regardless of final outcome of criminal proceedings",
"“ (1) If a body conducting proceedings has violated procedural law and thereby caused damage to a person, the person has the right to claim compensation for such damage, regardless of the final outcome of the criminal proceedings by which the damage was caused to the person.",
"(2) A body conducting proceedings is exonerated from liability if it proves that it is not at fault in causing the damage.",
"(3) If the damage specified in subsection (1) of this section is caused by a court, the state is liable under the State Liability Act.",
"...”",
"Section 11. Compensation for non-pecuniary damage",
"“...",
"(2) A natural person shall be compensated for non-pecuniary damage under section 7 of this Act only if the person was deprived of liberty; he or she was tortured or treated inhumanly or degradingly; damage was caused to his or her health, the inviolability of his or her home or right to respect for private life; the confidentiality of his or her messages was breached or his or her honour or good name was tarnished in the criminal proceedings. Fault on the part of a body conducting proceedings does not constitute a prerequisite for compensation for non-pecuniary damage if the person was tortured or treated inhumanly or degradingly in violation of procedural law.",
"...”",
"Section 21. Lodging of claim after county court proceedings",
"“...",
"(4) If a person has failed, with good reason, to lodge a claim for compensation with a circuit court or if the existence of the basis for the claim for compensation for damage became evident only in cassation proceedings and the person has failed, with good reason, to lodge a compensation claim with the Supreme Court, the claim may be lodged with a prosecutor’s office or a body conducting extra-judicial proceedings. The claim shall be lodged within six months of the entry into force of the decision of the circuit court or Supreme Court. The adjudication of the claim shall comply with the provisions under part 2 of Chapter 4 of this Act.”",
"Domestic case-lawCriminal proceedings",
"Criminal proceedings",
"Criminal proceedings",
"40. In its judgment of 20 March 2002 in case no. 3-1-1-25-02 the Supreme Court found that a failure to inform a suspect or witness of their right not to incriminate themselves or their next of kin constituted a material breach of criminal procedural law, resulting in the inadmissibility of the evidence so obtained. It was impermissible to consider that duty as a formality by simply having a person sign or read the list of the relevant articles of the Code of Criminal Procedure. The investigator had to orally disclose and explain the relevant provisions to the witness.",
"41. On 18 April 2005, in case no. 3-1-1-19-05, the Supreme Court considered that in assessing the effect of a breach of a procedural rule on the admissibility of the evidence, it was necessary to have regard to the purpose of the rule and whether the evidence could have been obtained without breaching it.",
"42. In a judgment of 2 May 2007 in case no. 3-1-1-6-07, the Supreme Court held that not every violation of procedural law in the process of collecting evidence necessarily meant that the evidence was inadmissible. However, it was inexcusable for an investigator to knowingly violate procedural law by considering that a particular breach was not significant. Isolated violations may amount to a material breach of procedural law if the investigator committed them intentionally.",
"43. On 6 October 2007 in case no 1-15-10967, the Supreme Court held that where a conviction was based on a single piece of evidence, such as testimony given by the victim, it was particularly important for the court to examine comprehensively and impartially all possible doubts that may have arisen in the assessment of that sole piece of incriminating evidence and to dispel those doubts convincingly and in a manner comprehensible to the reader.",
"44. In case no. 3-1-1-72-07, dated 20 November 2007, the Supreme Court emphasised that only lawfully collected evidence could serve as a basis for punishing a person in criminal proceedings. Statements given by witnesses who had not been properly advised of their rights and duties could not constitute lawful evidence, as they had been obtained in material breach of procedural law.",
"Compensation for damage",
"45. On 13 June 2016 in case no. 3-1-1-34-16, the Supreme Court examined a compensation claim in respect of damage caused to the claimant by unlawful surveillance activities in the framework of criminal proceedings. It considered that since the surveillance activities in question had already been declared unlawful by a judgment of the criminal court, the damage caused fell within the scope of section 7(1) of the Act on Compensation for Damage Caused in Criminal Proceedings. The Supreme Court reiterated that it was only in exceptional circumstances, where a person had not had the opportunity to ask for the lawfulness of procedural measures to be assessed in the so-called main proceedings, that a court adjudicating on the compensation claim was competent to assess the lawfulness of actions taken or orders given in criminal proceedings.",
"46. By a judgment of 22 December 2017 in case no. 1-16-2675 the Supreme Court awarded compensation to a convicted person in respect of non-pecuniary damage caused by unlawful court decisions relating to his pre-trial detention.",
"EUROPEAN UNION LAW",
"47. The relevant part of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows:",
"Article 20",
"Protection of child victims in criminal investigations and proceedings",
"“...",
"3. Without prejudice to the rights of the defence, Member States shall take the necessary measures to ensure that in criminal investigations relating to any of the offences referred to in Articles 3 to 7:",
"(a) interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities;",
"(b) interviews with the child victim take place, where necessary, in premises designed or adapted for this purpose;",
"(c) interviews with the child victim are carried out by or through professionals trained for this purpose;",
"(d) the same persons, if possible and where appropriate, conduct all interviews with the child victim;",
"(e) the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings;",
"(f) the child victim may be accompanied by his or her legal representative or, where appropriate, by an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.",
"4. Member States shall take the necessary measures to ensure that in criminal investigations of any of the offences referred to in Articles 3 to 7 all interviews with the child victim or, where appropriate, with a child witness, may be audio-visually recorded and that such audio-visually recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law.”",
"48. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishes minimum standards on the rights, support and protection of victims of crime. The relevant part of the Directive reads as follows:",
"Article 20",
"Right to protection of victims during criminal investigations",
"“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:",
"(a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;",
"(b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;",
"(c) victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary;",
"(d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.”",
"Article 22 Individual assessment of victims to identify specific protection needs",
"“...",
"4. For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.”",
"Article 23 Right to protection of victims with specific protection needs during criminal proceedings",
"“1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.",
"2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1):",
"(a) interviews with the victim being carried out in premises designed or adapted for that purpose;",
"(b) interviews with the victim being carried out by or through professionals trained for that purpose;",
"(c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice;",
"(d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.”",
"Article 24 Right to protection of child victims during criminal proceedings",
"“1. In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child:",
"(a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;",
"(b) in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family;",
"(c) where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility.",
"The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.”",
"INTERNATIONAL MATERIALUnited Nations Convention on the Rights of the Child",
"United Nations Convention on the Rights of the Child",
"United Nations Convention on the Rights of the Child",
"49. The relevant provisions of the Convention, which came into force in respect of Estonia on 20 November 1991, read as follows:",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"...",
"Article 19",
"1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.",
"2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.",
"...",
"Article 34",
"States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:",
"(a) The inducement or coercion of a child to engage in any unlawful sexual activity;",
"...”",
"Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”)",
"50. The Convention was adopted in Lanzarote on 25 October 2007 and entered into force on 1 July 2010. It was ratified by Estonia on 22 November 2016 and came into force on 1 March 2017. Its relevant parts provide as follows:",
"Article 4 – Principles",
"“Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children.”",
"Chapter VI – Substantive criminal lawArticle 18 – Sexual abuse",
"“1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:",
"a. engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;",
"b. engaging in sexual activities with a child where:",
"– use is made of coercion, force or threats; or",
"– abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or",
"– abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.”",
"Chapter VII – Investigation, prosecution and procedural lawArticle 30 – Principles",
"“1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.",
"2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.",
"3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.",
"4 Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”",
"Article 31 – General measures of protection",
"“1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:",
"a. informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases;",
"...",
"c. enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered;",
"...”",
"Article 34 – Investigations",
"“1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.",
"...”",
"Article 35 – Interviews with the child",
"“1. Each Party shall take the necessary legislative or other measures to ensure that:",
"a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;",
"b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;",
"c. interviews with the child are carried out by professionals trained for this purpose;",
"d. the same persons, if possible and where appropriate, conduct all interviews with the child;",
"e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;",
"f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.",
"2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law.",
"...”",
"51. The relevant part of the Explanatory Report to the Lanzarote Convention reads as follows:",
"Article 30 – Principles",
"“211. Existing international legal instruments on the protection of children give only an indication of the need for a special judicial procedure adapted to the child victim. Recommendation Rec (2001) 16, which is certainly the most detailed such instrument, recalls in particular the need to safeguard child victims’ rights without violating the rights of suspects, the need to respect child victims’ private life and to provide special conditions for hearings with children. ...",
"212. Beyond these objectives, the definition and implementation of rules of procedure adapted to child victims are left to the discretion and initiative of each State. Recent analyses, including REACT, highlight the differences and discrepancies in the area.",
"213. The negotiators considered that a number of provisions should be made to implement a child-friendly and protective procedure for child victims in criminal proceedings. However, paragraph 4 underlines that these measures should not violate the rights of the defence and the principles of a fair trial as set out in Article 6 ECHR.",
"214. The central issue has to do with the child’s testimony which constitutes a major challenge in the procedures of numerous States, as witnessed by a number of cases that have received intensive media coverage and the changes that criminal procedure systems have undergone in the last decades. In this context, it has become urgently important for States to adopt procedural rules guaranteeing and safeguarding children’s testimony.",
"215. This is why paragraphs 1 and 2 establish two general principles to the effect that investigations and judicial proceedings concerning acts of sexual exploitation and sexual abuse of children must always be conducted in a manner which protects the best interests and rights of children, and must aim to avoid exacerbating the trauma which they have already suffered.",
"...”",
"Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice",
"52. The Guidelines on child-friendly justice were adopted by the Council of Europe Committee of Ministers on 17 November 2010. They include the following provisions:",
"Evidence/statements by children",
"“64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have.",
"65. Audiovisual statements from children who are victims or witnesses should be encouraged, while respecting the right of other parties to contest the content of such statements.",
"66. When more than one interview is necessary, they should preferably be carried out by the same person, in order to ensure coherence of approach in the best interests of the child.",
"67. The number of interviews should be as limited as possible and their length should be adapted to the child’s age and attention span.",
"68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim.",
"69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.",
"70. The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence.",
"71. Interview protocols that take into account different stages of the child’s development should be designed and implemented to underpin the validity of children’s evidence. These should avoid leading questions and thereby enhance reliability.",
"72. With regard to the best interests and well-being of children, it should be possible for a judge to allow a child not to testify.",
"73. A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.”",
"53. The relevant part of the Explanatory Memorandum to the above guidelines reads as follows:",
"“126. The issue of collecting evidence/statements from children is far from being simple. As standards are rare in this area (such as the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime), the need was felt to address these issues, as the conduct of such interviews with regard to evidence/statements requires practical guidance.",
"...",
"129. Member states’ procedural laws and legislation in this domain vary considerably, and there might be less strict rules on giving evidence by the children. In any case, member states should give priority to the child’s best interests in the application of legislation regarding evidence. Examples provided by Guideline 70 include the absence of the requirement for the child to take an oath or other similar declarations. These guidelines do not intend to affect the guarantees of the right to a defence in the different legal systems; however, they do invite member states to adapt, where necessary, some elements of the rules on evidence so as to avoid additional trauma for children. In the end, it will always be the judge who will consider the seriousness and validity of any given testimony or evidence.",
"130. Guideline 70 also indicates that these adaptations for children should not in themselves diminish the value of a given testimony. However, preparing a child witness to testify should be avoided because of the risk of influencing the child too much. Establishing model interview protocols (Guideline 71) should not necessarily be the task of the judges, but more that of national judicial authorities .”",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION",
"54. The applicant complained that the authorities had failed to conduct an effective criminal investigation into her allegations of sexual abuse by her father. In particular, the authorities had failed to collect the evidence in compliance with the procedural rules, which had led to its exclusion at trial and the acquittal of the alleged perpetrator. By leaving her without effective legal protection against sexual abuse, the State had breached its positive obligations under Articles 3 and 8 of the Convention. The relevant parts of those provisions read as follows:",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Article 8 § 1",
"“Everyone has the right to respect for his private and family life ...”",
"AdmissibilityAbuse of the right of application",
"Abuse of the right of application",
"Abuse of the right of application",
"55. The Government invited the Court to reject the application as being an abuse of the right of application. They argued that the applicant had failed to inform the Court in a timely manner about the developments in the civil proceedings, notably the decision of the Court of Appeal of 26 June 2017 (see paragraph 33 above). Although that decision had been rendered after the lodging of the application on 19 April 2016, it had been the applicant’s duty to submit it to the Court immediately, rather than in her reply to the Government’s observations following notification of the application. The decision of the Court of Appeal of 26 June 2017 constituted relevant new information demonstrating that the applicant’s grievances had been remedied and that she had lost her victim status.",
"56. The Court reiterates that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810, § 28, ECHR 2014, with further references).",
"57. In the present case, the Court notes that the applicant’s complaint before it concerns specifically the criminal proceedings relating to her alleged ill-treatment which, at the time the application was lodged, had ended with a final judgment of the Supreme Court. The ongoing civil proceedings were not the subject matter of the application and pursued a different objective – that of solving a custody and contact dispute between the applicant’s parents. Even so, the applicant did inform the Court of the civil court judgment in question, allowing the Government to make further submissions on that basis. Given the nature of the applicant’s complaint, the impugned delay in submitting the information cannot be seen as an attempt on the part of the applicant to conceal from the Court any essential information that would be relevant for its decision.",
"58. The Court therefore rejects the Government’s objection that there has been an abuse of the right of application.",
"Victim status",
"59. The Government submitted that the applicant had lost her victim status by having obtained a ruling in her favour in the subsequent civil proceedings concerning custody and contact rights. They pointed out that in its ruling of 26 June 2017 the Court of Appeal, having conducted an assessment of all the evidence independently of the criminal courts, found it established that the applicant had been sexually abused by her father and barred any contact with her until she reached the age of eighteen.",
"60. The applicant argued that the civil proceedings had not been sufficient in the circumstances of her case, which required effective prosecution of the perpetrator and condemnation by the State.",
"61. The Court reiterates that effective protection against rape and sexual abuse of children, where fundamental values and essential aspects of private life are at stake, requires measures of a criminal-law nature (see Söderman v. Sweden [GC], no. 5786/08, § 82, ECHR 2013). The protection afforded by civil proceedings is insufficient (see A and B v. Croatia, no. 7144/15, § 92, 20 June 2019). In the present case, the applicant’s allegations were serious enough to warrant a criminal investigation, the effectiveness of which is the object of her complaint before this Court. The fact that the alleged sexual abuse was examined also by the civil courts in the context of the custody and contact proceedings does not detract from the State’s positive obligation to apply criminal-law provisions through the conduct of an effective investigation. It follows that the Government’s objection formulated as the lack of victim status must be rejected (see also A, B and C v. Latvia, no. 30808/11, §§ 163-64, 31 March 2016).",
"Non-exhaustion of domestic remedies",
"62. The Government argued that the applicant had failed to exhaust all available domestic remedies. In particular, it had been open to her to lodge a claim for damages against the State under the Act on Compensation for Damage Caused in Criminal Proceedings (see paragraph 39 above). Under sections 7 and 11(2), a person who had suffered damage as a result of a breach of procedural law was entitled to compensation for non-pecuniary damage sustained in certain situations, including when the person had been tortured or subjected to inhuman or degrading treatment or when respect for his or her private life had been infringed. The Government cited cases where the domestic courts had awarded compensation in connection with unlawful surveillance activities and unlawful pre-trial detention (see paragraphs 45-46 above). Although there had been no cases where a breach of criminal procedure was alleged to have contravened the State’s positive obligations under Articles 3 and 8 of the Convention, the case-law was still developing and the national courts were required to take into account the Convention principles. Furthermore, if the applicant considered that the legislation was too restrictive or contained lacunae, she could base her compensation claim directly on Article 25 of the Constitution (see paragraph 35 above). In conclusion, the Government considered that the applicant should have given the authorities the opportunity to assess the alleged violation of her Convention rights by lodging a compensation claim.",
"63. The applicant contended that following the Supreme Court’s final decision in the criminal case, she had had no further avenues of redress available to her.",
"64. The Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 85-86, 9 July 2015, and the references therein).",
"65. Turning to the present case, the Court notes that the criminal proceedings concerning the alleged sexual abuse of the applicant concluded with the final judgment of the Supreme Court. The applicant thus made full use of the criminal-law avenue available to her before turning to the Court. It observes that the civil remedy relied on by the Government could only lead to the payment of damages by the State rather than to the identification and punishment, if appropriate, of the offender, which could only be achieved within the framework of criminal proceedings. According to the Court’s established case-law, a compensatory remedy cannot be regarded as adequate for the fulfilment of a State’s obligations under Articles 3 and 8 of the Convention to provide effective protection against serious attacks on the physical integrity of a person in cases such as the present one (see, for example, Remetin v. Croatia, no. 29525/10, § 76, 11 December 2012, and Pulfer v. Albania, no. 31959/13, § 71, 20 November 2018). The Court therefore finds that following the conclusion of the criminal proceedings, which was the appropriate channel of redress for the applicant’s allegations of sexual abuse, she was not required to resort further to the compensatory remedy advanced by the Government, as it was in any event incapable of providing direct and adequate redress for her complaint.",
"66. In the light of the above considerations, the Government’s objection must be rejected.",
"Conclusion",
"67. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicant",
"68. The applicant submitted that the criminal investigation into her allegations of ill-treatment had not been effective, as the authorities had failed to collect the evidence in compliance with the procedural rules, making its use impossible at the trial. That omission had had a direct effect on the outcome of the criminal proceedings, leading to the acquittal of the alleged perpetrator.",
"69. The applicant further argued that as a minor, she could not be subjected to the same procedural rules as an adult witness. However, as recognised by the Supreme Court, there were no separate rules in Estonia for the pre-trial questioning of child witnesses when it came to advising them of their rights and obligations. It was nevertheless essential to treat child witnesses differently from adult witnesses, in the light of the duty of the States to take into account the child’s best interests as set out in, inter alia, the UN Convention on the Rights of the Child, the Lanzarote Convention and the relevant EU directives (see paragraphs 47-50 above).",
"70. The applicant questioned the relevance of explaining both the duty to tell the truth and the possibility to refuse to testify against her father, given her young age and limited understanding. Even if the explanation had been given, it was doubtful whether it would have had any effect on the content and quality of her testimony. She also pointed out that under Estonian law minors under the age of ten were deemed to be incapable of comprehension when it came to sexual offences. Furthermore, it was argued that the right to refuse to give statements against a family member, which was designed to protect family relationships, should have no application in the present case where a parent is alleged to have committed sexual abuse against his child. In any case, the failure to provide her with the above information should not have served as grounds to exclude her testimony completely.",
"71. In sum, the applicant considered that by applying the procedural rules in a manner which did not sufficiently take into account the special needs and interests of a child victim, the authorities had left her without effective protection against ill-treatment.",
"(b) The Government",
"72. The Government were of the view that the State authorities had complied with their positive obligations under Articles 3 and 8 of the Convention. The alleged acts of sexual abuse were punishable under criminal law and there was no issue with regard to its application in practice. The pre-trial investigation and the subsequent court proceedings had also complied with the requirements of the Convention, giving due consideration to the rights of the victim and those of the accused, ensuring a fair trial overall.",
"73. In particular, the criminal proceedings had been instituted immediately after the filing of a crime report on 19 March 2012. The investigators had collected all the evidence that could be collected, including interviewing the applicant in the presence of a psychologist and her mother, and commissioning an expert assessment of her psychological state and a physical examination. The investigation had concluded with the bringing of charges on 27 June 2013, following which the case had been considered at three levels of jurisdiction, culminating in the Supreme Court decision on 23 October 2015. The total length of the proceedings, amounting to about three years and seven months, could not be considered unreasonable. The applicant had participated in the proceedings with the assistance of her legal representative and counsel, both of whom had attended the court hearings in her absence. At no point during the proceedings had those representatives expressed any criticism of the conduct of the investigation.",
"74. As regards the shortcomings identified by the Supreme Court leading to the exclusion of the applicant’s testimony, the Government submitted that the obligation to tell the truth was one of the most important duties of a witness under the Code of Criminal Procedure, which applied regardless of a witness’s age. A failure to inform a witness of that obligation, however, did not automatically result in the exclusion of his or her testimony. Such exclusion was possible in the circumstances of a case, particularly where the testimony was the only evidence supporting an accused’s conviction. In the present case, compliance with the requirement to inform the applicant of that duty had assumed special importance, since her testimony had carried decisive weight in the criminal case and she could not be directly questioned by the defence at the trial. Equally important had been the duty to inform the witness about her right not to testify against her next of kin, a duty which had moreover been specifically set out in the guidelines of the Prosecutor General on the special treatment of minors in criminal proceedings. The applicant should have been made aware of that right so that she could understand the consequences of testifying against her father.",
"75. The Government pointed out that the rules of international instruments dealing with the protection of the rights of children in criminal proceedings also emphasised the obligation to ensure the rights of the defence and the requirements of a fair trial. As the procedural obligations laid down in domestic law were not contrary to the Convention or any other international or European regulation, it had fallen within the domestic courts’ margin of appreciation to decide what weight to attribute to the investigators’ omission, having regard to the rights of the accused.",
"76. In the circumstances of the present case, the strict approach adopted by the Supreme Court to the admissibility of the evidence obtained in material breach of the procedural rules had been justified.",
"77. In the Government’s submission, the breach of the important procedural requirements had not rendered the criminal investigation ineffective. The shortcomings had concerned isolated omissions in the investigation, rather than any significant flaws or systemic defects in the legislation or practice. The effect of the investigators’ failure to advise the applicant of her rights and duties on the admissibility of her testimony had not been immediately apparent, as that failure had become an issue in the context of assessing the credibility of the testimony. Moreover, in acquitting the alleged perpetrator, the Supreme Court had pointed also to other shortcomings in the proceedings before the lower-instance courts, criticising notably their approach to the evidence. Considering that there was no right under the Convention to obtain a criminal conviction and that the assessment of the evidence fell primarily within the competence of the domestic courts, the Government concluded that in the present case there had been no violation of Articles 3 and 8 of the Convention.",
"The Court’s assessment",
"(a) General principles",
"78. The Court reiterates that both Articles 3 and 8 of the Convention entail an obligation on the State to safeguard the physical and psychological integrity of a person (see, among other authorities, M. and C. v. Romania, no. 29032/04, §§ 107-11, 27 September 2011, and M.P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011). It has previously held that the authorities’ positive obligations in this context may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Söderman, cited above, § 80, with further references). Children and other vulnerable individuals, in particular, are entitled to effective protection (see M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII).",
"79. Regarding, more specifically, serious acts such as rape and other forms of sexual abuse of children, where fundamental values and essential aspects of private life are at stake, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see X and Others v. Bulgaria [GC], no. 22457/16, 2 February 2021). In such cases the State’s positive obligations also include requirements related to the effectiveness of the criminal investigation (see Söderman, cited above, §§ 82-83, with further references).",
"80. The Court has held that an effective investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and, if appropriate, punishment of those responsible. This is not an obligation of result, but one of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence (see Z. v. Bulgaria, no. 39257/17, § 65, 28 May 2020).",
"81. Moreover, in so far as the investigation leads to charges being brought before the national courts, the procedural obligations in relation to the alleged ill-treatment extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of the prohibition of ill-treatment ( ibid., § 66 ). The Court has already held that, regardless of the final outcome of the proceedings, the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see W. v. Slovenia, no. 24125/06, § 65, 23 January 2014).",
"82. However, there is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see Söderman, cited above, § 83).",
"83. The Court reiterates that the obligations incurred by the State under Articles 3 and 8 of the Convention in cases of alleged sexual abuse of children require respect for the best interests of the child. The right to human dignity and psychological integrity requires particular attention where a child is the victim of violence (see M.M.B. v. Slovakia, no. 6318/17, § 61, 26 November 2019, and C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012). The Court has also emphasised that it was incumbent on the States to adopt procedural rules guaranteeing and safeguarding children’s testimony (see G.U. v. Turkey, no. 16143/10, § 73, 18 October 2016).",
"84. In view of the above, States are required under Articles 3 and 8 to enact provisions criminalising the sexual abuse of children and to apply them in practice through effective investigation and prosecution, bearing in mind the particular vulnerability of children, their dignity and their rights as children and as victims (see Z v. Bulgaria, § 70, and A and B v. Croatia, § 112, both cited above). These obligations also stem from other international instruments, such as, inter alia, the UN Convention on the Rights of the Child and the Lanzarote Convention (see paragraphs 49-50 above). In interpreting the State’s obligations mentioned above, the Court will have regard to the relevant rules and principles of international law, as well as to non-binding instruments of Council of Europe organs (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 69 and 74, ECHR 2008, and X and Others v. Bulgaria, cited above, §§ 179 and 192).",
"(b) Application of these principles to the present case",
"85. There is no doubt in the present case that the alleged sexual abuse of the applicant falls within the scope of Articles 3 and 8 of the Convention, triggering the State’s positive obligations to enact criminal-law provisions punishing effectively the sexual abuse of children and to apply them in practice through effective investigation and prosecution.",
"86. Nor is it disputed that the criminal law prohibited the sexual abuse alleged by the applicant and provided for criminal prosecution of those responsible. Indeed, the applicant’s allegations gave rise to the opening of a criminal investigation under the relevant provisions of the Criminal Code and the prosecution and trial of the alleged offender.",
"87. The Court must thus examine whether the application of the criminal-law provisions in practice, through the criminal investigation and prosecution, was defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention. It considers that the criminal-law mechanisms should be implemented so as to address the particular vulnerability of the applicant as a young child who had allegedly been a victim of sexual abuse by her father, taking as a primary consideration the child’s best interests, and in this connection so as to afford protection to her rights as a victim (see A and B v. Croatia, cited above, § 121).",
"88. In addressing the question, the Court will take into account the criteria laid down in international instruments. In particular, it notes that the Lanzarote Convention, the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice and the relevant EU directives lay down a number of requirements relating to the collection and preservation of evidence from children (see paragraphs 47, 48, 50 and 52 above). Although the Lanzarote Convention entered into force in respect of Estonia subsequent to the facts of the present case, the other relevant instruments contain provisions similar to those of that Convention.",
"89. The Court is not concerned with allegations of errors or isolated omissions but only significant shortcomings in the proceedings and the relevant decision-making process, namely those that are capable of undermining the authorities’ capability of establishing the circumstances of the case or the person responsible (see S.M. v. Croatia [GC], no. 60561/14, § 320, 25 June 2020). It cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrator’s criminal responsibility (see X and Others v. Bulgaria, cited above, § 186).",
"90. In the present case, the applicant’s complaint concerns procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of the alleged perpetrator on procedural grounds.",
"91. The Court notes that following receipt of the allegations of sexual abuse on 19 March 2012, the authorities immediately instituted criminal proceedings. The applicant was interviewed on the same day as a victim. A further interview took place on 16 May 2012. The interviews were carried out by a specialist investigator of the same sex in the presence of a psychologist. The applicant was accompanied by her mother as her legal representative. The interviews were video recorded in order to safeguard the applicant’s testimony for its possible use in subsequent court proceedings and to ensure respect for the rights of the accused, who would not be allowed to confront her directly.",
"92. However, in neither of these interviews was the applicant advised by the investigator of her right not to testify against a member of her family and of her duty to tell the truth, such instructions being required by the rules of criminal procedure.",
"93. The investigative authorities twice questioned the alleged perpetrator, who denied any sexual abuse of his daughter, and had a psychiatric assessment of him performed. He and his counsel were presented with the video-recorded statements of the applicant and given an opportunity, which they did not use, to put questions to her in writing.",
"94. The evidence collected during the investigation was considered sufficient to charge the applicant’s father with acts of sexual abuse in June 2013 and to send the case for trial.",
"95 Given her young age, the applicant was not called to testify in court, as had been suggested by experts. The applicant’s video-recorded statements given at the pre-trial stage were disclosed at the hearings and viewed by both the first-instance and appellate courts. The defence was also able to observe the witness’s demeanour under questioning and cast doubt on the reliability of her statements, arguing, inter alia, that they had been unduly influenced by her mother, who had been present during the interviews.",
"96. Based on the evidence gathered, including the testimony of experts and other witnesses, the first-instance court found the applicant’s allegations of sexual abuse proven and convicted her father as charged. Although the Court of Appeal upheld the judgment, its decision was not unanimous. The dissenting judge questioned the reliability of the victim’s testimony on which the conviction had been based and found that the testimony had been obtained in breach of procedural requirements to inform the witness of the duty to tell the truth and of the right not to testify against her next of kin.",
"97. Subsequently, in examining an appeal by the accused contesting his conviction, the Supreme Court considered that the failure to advise the applicant before her interviews of her obligation to tell the truth and her right to refuse to testify against her father was of such importance as to render inadmissible her testimony, which was decisive evidence in the case. As the omission at issue could not be remedied by remitting the case to the lower-instance courts where the child victim could not be heard, the exclusion of the main evidence resulted in the acquittal of the accused.",
"98. The Court notes that in Estonia the general rules set out in the law for questioning witnesses are also applicable to child witnesses (see paragraph 24 above). Nevertheless, in practice it has been recognised that when questioning child witnesses and advising them of their rights and duties, account must be taken of their age and level of understanding (see paragraphs 22 and 38 above).",
"99. In this connection, the Court observes that under the relevant international instruments, investigations and criminal proceedings should be carried out in a manner which protects the best interests and rights of children, such protection requiring the adoption of child-friendly and protective measures for child victims in criminal proceedings (see, for example, Article 30 of the Lanzarote Convention and the Explanatory Report thereto, paragraphs 50-51 above). In this context, it is important that the States have in place procedural rules guaranteeing and safeguarding children’s testimony (see G.U. v. Turkey, cited above, § 73).",
"100. In the present case, it is undisputed that the investigator did not give in any form or manner the required instructions to the applicant when interviewing her as a child witness following the institution of the criminal proceedings. The Court notes that the whole criminal case rested essentially on the credibility of the applicant’s testimony. However, the Supreme Court excluded that testimony entirely from the body of evidence on procedural grounds relating to the investigator’s failure to provide the required warnings. Although it also pointed to other procedural shortcomings, notably in the judgments of the lower-instance courts, the identified failure of the investigative bodies was sufficient, in itself, to acquit the accused. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Selahattin Demirtaş v. Turkey (no. 2) v. Turkey [GC], no. 14305/17, § 249, 22 December 2020).",
"101. In the instant case, the failure to give the applicant, a 4-year old child, the warnings generally required by law for any witness statement, and the consequences flowing from that failure as determined by the Supreme Court, resulted in the applicant’s testimony becoming unusable for the determination of the criminal charge against the accused. Since the latter’s conviction was to a decisive extent based on the testimony of the applicant and since there was no way of remedying the failure associated with it, the accused had to be acquitted. Aside from the question whether such warnings could be considered appropriate at all in a case such as the present, the Supreme Court’s decision, combined with the investigator’s omission, undermined the effective prosecution of the alleged offences. This is because, having regard to the impossibility to re-examine the case in the lower-instance courts, it was ultimately incapable of establishing the facts of the case and determining the question of culpability of the alleged offender on the merits",
"102. The Court considers that for the effective protection of children’s rights in line with international standards, it is essential to safeguard their testimony both during the pre-trial investigation and trial. Estonian law, as regards the warnings to be given to witnesses, does not make a distinction between witnesses according to their age, and thus does not provide for exceptions or adaptions for child witnesses. The Court notes in this connection that, according to the Council of Europe Committee of Ministers’ Guidelines on child-friendly justice, where less strict rules on giving evidence or other child-friendly measures apply, such measures should not in themselves diminish the value given to a child’s testimony or evidence, without prejudice to the rights of the defence (see paragraphs 52 and 53 above). However, in the present case the applicant’s testimony was found to be inadmissible precisely because of the strict application of procedural rules which made no distinction between adults and children. The Court reiterates that it is not concerned with the responsibility of any particular national authority, since what is at issue in all cases before it is the international responsibility of the State (see, among other authorities, Tarariyeva v. Russia, no. 4353/03, § 85, ECHR 2006 ‑ XV (extracts).",
"103. In view of the above, the Court finds that there were significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which did not sufficiently take into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, the Court, without expressing an opinion on the guilt of the accused, concludes that the manner in which the criminal-law mechanisms as a whole were implemented in the present case, resulting in the disposal of the case on procedural grounds, was defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 and 8 of the Convention.",
"104. There has therefore been a violation of Articles 3 and 8 of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"105. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"106. The applicant submitted that she had suffered non-pecuniary damage but left the determination of the amount of compensation to the Court. The Government considered that the finding of a violation would constitute sufficient just satisfaction.",
"107. The Court accepts that the applicant has suffered non-pecuniary damage as a result of the defective criminal proceedings which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 16,300 in respect of non-pecuniary damage.",
"Costs and expenses",
"108. The applicant also claimed EUR 7,140 for the costs and expenses incurred before the domestic courts.",
"109. The Government considered that the amount claimed was excessive.",
"110. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum claimed in full.",
"Default interest",
"111. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
13 | Vavřička and Others v. Czech Republic | 8 April 2021 (Grand Chamber) | This case concerned the Czech legislation on compulsory vaccination3 and its consequences for the applicants who refused to comply with it. The first applicant had been fined for failure to comply with the vaccination duty in relation to his two children. The other applicants had all been denied admission to nursery school for the same reason. The applicants all alleged, in particular, that the various consequences for them of non-compliance with the statutory duty of vaccination had been incompatible with their right to respect for their private life. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention in the present case, finding that the measures complained of by the applicants, assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State (to protect against diseases which could pose a serious risk to health) through the vaccination duty. The Court clarified that, ultimately, the issue to be determined was not whether a different, less prescriptive policy might have been adopted, as had been done in some other European States. Rather, it was whether, in striking the particular balance that they did, the Czech authorities had exceeded their wide margin of appreciation in this area. The Court concluded that the impugned measures could be regarded as being “necessary in a democratic society”. The Court noted, in particular, that in the Czech Republic the vaccination duty was strongly supported by the relevant medical authorities. It could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children. The judgment also emphasised that in all decisions concerning children, their best interests must be of paramount importance. With regard to immunisation, the objective had to be that every child was protected against serious diseases, through vaccination or by virtue of herd immunity. The Czech health policy could therefore be said to be consistent with the best interests of the children who were its focus. The Court further noted that the vaccination duty concerned nine diseases against which vaccination was considered effective and safe by the scientific community, as was the tenth vaccination, which was given to children with particular health indications. | Children’s rights | Compulsory childhood vaccination | [
"Background",
"11. In the Czech Republic, section 46(1) and (4) of the Public Health Protection Act ( Zákon o ochraně veřejného zdraví ) (Law no. 258/2000 Coll., as amended – “the PHP Act”) requires all permanent residents and all foreigners authorised to reside in the country on a long-term basis to undergo a set of routine vaccinations in accordance with the detailed conditions set out in secondary legislation. For children under the age of fifteen, it is their statutory representatives ( zákonný zástupce ) who are responsible for compliance with this duty.",
"12. In the Czech constitutional order duties may be imposed only on the basis and within the bounds of the law ( zákon ) and limitations on fundamental rights and freedoms may likewise only be imposed by the law, this term commonly being understood as an Act of Parliament.",
"13. The PHP Act is an Act of Parliament. Sections 46(6) and 80(1) provide for the adoption by the Ministry of Health (“the Ministry”) of implementing legislation in relation to vaccination.",
"14. The Ministry issued the above-mentioned implementing measures in the form of the Decree on Vaccination against Infectious Diseases ( Vyhláška o očkování proti infekčním nemocem ) (Decree no. 439/2000 Coll., as amended – “the 2000 Ministerial Decree”, in force from l January 2001 to 31 December 2006, and Decree no. 537/2006 Coll., as amended, – “the 2006 Ministerial Decree”, in force as from 1 January 2007, jointly referred to hereafter as “the Ministerial Decree”).",
"15. Section 50 of the PHP Act provides that preschool facilities such as those concerned in the present case may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination on health grounds. A similar provision appears in section 34(5) of the Education Act ( Zákon o předškolním, základním, středním, vyšším odborném a jiném vzdělávání (školský zákon) ) (Law no. 561/2004 Coll., as amended).",
"16. The cost of vaccination is covered by public health insurance. The vaccines included in the list of specific vaccine variants for regular immunisation, which is published annually by the Ministry, are free of charge. Other vaccines can be used instead so long as they have been approved by the competent authority, but the cost is not covered by the State.",
"17. Under section 29(1)(f) and (2) of the Minor Offences Act ( Zákon o přestupcích ) (Law no. 200/1990 Coll., as applicable at the relevant time – “the MO Act”), a person who violates a prohibition or fails to comply with a duty provided for or imposed in order to prevent infectious diseases commits a minor offence punishable by a fine of up to 10,000 Czech korunas (CZK) (currently equivalent to nearly 400 euros (EUR)).",
"18. In the event of malpractice in administering a compulsory vaccination resulting in damage to the health of an individual who has been vaccinated, the person responsible may be held liable under the general law of tort to pay compensation in respect of the damage caused.",
"19. As regards damage to health resulting from a compulsory vaccine administered in compliance with the applicable rules and procedures ( lege artis ), until 31 December 2013 compensation could be claimed from the health professional who had performed the vaccination, on the basis of strict liability with no exonerating grounds under Article 421a of the then applicable Civil Code (Law no. 40/1964 Coll., as amended). In the context of a recodification of the civil law, this form of action was abolished with effect from 1 January 2014. However, under new special legislation that took effect on 8 April 2020, the State may be held liable for such damage.",
"20. Aside from the issue of compensation in such circumstances, a person suffering from any side-effects of the vaccines in question will be eligible for medical treatment, covered by public health insurance.",
"21. For further information on the relevant domestic law and practice, see paragraphs 65 to 93 below.",
"application of Mr Vavřička, no. 47621/13",
"22. The applicant was born in 1965 and lives in Kutná Hora.",
"23. On 18 December 2003 the competent Disease Prevention and Control Centre ( hygienická stanice ) found him guilty of an offence under section 29(1)(f) of the MO Act for failure to comply with an order to bring his two children, then aged fourteen and thirteen, to a specified health-care establishment with a view to having them vaccinated against poliomyelitis, hepatitis B and tetanus. He was fined CZK 3,000 and ordered to pay CZK 500 in respect of costs (i.e. the equivalent of some EUR 110 in total at the relevant time).",
"24. The applicant challenged the decision at the administrative level, before the courts and ultimately before the Constitutional Court. He argued that the regulations in question were contrary to his fundamental rights and freedoms, in particular the right to refuse a medical intervention (referring to Articles 5 and 6 of the Convention on Human Rights and Biomedicine, which forms part of the legal order of the Czech Republic and takes precedence over statute in case of conflict (see paragraph 141 below) – the “Oviedo Convention”) and the right to hold and manifest his religious and philosophical beliefs. He opposed what he described as irresponsible experimentation with human health, emphasised the actual and potential side-effects of vaccines and argued that no risk to public health arose in his case, given that the last occurrence of poliomyelitis dated back to 1960, hepatitis B concerned only high-risk groups and tetanus was not transmissible among humans.",
"25. The applicant’s cassation appeal was first dismissed by the Supreme Administrative Court (“the SAC”) in a judgment of 28 February 2006. That judgment was however quashed by the Constitutional Court in a constitutional judgment ( nález ) of 3 February 2011.",
"26. The Constitutional Court found that the SAC had failed to provide an adequate response to the applicant’s claim that the impugned decision was contrary to his right to manifest freely religion or belief under Article 16 of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) (Constitutional Law no. 2/1993 Coll.). It observed that the vaccination duty as such (imposed on the applicant by the decision of 3 June 2003 implementing the 2000 Ministerial Decree) was not at stake in the case, since his constitutional appeal concerned the penalty for non-compliance with this duty, imposed on him under the MO Act by the decision of 18 December 2003. Accordingly, the Constitutional Court could not exercise its jurisdiction to review the constitutionality of the vaccination duty. In any event, it had no power to substitute the assessment by the legislature or the executive as to the infectious diseases against which compulsory vaccination was needed. That assessment was for the legislature to make having regard to Article 26 of the Oviedo Convention. It was of a political and expert nature and subject to a relatively wide margin of appreciation.",
"27. The Constitutional Court distinguished between making provision in law for compulsory vaccination and securing compliance with that duty. Compulsory vaccination amounted in principle to an admissible limitation on the fundamental right to manifest freely one’s religion or beliefs, since it was obviously a measure necessary in a democratic society for the protection of public safety, health and the rights and freedoms of others. However, for an interpretation of that limitation to be in conformity with the constitutional requirements, it could not entail unconditional enforcement of the vaccination duty in respect of any person, irrespective of the individual aspects of or motivations for that person’s resistance.",
"28. More specifically, the Constitutional Court held that:",
"“A public authority deciding on the enforcement of the vaccination duty or on the penalty for non-compliance with it must take into account the exceptional reasons advanced by the claimant for refusing to undergo vaccination. If there are such circumstances which call, in a fundamental manner, for that person’s autonomy to be preserved, while nevertheless maintaining an opposite public interest ..., and therefore for an exceptional waiver of the penalty for [non-compliance with] the vaccination duty, the public authority must not penalise or otherwise enforce the [said] duty. ...",
"The public authority, and then the administrative court in proceedings on an administrative-law action, must take into account all the relevant circumstances of the case in its decision-making, in particular the urgency of the reasons claimed by the person concerned, their constitutional relevance, and the risk to society that may be caused by the conduct of the person concerned. The consistency and credibility of the claims of the person concerned will also be an important aspect.",
"In a situation where a specific person does not communicate with the competent public authority from the outset, and only seeks to justify his or her attitude in respect of vaccination at later stages in the proceedings, as a general rule the conditions that the person’s attitude be consistent and that the constitutional interest in the protection of his or her autonomy be urgent would usually not be satisfied.”",
"29. The Constitutional Court further held that if these criteria were to be applied to the specific facts of the applicant’s case, the fulfilment of the criterion of consistency in his attitude appeared problematic. In that regard, it noted that he had given the reasons for his refusal to allow vaccination only at a late stage of the proceedings and that even at a hearing before the Constitutional Court, he had submitted that his reasons were primarily health-related as, in his view, vaccination was harmful to children, with any philosophical or religious aspects being secondary. However, the criteria were primarily for the SAC to apply, and the applicant’s case was remitted to it for re ‑ examination.",
"30. In a judgment of 30 September 2011, the SAC dismissed the applicant’s case.",
"In response to the Constitutional Court’s directions, the SAC established that it had not been until a late stage in the proceedings that the applicant had relied, without further explanation, on the protection of his religious and philosophical convictions. He had subsequently explained his belief that he had the right to refuse compulsory vaccination for himself and his children on account of such convictions. However, he had not advanced any concrete argument concerning his religion and the degree of the potential interference caused by vaccination. The interest in protecting public health thus outweighed the applicant’s right to manifest his religion or beliefs.",
"31. The final decision was given by the Constitutional Court on 24 January 2013, dismissing the applicant’s complaint against the judgment of 30 September 2011 as manifestly ill-founded.",
"application of ms Novotná, no. 3867/14",
"32. The applicant was born on 12 October 2002. She was granted admission to a Montessori nursery school by a decision of 4 April 2006, when she was some three and a half years old.",
"33. On 10 April 2008 the principal of the establishment decided to reopen the admission procedure, having been informed by the applicant’s paediatrician that – contrary to a previously submitted medical certificate of 15 March 2006 to the effect that she “had received the basic vaccination” – the applicant had not actually received the MMR (measles, mumps and rubella) vaccine. The reopened proceedings resulted in a decision of 14 July 2008 reversing, for lack of a required vaccination, the previous decision to admit the applicant to the establishment.",
"34. In her subsequent unsuccessful appeals at the administrative level and before the courts, as well as to the Constitutional Court, the applicant argued that an exception to the right protected under Article 5 of the Oviedo Convention (that any intervention in the health field be subject to free and informed consent) could not be provided for by secondary legislation, i.e. the 2006 Ministerial Decree. That Decree did not set an age limit for the MMR vaccination. With reference to “statistical information” and the “opinion of experts”, she contended that vaccination presented a risk to health and was not necessary in a democratic society. The decision of 14 July 2008 was contrary to her interests and her right to education. She was prevented from continuing in the Montessori educational system unless she submitted to a medical procedure to which she did not consent.",
"35. The applicant’s arguments were dismissed at all levels, the final decision being given by the Constitutional Court on 9 July 2013. Its conclusion can be summarised as follows.",
"36. To the extent that the applicant was challenging the legal basis for the vaccination duty, limitations to the guarantees under Articles 5 and 6 of the Oviedo Convention were provided for by an Act of Parliament (the PHP Act) setting out the duty to submit to routine vaccination, in respect of which only particular aspects such as the vaccine types and the conditions for administering them were set out in the 2006 Ministerial Decree adopted in application of that law. This arrangement satisfied the constitutional requirements that duties be imposed on the basis and within the bounds of the law (Article 4 § 1 of the Charter) and that limitations on fundamental rights and freedoms be imposed only by the law (Article 4 § 2 of the Charter). Any case-law inconsistencies in that regard had been resolved (see, in particular, paragraphs 85 et seq. below).",
"37. In so far as the applicant contested the need to protect public health by means of the vaccination at stake in her case, the objection was dismissed as unfounded. It was noted that she had raised no arguments whatsoever as regards any “circumstances which require in a fundamental manner that the individual’s autonomy be preserved” within the meaning of the Constitutional Court’s judgment in the Vavřička case (see paragraph 28 above).",
"38. In that regard, the Constitutional Court specifically pointed out that effective protection of those fundamental rights that were in conflict with the public interest in the protection of health could be ensured through a rigorous assessment of the individual circumstances of each case, rather than by calling into question the vaccination duty as such. In the applicant’s case, the courts had duly examined and responded to her objections. She had failed to show that on the facts of her case the duty to undergo the MMR vaccination amounted to a disproportionate interference with her fundamental rights. Nor had she established any circumstance that would have enabled her, in accordance with section 50 of the PHP Act, to be admitted to a nursery school without being vaccinated.",
"39. Leaving open the question whether attendance at a nursery school fell within the ambit of the right to education, the Constitutional Court nevertheless held that in a situation where the applicant’s continued attendance was likely to put at risk the health of others, the public’s subjective right to the protection of health took priority. Her non-admission to the nursery school was accordingly free from any error.",
"40. In addition, the applicant had prevented herself from being able to attend preschool by refusing to meet conditions which were identical for everyone, and had probably not acted in good faith when submitting an inaccurate medical certificate with her initial application for admission.",
"application of mr Hornych, no. 73094/14",
"41. The applicant was born on 26 September 2008. At a young age, he suffered from various ailments and did not receive any vaccinations. He claimed that his parents had never actually refused to have him vaccinated and that the failure to vaccinate him was due to the lack of an individualised vaccination recommendation from his paediatrician.",
"42. When applying for admission to nursery school, his paediatrician certified in the relevant form that the applicant had not been vaccinated. The form also contained the following handwritten text: “[the applicant] is not lacking any routine vaccination required under the law”. It was later established by the authorities, and not disputed by the applicant, that the handwritten text had been added by someone other than the paediatrician.",
"43. By a decision of 27 June 2011, the applicant was refused admission to the nursery school pursuant to section 50 of the PHP Act because he had failed to prove that he had been vaccinated. His administrative appeal was dismissed, the authority having established through telephone contact with the paediatrician that there had been no relevant change in the situation since the above-mentioned certificate had been issued.",
"44. The applicant further pursued his case through an administrative-law action and a cassation appeal, arguing principally that he had fulfilled all the statutory admission requirements, since – given that he had not received any individualised vaccination recommendations – he could not be regarded as missing any vaccination required by law. The authorities had failed to establish the opposite. It had been arbitrary and contrary to his right to protection of personal information for them to have obtained further information from his paediatrician by telephone. He had been deprived of the opportunity to comment. It was apparent that no minor offence had been committed in connection with his vaccination status, as no proceedings had been brought in that respect.",
"45. His appeals were dismissed, inter alia on the grounds that although the administrative appeal authority had obtained information from the paediatrician by an extraordinary channel, the applicant had had access to the case-file and the contested decision was based solely on facts of which he had been aware. Moreover, under section 50 of the PHP Act the relevant criterion for being admitted to nursery school was whether or not the vaccination duty had been complied with, and not the reasons for possible non-compliance. Finally, the applicant had not even argued that there were any “circumstances which require in a fundamental manner that the individual’s autonomy be preserved”, within the meaning of the Vavřička jurisprudence (see paragraph 28 above), nor had he relied on any of his fundamental rights.",
"46. In his ensuing constitutional appeal, the applicant alleged a violation of his rights under Articles 6 § 1 (fairness) and 8 (private and family life, in particular the right to personal development) of the Convention, essentially on the same grounds as before the lower courts. He argued that these courts had failed to assess the medical necessity of the vaccinations he had been required to undergo. In addition, “for the sake of completeness” he submitted specifically that since his parents had not refused to have him vaccinated, they could not be blamed for failing to justify their refusal on the grounds of their beliefs or convictions.",
"47. On 7 May 2014 the Constitutional Court rejected the appeal as manifestly ill-founded, noting that the courts had duly examined all the relevant elements and endorsing their conclusions.",
"applications of mr Brožík and mr Dubský, nos. 19298/15 and 19306/15",
"48. The applicants were born on 11 and 16 May 2011 respectively. Their parents refused to have them vaccinated. It was later noted by the authorities that in their application for admission to nursery school they had submitted a certificate issued by their paediatrician to the effect that they had not been vaccinated on account of their parents’ beliefs and convictions.",
"49. On 2 May 2014 they were refused admission to nursery school with reference to the Vavřička jurisprudence (see paragraph 28 above) and on the grounds that compulsory vaccination amounted to an acceptable restriction on the right to manifest one’s religion or beliefs freely, since it was necessary for the protection of public health and of the rights and freedoms of others.",
"50. The applicants challenged that decision through an administrative appeal and through an administrative-law action against the subsequent dismissal of that appeal.",
"51. Together with their administrative-law action, on 18 July 2014 the applicants requested the Hradec Králové Regional Court to adopt an interim measure authorising them to attend a given nursery school from 1 September 2014 pending the outcome of the proceedings on the merits of that action. They argued that they would otherwise be liable to serious harm, consisting in discrimination against them and a limitation of their personal development and access to preschool education. They asserted furthermore that their admission could not pose any risk to the other children who had been vaccinated, and that many adults were not, or were no longer, immunised against the illnesses in question.",
"52. On 13 August 2014 the Regional Court dismissed the request for an interim measure. It noted that there was no right, as such, of admission to preschool and that such admission was subject to conditions, including that set out in section 50 of the PHP Act. Non-admission was thus envisaged by law and was not a rare occurrence, especially on account of the lack of available places. Accordingly, the impugned decision could not have entailed a serious type of harm justifying the adoption of an interim measure.",
"53. Relying on Article 6 of the Convention, the applicants challenged this judgment by way of a constitutional appeal. At the same time, they requested the Constitutional Court itself to adopt an interim measure similar to that previously requested from the Regional Court.",
"54. On 23 October 2014 the Constitutional Court dismissed both the applicants’ constitutional appeal and their request for an interim measure as manifestly ill-founded. Emphasising that the proceedings on the merits were still ongoing at the relevant time, it considered that the dismissal of the requests for interim measures had not entailed constitutionally unacceptable consequences. Moreover, the applicants had not demonstrated that it was necessary to adopt interim measures, and the Regional Court’s reasoning in that respect was logical, understandable and relevant.",
"55. Once the Constitutional Court had resolved the matter of the interim measure, it remained to determine the merits of the applicants’ administrative-law action. This was dismissed in a judgment of the Regional Court of 10 May 2016. Although further appeals were available, the applicants did not pursue the matter any further.",
"application of mr Roleček, no. 43883/15",
"56. The applicant was born on 9 April 2008. His parents, who are biologists, decided to draw up an individual vaccination plan for him. As a result, he was vaccinated later than provided for by the applicable rules and was not vaccinated against tuberculosis, poliomyelitis or hepatitis B, and did not receive the MMR vaccine.",
"57. On 22 and 30 April 2010 the principals of two nursery schools refused him admission under section 50 of the PHP Act.",
"58. In his subsequent unsuccessful appeals at the administrative level and before the courts, including the Constitutional Court, the applicant argued, inter alia, that there had been a violation of his right to respect for private and family life, his right to education and his right not to be subjected to discrimination. No account had been taken of his parents’ convictions in pursuing his best interests, or of the principle of proportionality. Section 50 of the PHP Act should be set aside. The interference with his rights had been disproportionate, and less radical measures had been available to allow for the protection of public health. His non-admission had had repercussions for the entire family, in that his mother had been obliged to stay at home to look after him.",
"59. The applicant’s arguments were dismissed on grounds that can be summarised as follows, the key decisions being given by the Constitutional Court on 27 January 2015 (validity of section 50 of the PHP Act) and 25 March 2015 (merits of the applicant’s individual case).",
"60. Section 50 of the PHP Act did not breach in any way the rule that some matters were to be regulated solely by an Act of Parliament. It laid down a condition for being admitted to day-care or preschool facilities, with reference to section 46 of the PHP Act. The latter provision defined the scope and content of the underlying duty. To the extent that the applicant might be understood as wishing to challenge the vaccination duty as such, this was beyond the scope of his challenge to section 50 of the PHP Act and should have been raised separately. As this had not been done, the Constitutional Court was prevented from reviewing the vaccination duty in the present proceedings. Nevertheless, its constitutionality had already been examined and upheld in another judgment in an unrelated case, namely no. Pl. ÚS 19/14, concerning a different consequence (a fine) of a breach of the vaccination duty (see paragraphs 90 et seq. below).",
"61. Having an individual vaccination plan did not fall within any of the discrimination grounds provided for by law. Contrary to the applicant’s suggestion, non-admission to nursery school was not a penalty. As regards proportionality, the applicant had not referred to any exceptional circumstances to outweigh the interest of the protection of public health, within the meaning of the Vavřička case-law (see paragraph 28 above).",
"62. The detailed content of the right to education under Article 33 of the Charter was set out in the Education Act (see paragraphs 80 seq. below) and pertained to all types and levels of education. In the Constitutional Court’s view, this included preschool education, as this involved a process of acquiring skills, attitudes and knowledge, rather than just childcare or child ‑ minding. A limitation on that right, consisting in a requirement of compliance with the vaccination duty, did not suppress the very essence of the right and clearly pursued the legitimate aim of protecting public health. Moreover, the means provided for achieving this aim were rational and free from any arbitrariness. Vaccination represented an act of social solidarity on the part of those accepting a minimum risk in order to protect the health of society as a whole. This was all the more valid as the number of vaccinated children attending preschool establishments grew.",
"63. Lastly, with reference to the considerations mentioned in the preceding paragraph as well as in the other constitutional judgment mentioned above (case no. Pl. ÚS 19/14), the Constitutional Court found that the lower courts’ conclusions in the proceedings brought by the applicant had an adequate basis in findings of fact and were supported by cogent reasoning. There had accordingly been no breach of the applicant’s fundamental rights.",
"64. The judgment of 27 January 2015 concerning the validity of section 50 of the PHP Act was adopted by a majority. A dissenting judge attached a separate opinion, in which she considered, inter alia, that the scope of the vaccination duty extending to nine diseases as a requirement for admission to the preschool system was excessive and that the existing regulations infringed the applicant’s basic rights. In her view, linked as it was to the public debate on the possible harmful effects of vaccination, the judgment of the plenary formation had limited itself to general statements about solidarity."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"DOMESTIC LAW AND PRACTICEDomestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"Domestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"Domestic lawCharter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)",
"65. In so far as relevant, Article 4 provides:",
"“1. Duties may be imposed only on the basis and within the bounds of the law and only if the fundamental rights and freedoms of the individual are respected.",
"2. Limitations may be placed upon fundamental rights and freedoms only by the law and under the conditions prescribed in [this Charter].”",
"66. Pursuant to Article 7 § 1:",
"“The inviolability of the person and of his or her private life shall be guaranteed. It may only be restricted in the cases provided for by law.”",
"67. The relevant part of Article 15 § 1 reads as follows:",
"“Freedom of thought, conscience and religious conviction shall be guaranteed. ...”",
"68. Under Article 16 § 1:",
"“Everybody has the right to manifest freely his or her religion or faith, alone or jointly with others, privately or in public, through religious service, instruction, religious practice, or religious rites.”",
"69. Article 31 provides that:",
"“Everyone shall have the right to the protection of his or her health. Citizens shall have the right, on the basis of public insurance, to free health care and to health aids under the conditions provided for by law.”",
"70. As to the scope of the second sentence of Article 31, the Constitutional Court held (constitutional judgment of 10 July 1996, published in the Collection of Laws under no. 206/1996) that its content is limited to what is covered by public insurance, which in turn depends on the amount of the insurance premiums collected. All of the relevant Chapter of the Charter depends on the economic and social level achieved by the State and the attendant standard of living.",
"71. Under Article 33 § 1:",
"“Everybody shall have the right to education. School attendance shall be mandatory for the period specified by law.”",
"72. Pursuant to the relevant part of Article 41 § 1;",
"“[The right to education under Article 33] can be relied on only within the scope of the laws adopted for the implementation of that provision.”",
"Public Health Protection Act (Law no. 258/2000 Coll., as amended)",
"73. This legislation sets out the general framework for vaccination, defining its purpose, personal scope, vaccine types, the conditions for administering vaccination as well as for assessing immunity, and other matters. Section 46(1) and (6) provides for the adoption by the Ministry of Health of implementing measures, regulating in greater detail matters such as the classification of vaccines, the timing of injections and other conditions for the administration of vaccinations, and methods for checking immunity (see below). Moreover, it provides that day-care facilities for children up to the age of three and other types of preschool facilities (i.e. those that receive children until the school year following the date on which they reach the age of six) may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination due to a permanent contraindication (section 50).",
"Decree on Vaccination against Infectious Diseases",
"74. As provided for in the PHP Act, the Ministry adopted the Decree on Vaccination against Infectious Diseases. In the period under consideration in the present case, there were two successive Decrees in force: Decree no. 439/2000 Coll., as amended, until 31 December 2006, replaced by Decree no. 537/2006 Coll., as amended, from 1 January 2007 onwards. Since the provisions that are relevant to the present case are essentially identical in both instruments, further references to the Decree in this judgment mean the 2006 Decree, unless otherwise indicated.",
"75. The Decree determines the classification of vaccinations, the conditions for the administration of vaccines and the methods for examining immunity (section 1 (a)).",
"76. It defines the scope of compulsory vaccination as comprising vaccination against diphtheria, tetanus, whooping cough (pertussis), Haemophilus influenzae type b infections, poliomyelitis, hepatitis B, measles, mumps, rubella and – for children with specified health indications – pneumococcal infections (sections 4, 5 and 6).",
"77. The Decree also defines the sequence in which the vaccinations are to be administered, normally starting from the ninth week after birth, with at least two months between the first two rounds of vaccination and the third round being administered between the ages of eleven and thirteen months (sections 4 and 5). In the case of some illnesses, initial vaccination (section 2(2)(a)) is to be followed by booster vaccination (section 2(2)(b)).",
"Pharmaceutical Drugs and Medications Act (Law no. 378/2007 Coll.)",
"78. Sections 25 to 50 regulate the registration of pharmaceutical drugs, including vaccines, by the State Agency for Drug Control.",
"79. Under section 93b(1), all doctors, dentists and other health care workers have to report to the above Agency any suspected serious or unexpected side-effects of pharmaceutical drugs, on pain of a fine of up to CZK 300,000 pursuant to section 108(7) (currently equivalent to some EUR 11,350).",
"Education Act (Law no. 561/2004 Coll., as amended)",
"80. Section 33 defines the aim of preschool education as being to support the development of the personality of the child of preschool age. Such education plays a role in the healthy emotional, intellectual and physical development of children, in their acquisition of basic rules of conduct and fundamental life values, and in their developing of interpersonal relations. Preschool education provides the basic preconditions for continuing with education. It assists in equalising differences in the development of children before entering basic education and provides adapted pedagogical care to children with special educational needs.",
"81. Section 34(1) provides that preschool education is organised for children who are generally aged from three to six, but not younger than two. A child younger than two is not entitled to admission to nursery school. This provision was amended with effect from 1 September 2017, making preschool education mandatory from the beginning of the school year following the child’s fifth birthday until the beginning of mandatory school attendance. Paragraph 5 of this section includes among the conditions for school admission the vaccination requirement under section 50 of the PHP Act (see paragraph 73 above).",
"82. Under section 36(3), mandatory school attendance commences at the beginning of the school year following the date on which the child reaches the age of six, unless the child is granted a postponement.",
"Minor Offences Act (Law no. 200/1990 Coll., as amended)",
"83. At the relevant time, section 29(1)(f), dealing with minor offences in the area of health care, made it a minor offence punishable by a fine of up to the equivalent of some EUR 400 (subsection 2) to fail to discharge a duty imposed in order to prevent the occurrence or spread of infectious diseases.",
"Compensation for Health Damage due to Compulsory Vaccination Act (Law no. 116/2020 Coll.)",
"84. The Act entered into force on 8 April 2020. It provides for strict liability on the part of the State for damage to health due to compulsory vaccination (section 1). Such compensation is provided for in the event of a particularly grave injury to the health ( zvlášť závažné ublížení na zdraví ) of the vaccinated person and in respect of suffering, loss of income, impairment of one’s ability to be useful in society ( ztížení společenského uplatnění ), expenses in respect of the medical care of the vaccinated person, and care for his or her person and his or her household (section 2). The Act provides for an irreversible presumption of a causal connection between the vaccination and the symptoms appearing after the vaccination, in so far as such symptoms are recognised – in secondary legislation yet to be adopted – as likely consequences of the given vaccine (sections 3 and 8).",
"Domestic practiceSAC case-law",
"SAC case-law",
"SAC case-law",
"85. In judgment no. 3 Ads 42/2010 of 21 July 2010, an ordinary chamber of the SAC held that the 2000 Ministerial Decree exceeded the permissible limits in that it regulated matters that were reserved to the legislature. It held that, as a result of the very general wording of section 46(1) of the PHP Act, the 2000 Ministerial Decree provided for primary rights and duties beyond the limits fixed by the law. Accordingly, the court quashed an administrative decision imposing a fine on parents for failure to comply with their vaccination duty in relation to their children.",
"86. This opinion was, however, overruled by an extended chamber of that court in a decision of 3 April 2012 (no. 8 As 6/2011) in the case of the applicant Novotná. In particular, the extended chamber found as follows:",
"“The framework regulation in section 46 of the [PHP] Act on the duty for individuals to undergo vaccination and the precisions added to it by the [2006 Ministerial] Decree satisfy the constitutional requirements to the effect that duties may only be imposed on the basis and within the bounds of the law (Article 4 § 1 of the Charter) and that limitations on fundamental rights and freedoms may only be imposed by the law (Article 4 § 2 of the Charter).”",
"87. A situation in which primary duties were provided for by law (i.e. by an Act of Parliament) and clarified by secondary legislation within the limits set by that law was compatible with Article 4 § 2 of the Charter. With regard to Article 26 § 1 of the Oviedo Convention, it was similar to Articles 8-11 of the European Convention on Human Rights. In the European Court’s case-law, the term “prescribed by law” used in those provisions was interpreted in the substantive sense, so as to include not only a legislative act by a Parliament, but also any accessible and foreseeable legal rule. None of those provisions thus prevented the finer points of the vaccination duty from being regulated by an implementing instrument, provided that this was done on the basis of the law and within its limits. In the present case, the PHP Act provided for a sufficiently clear and precise framework, placing a duty, in a valid and specific manner, on certain groups of individuals to undergo vaccination after having undergone an immunity test. Although it did not define them, section 46 nonetheless brought out the fundamental meaning of the words “valid and specific vaccination”. The 2000 Ministerial Decree then specified the types of illnesses, the timetable and other details of the vaccination process. Such a legislative approach made it possible to react with flexibility to a given epidemiological situation and to developments in medical science and pharmacology. However, it did not prevent the limitations on fundamental rights provided for in the Ministerial Decree from being subjected, in specific cases, to an assessment of proportionality by the courts.",
"88. In judgment no. 4 As 2/2011 of 25 April 2012, the SAC pointed out, inter alia, that unlike for the MMR vaccination, the 2006 Ministerial Decree set out legally binding deadlines and age limits for compliance with the vaccination duty in respect of initiation of the primary immunisation series and/or booster doses for diphtheria, tetanus, whooping cough, poliomyelitis, hepatitis B and Haemophilus influenzae type b vaccination (under section 4(1) the last dose of the hexavalent vaccine was to be administered before the age of 18 months). It was therefore an error-free and complete legal norm ( perfektní právní norma ), i.e. non-compliance with it could entail a penalty under the MO Act.",
"89. In judgment no. 8 As 20/2012 of 29 March 2013, the SAC noted, with regard to the exceptional circumstances capable of outweighing the need for protection of public health within the meaning of the Vavřička jurisprudence (see paragraph 28 above), that the appellant was not alleging, for example, that submitting to the vaccination would compromise his status, or that of his parents, were they to be members of a religious community, or that it would otherwise prevent them from manifesting their beliefs. A different opinion on the part of the appellant’s parents was not sufficient. The vaccination duty pursued a legitimate aim, that of the protection of public health, which outweighed the different views of the parents of the children concerned. While everyone had the right to hold an opinion and to express it freely (Articles 15 and 16 of the Charter), this did not authorise, in a democratic State governed by the rule of law, non ‑ compliance with the regulations in force. A failure to comply entailed the consequences provided for by law.",
"Case-law of the Constitutional Court",
"(a) Judgment no. Pl. ÚS 19/14 of 27 January 2015",
"90. In the context of proceedings on constitutional appeal no. I. ÚS 1253/14 (see paragraph 93 below), in which the parents of an underage child complained that they had each been fined CZK 4,000 for having refused the routine vaccination of their child, the relevant chamber referred to the plenary formation the appellants’ free-standing request ( akcesorický návrh ) to have section 46 of the PHP Act and section 29(1)(f) of the MO Act set aside. The parents relied on the SAC’s judgment no. 3 Ads 42/2010 (see paragraph 85 above) and argued that the said provisions were contrary to Article 4 of the Charter. They further argued that the regulations on compulsory vaccination were contrary to Articles 5, 6 and 26 of the Oviedo Convention, since it was not a necessary measure for the protection of public health, in the absence of an objective basis in the form of a complex and independent analysis. Relying on their rights to dignity and respect for their physical integrity, as well as their freedom of thought and conscience, they claimed to have refused vaccination in the child’s interests, in order to protect his health. They were thus eligible for an exception within the meaning of the Vavřička jurisprudence (see paragraph 28 above). They noted in this respect that each individual’s attitude towards vaccination was based on his or her personal position, not on objective data. It was thus unthinkable that an administrative authority could re-examine the “correct” or “justified” nature of the parents’ conviction in this respect. Referring to Article 24 of the Oviedo Convention, the appellants noted that the State did not assume any liability for the side effects or damage to health caused by vaccination. There was accordingly no fair balance between the demands of the public interest and the individual’s rights.",
"91. By judgment no. Pl. ÚS 19/14 of 27 January 2015, the plenary formation of the Constitutional Court dismissed the above-mentioned free ‑ standing request.",
"It noted that the regulations on compulsory vaccination fell fully within the competence of the national legislature. As to the rule that certain matters could only be regulated by an Act of Parliament (Article 4 of the Charter), the Constitutional Court endorsed the conclusions of the extended chamber of the SAC in its judgment no. 8 As 6/2011 (see paragraph 86 above). The wording of section 46 of the PHP Act was sufficiently clear and understandable and it duly defined all necessary parameters for the regulation of details by secondary legislation. This arrangement made it possible to react promptly to the epidemiological situation and to the current state of medical and pharmacological knowledge.",
"Compulsory vaccination amounted to an interference with the individual’s physical integrity and, accordingly, with his or her right to respect for private or family life. As a restriction on this fundamental right, the vaccination duty was accompanied by safeguards to minimise any potential abuse and to prevent this medical intervention from being carried out where the conditions were not met (section 46(2) and (3)). The compatibility of this restriction with the right to respect for private life was to be established on the basis of the following five-step test. Firstly, the issue in question had to fall within the material scope of the rights that were limited, which in the present case it manifestly did. Secondly, there had to be an interference with the right in question, which in the case at hand there was, by virtue of an intrusion into the personal integrity of the vaccinated individual and, in the case of children under fifteen, an interference with the right of their parents to decide on matters concerning their care and education, or even, where applicable, with the right to manifest one’s religion or beliefs freely. Thirdly, the restriction had to be in accordance with the law, which it was, the term “law” being understood in the substantive sense, including texts of secondary legislation. Fourthly, the restriction had to pursue a legitimate aim, in this instance the protection of health. Fifthly, the restriction had to be necessary, and it was, as it was clear from data provided by national and international experts – the assessment of which was a matter for the legislature and the executive, not for the Constitutional Court – that the approach of general vaccination against the specified infectious diseases was to be recommended and that the interest in protecting public health outweighed the arguments of appellants who were opposed to vaccination.",
"In an obiter dictum, referring to Article 24 of the Oviedo Convention, the Constitutional Court considered that if the State imposed penalties for non ‑ compliance with the vaccination duty, it ought also to envisage the situation where vaccination damaged the health of the individual concerned. Thus, it was incumbent on the legislature to give consideration to regulations governing State liability for such consequences, which was not uncommon in other States.",
"(b) Decision no. III. ÚS 3311/12 of 17 August 2015",
"92. By this decision, the Constitutional Court dismissed a constitutional appeal of parents fined in minor-offence proceedings for having refused the routine vaccination of their child. The court noted, inter alia :",
"“29 ... [T]he present case is not ... an exceptional case in which compulsory vaccination cannot be enforced due to specific circumstances. In the appellants’ case ... the Constitutional Court did not find any exceptional reasons for them not to be penalised for having refused compulsory vaccination of their [child], on the grounds that the penalty would amount to an interference with their freedom of thought and conscience. The Constitutional Court did not find any exceptional or convincingly and consistently claimed reasons for which the appellants had refused to have their [child] vaccinated and which would fundamentally call for respecting their autonomy despite the undisputed and significant public interest in vaccination.",
"30. The appellants’ arguments ... remained at a completely general level; the appellants ... acted on a general conviction regarding the child’s best interest. They refused vaccination on the basis of an opinion that they had reached (only) by studying literature and other resources. A general opinion so presented cannot be understood as unique and constitutionally relevant reasons for refusing vaccination. The appellants’ assertions are not sufficiently convincing. Over the course of time they were even inconsistent, because in the proceedings before the administrative authorities the appellants cited their reasons ... in a much more urgent manner than in the proceedings before the administrative courts in which, instead of their personal reasons for refusing compulsory vaccination, the mainstay of their arguments was a general analysis of the ... compliance of compulsory vaccination legislation with the constitutional order. Before the Constitutional Court, they once again focused on the reasons for refusing vaccination in their specific case. However, the appellants did not state any relevant circumstances (they noted that their [child] was a healthy child who only suffered from occasional common illnesses) to support [the existence of] any interference with the constitutionally guaranteed rights and freedoms.”",
"(c) Judgment no. I. ÚS 1253/14 of 22 December 2015",
"93. The case was brought by parents fined for having refused several of the compulsory vaccinations of their child. In its judgment on their constitutional appeal, the Constitutional Court developed and clarified its conclusions reached in Vavřička (see paragraph 28 above). As to the right to a “secular objection of conscience”, it held:",
"“42. The existence of the constitutional judgment [in the Vavřička case] leads to the following postulates regarding the justifiability of the secular objection of conscience, which must be satisfied cumulatively. These are (1) the constitutional relevance of the claims contained in the objection of conscience, (2) the urgency of the reasons that the holder of the fundamental freedom cites in support of his objection, (3) the consistency and persuasiveness of that person’s claims, and (4) the social impact that the acceptance of a secular objection of conscience may have in the specific case.",
"43. [In the Vavřička judgment] the Constitutional Court held that if all of the above requirements were satisfied then compulsory vaccination of the particular person was not to be insisted upon, i.e. non ‑ compliance with the vaccination duty was not to be penalised, nor was the duty in that case to be enforced by other means. ...",
"44. The claims underlying the secular conscientious objection to compulsory vaccination acquire a constitutional dimension due to the collision between the protection of public health and the health of the person in whose favour the objection of conscience is applied ... Nor can the parents’ claim of an interference with their right of parental care be ignored ... Article 15 § 1 [of the Charter] on freedom of conscience or conviction of holders of a fundamental right remains immanent to the case. Nor can a very frequent argument that vaccination is an interference with bodily integrity be ignored ... Moreover, all these cases involve fundamental rights that can be weighed against each other (with a view to finding an optimal balance).",
"45. The urgency of the reasons underlying the conscientious objection to compulsory vaccination remains, undoubtedly, subjective in its nature. It is the proverbial aspect of “here and now” which impedes compliance with a lawful order without any exception. It is difficult to define the variety of the content of the objection; undoubtedly, it potentially includes the conviction that irreversible damage can be caused to the health of a close person. If this is a minor who is represented by a statutory representative, the specific aspects of his or her interest in avoiding the vaccination must be taken into consideration.",
"46. The convincing and consistent character of the claims underlying a secular conscientious objection must be assessed ad personam and cannot be subjected to the test of objective truthfulness; the content of those claims must not lack an element based on values or strongly contradict the social environment, but it must pass muster above all with the person making such claims and those who are the closest to him. The Constitutional Court has previously required [in the Vavřička case] the author of the objection to communicate with the competent public authority, i.e. to refrain from justifying his conviction only at the later stages of the proceedings. This still applies, and unambiguity and appropriate (reasonable) clarity of the manifestation of that person’s conscience must be a matter of course.",
"47. Finally, with all due respect for the autonomy of manifestations of will, the social impact of the secular objection of conscience, if it is to be accepted, must not exceed the sphere of the legitimate aims relevant for the given field of law to an excessive degree. In this specific case this means, inter alia, that the desirable level of vaccination coverage ... must be taken into account. The exception granted must not be associated with conclusions that would allow such exceptions to become the rule.",
"...",
"49. As regards the relation between the two types of conscientious objections, both religious and secular, the Constitutional Court concludes that in a secular State (Article 2 § 1 of the Charter) there is no reason to treat them differently. ...",
"50. ... [R]efusal of compulsory vaccination on the grounds of religion and belief, which cannot be completely ruled out depending on the specific circumstances, must remain a restrictively perceived exception, for which the Constitutional Court has already opened some space on account of strong reasons, but not a dispensation granted automatically to a specific religion or a group of persons professing a specific belief.",
"51. All of the above applies with equal force also in cases where a certain person is to undergo compulsory vaccination and a secular objection of conscience is raised ... [A]n exception from the statutory duty may be considered only in exceptional cases closely linked to the person subject to the vaccination duty, or to persons closely related to such person (a highly adverse reaction to previous vaccination in the case of that person, that person’s child, etc.). The opposite finding would contradict the fact that compulsory vaccination serves the protection of public health, such protection being the preferred option in the law as approved by the Constitutional Court in its judgments nos. Pl. ÚS 19/14 and Pl. ÚS 16/14.”",
"COMPARATIVE MATERIALConstitutional jurisprudence",
"Constitutional jurisprudence",
"Constitutional jurisprudence",
"94. The following relevant constitutional judgments are included in the CODICES database of the Venice Commission.",
"France",
"95. In case no. 2015-458 QPC, the Constitutional Council considered a request from the Court of Cassation for a preliminary ruling on the constitutionality of certain provisions of the Public Health Code. Those provisions related to compulsory vaccination against diphtheria, tetanus and poliomyelitis for minor children under the responsibility of their parents. The applicants in the original proceedings claimed that the compulsory vaccinations could entail a health risk, in breach of the constitutional requirement of health protection.",
"96. In a decision of 20 March 2015, the Constitutional Council ruled that the provisions in question were in conformity with the Constitution. It observed that, by making the given vaccinations compulsory, the legislature had intended to combat three diseases that were very serious and contagious or could not be eradicated. In doing so, it had made each of these vaccinations compulsory only on condition of there being no known medical contraindication.",
"97. The Constitutional Council ruled that the legislature was free to shape a vaccination policy to protect individual and public health. It was not for the Constitutional Council, which did not enjoy the same general power of assessment and decision-making as Parliament, to call into question the provisions enacted by the legislator, having regard to the state of scientific knowledge, or to seek to establish whether the objective of health protection set by the legislature might have been attained by other means, since the arrangements provided for by the law were not manifestly inappropriate to the objective pursued.",
"Hungary",
"98. In a constitutional judgment of 20 June 2007 in case no. 39/2007, the Constitutional Court examined a petition lodged by a married couple who were refusing to have their child vaccinated, and who had challenged the constitutionality of the 1997 Health Act providing for compulsory vaccination. A failure to comply warranted an administrative order for the given vaccine to be carried out, the order being directly enforceable, regardless of any appeal.",
"99. The court found, inter alia, that the protection of children’s health justified compulsory vaccination at certain ages and accepted the legislature’s position, based on scientific knowledge, that the benefits of vaccination for both the individual and society outweighed any possible harm due to side ‑ effects. The system of compulsory vaccination thus did not contravene children’s right to physical integrity. At the same time, the court acknowledged that the system of compulsory vaccination might result in more significant harm for parents who, for reasons of religious conviction or conscience, did not agree with vaccination. The regulation was however in accordance with the requirements of the neutrality of the State. The legal norms in question, being binding on everybody and protecting the health of the children concerned, all other children, and in fact society as a whole, were based on postulates of the natural sciences, rather than the acceptance of the truth content of different ideologies.",
"100. However, there had been an unconstitutional omission to legislate, as the legislature had failed to provide an effective legal remedy against the refusal of exemptions from compulsory vaccination. In particular, the statutory provision permitting the immediate enforcement of an order for vaccination, with no recourse to any legal remedy, was unconstitutional and accordingly repealed.",
"North Macedonia",
"101. In case no. U.Br. 30/2014 the Constitutional Court reviewed the constitutionality of certain statutory provisions pertaining to the compulsory vaccination of children and the consequences of non-compliance with it. The legislation in question provided for the compulsory vaccination of all persons of a certain age against tuberculosis, diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, Haemophilus influenzae type b infections and hepatitis B. In its judgment of 8 October 2014, the court held, inter alia, as follows.",
"102. Mandatory vaccination could not be called into question with regard to the constitutional provisions on the rights and duties of citizens in relation to the protection and promotion of their own health and that of others. Neither could it be questioned with regard to the provisions on the right and duty of parents to take care of and raise their children. A refusal of a vaccination by the parents not only endangered the health of their children, but also the health of other persons who had not been vaccinated on account of medical contraindications, and it thus denied them the right to a healthy life.",
"103. In order to safeguard the health of the child and the child’s right to health, which was subject to a special level of protection, it was justified to deny the parents’ freedom to refuse vaccination, since the right of the child to health prevailed over the parents’ right to choose.",
"104. Moreover, the legislature was not prevented from regulating penal policy in respect of a breach of the vaccination duty by making it punishable by a fine.",
"105. Similarly, there was no obstacle for the legislature to make enrolment in primary school dependant on the parents’ submitting proof of vaccination of the child. In that regard, the court noted specifically that since all children of the given age were eligible for enrolment in the first grade, a large number of students would enrol from different areas and backgrounds, which carried an inherent risk of the spread of certain diseases. Moreover, parents who refused to vaccinate their children were to be reminded that other parents also had the right to protection from serious illness in respect of their children, and that unvaccinated children posed a greater risk of spreading the disease, especially in child-care facilities, schools and other educational establishments.",
"Italy",
"(a) Constitutional judgment no. 5/2018",
"106. In this judgment, delivered on 22 November 2017, the Constitutional Court considered the constitutional validity of a decree-law introduced as a matter of urgency to increase the number of compulsory vaccinations from four to ten. The decree-law made access to early childhood educational services conditional on the receipt of all ten vaccines. The sanction for failure to comply was an administrative fine. This was challenged on a number of grounds, including as an unjustifiable interference with the constitutional guarantee of individual autonomy. This argument was dismissed with the following reasoning.",
"107. The court noted the preventive nature of vaccination, the critically unsatisfactory level of vaccination in Italy at the given time, and the existing trends suggesting that the rate of vaccination was deteriorating. It found that the legislation was within the scope of the discretion and political responsibility of the authorities, who were expected to assess the overriding need to intervene urgently and prior to the emergence of crisis scenarios, and to do so in the light of new data and new epidemiological phenomena. Furthermore, they were expected to act consistently with the principle of precaution, which was inherent in the approach to preventive medication, and was of fundamental importance where public health was concerned.",
"108. Pointing out that there was no scientific basis for the existing trends in popular opinion which considered vaccination to be futile or dangerous, the court noted that, in medical practice, recommendation and obligation were conjoined concepts and, therefore, moving six vaccinations from being simply recommended to being compulsory did not represent a significant change in their status. It also held that requiring a certificate for school enrolment and imposing fines were both reasonable measures for the legislature to take, not least where it had provided for initial steps to be taken before the imposition of such sanctions, i.e. one-to-one meetings with parents and guardians to inform them about the efficacy of vaccinations.",
"109. The court drew attention to its established case-law to the effect that, in the area of vaccinations, there was a requirement for balance between the individual right to health (including freedom concerning treatment) and the coexistent and reciprocal rights of others and the interests of the community, as well as, in the case of compulsory vaccinations, the interests of children, who required protection even vis-à-vis parents who did not fulfil their duties of care.",
"110. As to the interests of minor children, they were to be pursued first of all through their parents’ exercise of their joint right and duty to take action that was well-suited to protecting the health of their children. That freedom did not however extend to making choices that were potentially detrimental to the health of minor children.",
"111. A law imposing a health-related treatment was not incompatible with the Constitution if: the treatment was intended not only to improve or maintain the health of the recipient, but also to preserve the health of others; the treatment was not expected to have a negative impact on the health of the recipient, with the exclusive exception of those consequences that normally arose and, as such, were tolerable; and, in the event of further injury, the payment of just compensation to the injured party was provided for, separate and apart from any damages to which they might be entitled.",
"112. The court also noted that the issue of vaccination involved many constitutional values, the coexistence of which left room for legislative discretion in choosing the means by which to ensure the effective prevention of infectious diseases. That discretion had to be exercised in the light of the various health and epidemiological conditions, as ascertained by the responsible authorities and of the constantly evolving discoveries of medical research, to which the legislature had to turn for guidance when making its choices in that area.",
"(b) Constitutional judgments nos. 307/1990 and 118/1996",
"113. In its earlier judgment no. 307/1990, given on 14 June 1990, the Constitutional Court declared unconstitutional a law making provision for compulsory anti-poliomyelitis vaccination, due to its failure to provide for compensation for those suffering damage to their health caused by the vaccine, in the absence of liability for negligence.",
"114. The legislation subsequently enacted (Law no. 210 of 25 February 1992) was examined by the Constitutional Court in judgment no. 118/1996, of 18 April 1996. The court noted the two aspects of health in constitutional law: the individual and subjective aspect concerning a fundamental right of the individual; and the societal and objective aspect concerning health as a public interest. The risk of damage to an individual’s health could not be completely avoided. The legislature had therefore struck a balance, giving precedence to the collective aspect of health. Yet nobody could be asked to sacrifice their health to preserve that of others without being granted just compensation for damage caused by medical treatment. The court found the law to be contrary to the Constitution, in that it failed to make provision for compensating those whose health was injured by compulsory vaccination before the law entered into force. It observed that such damage gave rise to a claim for compensation under the Constitution itself without any liability for negligence being taken into consideration.",
"(c) Constitutional judgment no. 268/2018",
"115. This judgment, which was delivered on 22 November 2017 as judgment no. 5/2018 (see paragraph 106 above), concerned a legislative situation in which no compensation was available for damage to health caused by a vaccination which was recommended rather than compulsory. The court observed that there was no qualitative difference between compulsory and recommended vaccinations, the key issue being the essential objective of preventing infectious diseases that was pursued by both types. Accordingly, the exclusion of compensation was contrary to the Constitution.",
"Republic of Moldova",
"116. In its judgment no. 26 of 30 October 2018, the Constitutional Court examined a challenge to certain legislative provisions making the admission of children to community groups and educational and recreational institutions contingent upon their systematic prophylactic vaccination, the complaint being that this restricted the access of children to education.",
"117. Among other things, the court noted that the legitimate aims pursued by the challenged provisions were the protection of children’s health and public health from severe illnesses which spread more when vaccination rates were lower. A restriction on access by unvaccinated children, who had no contraindications, for a limited time pending their vaccination, was a less intrusive measure in terms of the right to respect for private life and to education and would efficiently achieve the aims pursued.",
"118. The court balanced the principle of health protection with the principles of access to education and respect for private life. Refusing to vaccinate children with no contraindications might not only entail their possible exclusion, pending their vaccination, but also exposed them to the risk of contracting an illness. The damage to their health also had negative effects on other rights they were entitled to enjoy.",
"119. Children with contraindications, while eligible for admission, were also exposed to the risk of contracting a communicable illness from unvaccinated children who had no contraindications. The consequences of an individual’s action on their innocent peers could not be ignored. In the given context, the rights of the individual were not exercised in an existential vacuum, but within an organised society.",
"120. The children of parents who did not wish them to be vaccinated in the absence of any contraindications had alternative means of learning. Also, from the perspective of leisure opportunities for children in this category, the exercise of social private life was not a central aspect of their right to respect for private life.",
"121. The differential treatment of vaccinated children compared to those who could be vaccinated but were not was objectively justified and reasonable.",
"Serbia",
"122. In case no. IUz-48/2016, the Constitutional Court examined several challenges to the constitutionality of certain legislative provisions concerning compulsory vaccination and their conformity with international agreements ratified by Serbia.",
"123. As regards the necessity in a democratic society of the measures mandated by the contested provisions, the court noted that the available 2015 immunisation records for the vaccines in the immunisation schedule showed the lowest vaccination rate in ten years. This increased the risk of epidemics of communicable diseases which had been prevented for decades by vaccination, because a high level of collective immunity was needed to prevent an outbreak of an epidemic. In view of all the circumstances, including the duty of everyone to respect the public interest and not jeopardise the health of others, the court found that the criterion of necessity was fulfilled.",
"124. Concerning the argument that, compared to children who had been vaccinated, those who remained unvaccinated were discriminated against because they were deprived of their constitutionally guaranteed right to education, the court found that the fact that children’s attendance at educational institutions was conditional on their having been vaccinated could not be construed as being relevant in constitutional terms to any form of discrimination in respect of the right to education. This was so because all children in certain age groups were subject to vaccination, unless this was contraindicated on health-related grounds. As that duty pertained equally to all persons belonging to the given group, those who did not comply with it could not be considered discriminated against vis-à-vis those who did, because they were not in the same or a similar situation.",
"Slovakia",
"125. The relevant jurisprudence is referred to in paragraph 229 below.",
"Slovenia",
"126. In a judgment of 12 February 2004 in case no. U-I-127/01, the Constitutional Court upheld the constitutionality of a system of compulsory vaccination against tuberculosis, diphtheria, tetanus, whooping cough, infantile paralysis, measles, mumps, rubella and hepatitis B. However, it found deficiencies in the existing rules and their operation as regards the mechanism for individuals to claim exemption from the vaccination duty on the grounds of health contraindication.",
"127. Moreover, the court found a further deficiency in that the legislation did not regulate the right to compensation for damage to health resulting from vaccination side-effects. In particular, under the principle of solidarity, which itself was the basis for making vaccination compulsory, the State ordering such a measure for the benefit of everyone must be required to pay compensation to those who experienced harmful side ‑ effects.",
"United Kingdom",
"128. In a case concerning the vaccination of a baby placed in the care of the local authorities, notwithstanding the objections of the parents ( Re H (A Child)(Parental Responsibility: Vaccination ), [2020] EWCA Civ 664), the judgment of the Court of Appeal of 22 May 2020 concluded as follows:",
"“(i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra ‑ indication in an individual case.",
"(ii) Under [the applicable statutory provision] a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.",
"(iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.",
"(iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.”",
"INTERNATIONAL AND EUROPEAN LAW AND PRACTICEInternational Covenant on Economic, Social and Cultural Rights",
"International Covenant on Economic, Social and Cultural Rights",
"International Covenant on Economic, Social and Cultural Rights",
"129. The Covenant, which is a part of the legal order of the Czech Republic (Decree of the Minister of Foreign Affairs no. 120/1976 Coll., in conjunction with Article 1 of Constitutional Law no. 4/1993 Coll.), reads in its relevant part as follows:",
"Article 12",
"“1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.",
"2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:",
"...",
"(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;",
"...”",
"130. In General comment No. 14 on the right to the highest attainable standard of health, published on 11 August 2000 (E/C.12/2000/4), the UN Committee on Economic, Social and Cultural Rights noted, inter alia :",
"“[Article 12.2 (c). The right to prevention, treatment and control of diseases]",
"16. ... The control of diseases refers to ... the implementation or enhancement of immunization programmes and other strategies of infectious disease control.",
"...",
"[Specific legal obligations]",
"36. The obligation to fulfil requires States parties, inter alia, to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. States must ensure provision of health care, including immunization programmes against the major infectious diseases ....",
"...",
"[Core obligations]",
"44. The Committee also confirms that the following are obligations of comparable priority:",
"...",
"(b) To provide immunization against the major infectious diseases occurring in the community;",
"(c) To take measures to prevent, treat and control epidemic and endemic diseases.”",
"131. In its Concluding observations as part of the periodic review of individual States, the UN Committee on Economic, Social and Cultural Rights has repeatedly emphasised the duty of preventive vaccination of the highest possible percentage of the population (see, for example, observations of 7 June 2010 on Kazakhstan (E/C.12/KAZ/CO/1), § 4). It has also criticised a decreased rate of vaccination (see, for example, observations of 13 December 2013 on Egypt (E/C.12/EGY/CO/2-4), § 21) and called for a reversal of that negative trend (see, for example, observations of 13 June 2014 on Ukraine (E/C.12/UKR/CO/6), § 19).",
"United Nations Convention on the Rights of the Child",
"132. This Convention is likewise a part of the legal order of the Czech Republic (Notice of the Federal Ministry of Foreign Affairs no. 104/1991 Coll., in conjunction with Article 1 of Constitutional Law no. 4/1993 Coll.).",
"Article 3 § 1 provides:",
"“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”",
"Article 24 provides as relevant:",
"“1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health ... States Parties shall strive to ensure that no child is deprived of his or her right of access to ... health care services.",
"2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:",
"(a) To diminish infant and child mortality;",
"(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;",
"(c) To combat disease ..., including within the framework of primary health care ...;",
"...",
"(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health ...;",
"(f) To develop preventive health care ...”",
"133. According to General comment No. 15 by the United Nations Committee on the Rights of the Child in relation to the right of the child to the enjoyment of the highest attainable standard of health, published on 17 April 2013 (CRC/C/GC/15), the realisation of this right entails the universal availability of immunisation against the common childhood diseases.",
"134. In its Concluding observations as part of the periodic review of individual States, the UN Committee on the Rights of the Child often emphasises the need to strengthen the system of vaccination of children, including increased vaccination coverage, and recommends the full vaccination of all children. As regards the Czech Republic, in observations of 18 March 2003 the Committee noted that the vaccination uptake was excellent (CRC/C/15/Add.201, § 3).",
"Documents of the World Health Organisation (WHO)",
"135. In its “Global Vaccine Action Plan” published in 2013 the WHO recommended attaining a national coverage rate of at least 90% in relation to all vaccines that form part of national immunisation programmes. As regards vaccination in general, it made the following observations:",
"“Overwhelming evidence demonstrates the benefits of immunisation as one of the most successful and cost-effective health interventions known. Over the past several decades, immunization has achieved many things, including the eradication of smallpox, an accomplishment that has been called one of humanity’s greatest triumphs. Vaccines have saved countless lives, lowered the global incidence of polio by 99 percent and reduced illness, disability and death from diphtheria, tetanus, whooping cough, measles, Haemophilus influenzae type b disease, and epidemic meningococcal A meningitis.",
"...",
"Immunization is, and should be recognized as, a core component of the human right to health and an individual, community and governmental responsibility. Vaccination prevents an estimated 2.5 million deaths each year. Protected from the threat of vaccine-preventable diseases, immunized children have the opportunity to thrive and a better chance of realizing their full potential. These advantages are further increased by vaccination in adolescence and adulthood. As part of a comprehensive package of interventions for disease prevention and control, vaccines and immunization are an essential investment in a country’s – indeed, in the world’s – future.",
"...",
"The last century was, in many respects, the century of treatment, resulting in dramatic reductions in morbidity and mortality, with the discovery and use of antibiotics as one of the biggest agents of change in health. This century promises to be the century of vaccines, with the potential to eradicate, eliminate or control a number of serious, life-threatening or debilitating infectious diseases, and with immunization at the core of preventive strategies.”",
"136. One of the main aims of the WHO’s Global Immunisation Vision and Strategy is to immunise “more people against more diseases”.",
"European Social Charter",
"137. The Social Charter entered into force in respect of the Czech Republic on 3 December 1999 (Notice of the Ministry of Foreign Affairs no. 14/2000 Collection of international treaties). It forms part of the legal order of the Czech Republic and in case of conflict has precedence over statute (Article 10 of the Constitution). The relevant provision reads as follows:",
"Article 11 – The right to protection of health",
"“With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia :",
"...",
"3. to prevent as far as possible epidemic, endemic and other diseases.”",
"138. In the case of Médecins du Monde – International v. France (collective complaint no. 67/2011, decision on the merits of 11 September 2012) the European Committee of Social Rights explained, inter alia :",
"“160. Article 11 § 3 requires states to ensure high immunisation levels, in order to not merely reduce the incidence of these diseases, but also to neutralise the reserves of viruses and thus to reach the objectives set by the [WHO]. The Committee underlines that vaccinations on a large scale are recognised as the most efficient and most economical means of combating infectious and epidemic diseases (see Conclusions XV-2, Belgium, Article 11 § 3). This concerns the population in general ...”",
"139. If the vaccination coverage in a Council of Europe Member State is too low, the Committee will find that the situation is not in conformity with Article 11 § 3 of the Charter (see e.g. Conclusions XV-2, Belgium, 31 December 2001), or it can warn the State concerned. The Committee considers the WHO targets to be the reference criteria.",
"140. In the conclusions of 2 January 2010 (XIX-2/def/CZE/11/3/EN) on review of the Czech Republic, the Committee found, pending receipt of the information requested, that the situation in the Czech Republic, including that in matters of immunisation, was in conformity with Article 11 § 3 of the Charter.",
"Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention)",
"141. The Oviedo Convention was opened for signature on 4 April 1997 and entered into force in respect of the Czech Republic on 1 October 2001 (Notice of the Ministry of Foreign Affairs no. 96/2001 Collection of international treaties). It forms part of the legal order of the Czech Republic and has precedence over statute in case of conflict (Article 10 of the Constitution). The relevant parts read as follows:",
"Article 5 – General Rule",
"“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.",
"This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.",
"The person concerned may freely withdraw consent at any time.”",
"Article 6 – Protection of persons not able to consent",
"“...",
"2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.",
"The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.",
"...”",
"Article 24 – Compensation for undue damage",
"“The person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law.”",
"Article 26 – Restrictions on the exercise of the rights",
"“1. No restrictions shall be placed on the exercise of the rights and protective provisions contained in this Convention other than such as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others.",
"...”",
"Recommendation 1317 (1997) of the Parliamentary Assembly of the Council of Europe (PACE), entitled “Vaccination in Europe”",
"142. The relevant passages of the Recommendation, which was adopted on 19 March 1997, read as follows:",
"“5. The Assembly considers that efforts to improve the immunisation level should not be concentrated solely on the plight of the countries undergoing transition. The immunisation level of populations in western Europe has been steadily declining in recent years. The low percentage of fully vaccinated people, coupled with outbreaks of infectious diseases in the same geographic area, raises fears of major epidemics in Western Europe too.",
"6. The Assembly therefore recommends that the Committee of Ministers invite member states:",
"6.1. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance;",
"...",
"7. The Assembly furthermore invites the Committee of Ministers:",
"7.1. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example the WHO, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost;",
"7.2. to call upon member states to ratify the European Social Charter of the Council of Europe, in particular Article 11, securing ‘The right to protection of health’, and to instruct the Charter’s supervisory bodies to pay due attention to the fulfilment of this undertaking.”",
"Resolution 1845 (2011) of the PACE, entitled “Fundamental rights and responsibilities”",
"143. The relevant passages of the Resolution, which was adopted on 25 November 2011, read as follows:",
"“1. Rights, duties and responsibilities cannot be dissociated from each other. Living as members of society inevitably entails duties and responsibilities as well as rights.",
"...",
"4. Some duties are already established in international human rights instruments and national legal orders. These duties are indicative of the existence of unwritten fundamental responsibilities.",
"5. Duties imposed by law are subject to the proportionality principle. When a burden is placed on an individual, in the name of the general interest, a fair balance has to be struck between the various interests at stake.",
"6. Likewise, responsibilities can never be so heavy that assuming them would bring the individual’s rights, particularly his or her fundamental rights, into jeopardy. Responsibilities should remain reasonable at all times.",
"...",
"8. The Assembly:",
"8.1. hereby identifies the following set of fundamental responsibilities:",
"8.1.1. all individuals have the general fundamental responsibility ... to respect the rights of others whilst exercising their own rights;",
"8.1.2. furthermore, all individuals have specific fundamental responsibilities to respect and protect human life, ... to show solidarity, to act responsibly towards children, ...;",
"8.2. emphasises that these fundamental responsibilities can never be construed as impairing, restricting or derogating from the rights and freedoms contained in the [Convention], the revised European Social Charter ... and other international and regional human rights instruments;",
"8.3. calls on the member states of the Council of Europe to take these general and specific fundamental responsibilities into account in a proportional way when dealing with individuals.”",
"Law of the European Union",
"144. Title XIV of Part Three of the Treaty on the Functioning of the European Union, in its consolidated version, deals with public health. Its relevant part reads:",
"Article 168",
"“1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.",
"Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical ... illness and diseases, and obviating sources of danger to physical ... health. Such action shall cover the fight against the major health scourges, ..., their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.",
"...",
"2. The Union shall encourage cooperation between the Member States in the areas referred to in this Article ...It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.",
"...",
"3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.",
"...",
"5. The European Parliament and the Council ... may also adopt incentive measures designed to ... combat the major cross-border health scourges, measures concerning ... combating serious cross-border threats to health...”",
"145. Article 35 of the Charter of Fundamental Rights of the European Union, dealing with health care, and appearing under Title IV, “Solidarity”, provides:",
"“Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.”",
"146. In response to a reference for a preliminary ruling submitted by the Supreme Court of Slovakia, originating in proceedings concerning parents’ duty to have their underage children vaccinated against certain diseases, the Court of Justice of the European Union issued an Order of 17 July 2014 in Milica Široká v Úrad verejného zdravotníctva Slovenskej republiky (Case C ‑ 459/13, EU:C:2014:2120, paragraph 25) to the effect that:",
"“… there is no evidence in the order for reference to indicate that the objective of the main proceedings, relating to the vaccination of underage children against certain diseases, concerns the interpretation or application of a rule of Union law other than those set out in the Charter. It follows that the main proceedings do not correspond to a situation in which Union law is being implemented within the meaning of Article 51, paragraph 1, of the Charter.”",
"147. In 2005 the European Centre for Disease Prevention and Control was established. Its mission is to identify, assess and communicate current and emerging threats to human health posed by infectious diseases.",
"148. On 1 December 2014 the Council of the European Union adopted conclusions concerning vaccination as an effective tool in public health, noting, inter alia, that:",
"“… communicable diseases, including some re-emerging ones, such as Tuberculosis, measles, pertussis and rubella, still present a public health challenge and can cause a high number of infections and deaths, and that the recent emergence and outbreaks of communicable diseases, such as polio, avian influenza H5N1 and H7N9 ... and Ebola virus disease have confirmed that vigilance must remain high also with respect to diseases that are not currently present in the territory of the Union.",
"...",
"[V]accination programmes are the responsibility of individual Member States and ... various vaccination schemes exist in the EU ...",
"[M]any vaccines used in community vaccination programmes have been able to prevent disease in individuals and at the same time interrupt the circulation of pathogens through the so-called ‘herd immunity’ phenomenon, contributing to a healthier global society. Community immunity could thus be considered an objective in national vaccination plans.”",
"149. The resolution of the European Parliament adopted 19 April 2018 on vaccine hesitancy and the drop in vaccination rates in Europe calls on Member States to ensure sufficient vaccination of healthcare workers, take effective steps against misinformation, and implement measures for improving access to medicines. It also calls on the Commission to facilitate a more harmonised schedule for vaccination across the European Union.",
"150. On 7 December 2018 the Council of the European Union adopted its recommendation on strengthened cooperation against vaccine ‑ preventable diseases. The recommendation recognises that vaccination is one of the most powerful and cost-effective public health measures developed in the twentieth century and remains the main tool for primary prevention of communicable diseases. Moreover, among the recommendations for Member States it includes the following:",
"“1. Develop and implement vaccination plans, at national and/or regional level, as appropriate, aimed at increasing vaccination coverage with a view to reaching the goals and targets of the WHO’s European Vaccine Action Plan by 2020. These plans could include, for example, provisions for sustainable funding and vaccine supply, a life-course approach to vaccination, capacity to respond to emergency situations, and communication and advocacy activities.",
"2. Aim to achieve by 2020, for measles in particular, a 95 % vaccination coverage rate, with two doses of the vaccine for the targeted child population, and work towards closing the immunity gaps across all other age groups, with a view to eliminating measles in the EU.",
"3. Introduce routine checks of vaccination status and regular opportunities to vaccinate across different stages of life, through routine visits to the primary healthcare system and through additional measures taken, for example when beginning (pre-)school, in the workplace or in care facilities, according to national capacities.”",
"151. The 2018 report by the European Commission on the state of vaccine confidence in the EU includes the following observations:",
"“High confidence in vaccination programmes is crucial for maintaining high coverage rates, especially at levels that exceed those required for herd immunity. Across the European Union (EU), however, vaccine delays and refusals are contributing to declining immunisation rates in a number of countries and are leading to increases in disease outbreaks. Recent measles outbreaks – the highest in the EU for seven years – illustrate the immediate impact of declining coverage on disease outbreaks.”",
"EXPERT material relied on by the Government",
"152. On 6 November 2015 the Czech Vaccinology Society ( Česká vakcinologická společnost ), the key advisory body in the field of State vaccination policy in the Czech Republic, and the Czech Paediatric Society ( Česká pediatrická společnost ) issued a joint statement for the purposes of these proceedings before the Court. They, as well as the Association of General Practitioners for Children and Youth ( Sdružení praktických lékařů pro děti a dorost ) and the Czech Medical Chamber ( Česká lékařská komora ), resolutely supported maintaining the compulsory vaccination system as it exists in the Czech Republic. It was noted, inter alia, that vaccination was undoubtedly one of the most efficient preventive public health measures and that, since the introduction of compulsory vaccination, the occurrence of and deaths caused by vaccine-preventable diseases had radically dropped. Aiming mainly to protect children suffering from severe chronic diseases, for whom vaccination was ineffective or contraindicated, it secured high global vaccination coverage and averted human deaths and economic losses.",
"Any failure to follow the immunisation schedule was dangerous both for the unvaccinated individual, since it increased the risk of health damage and even death caused by a preventable infectious disease in extreme cases, and for the entire population, if a higher percentage of children were not properly vaccinated. Should vaccination coverage even slightly decline and the non-immune population percentage rise, disease outbreaks could reappear even for diseases that are no longer common nowadays.",
"153. The Chief Medical Officer of the Czech Republic ( Hlavní hygienik České republiky ) issued an opinion for the purposes of the present proceedings before the Court. He referred to the concept of “herd immunity” as a special immunity phenomenon occurring when a significant proportion of the population was vaccinated against a specific disease, thereby providing a measure of indirect protection for individuals who had not been vaccinated or in whom immunity gained by vaccination had not developed. A dramatic drop in that coverage, for example to less than 95% in relation to measles, would mean that the herd immunity threshold would not be achieved, transmission of infections within the population could increase and the incidence of new cases of the disease could rise.",
"154. In 2010 the National Immunisation Commission ( Národní imunizační komise ) (“the NIC”) was set up as an advisory body of the Ministry with the principal mission to identify infectious diseases in respect of which the outbreak rate could be influenced by vaccination, to determine the optimum strategy for vaccination policy in the Czech Republic, to determine the State’s priorities in vaccination and to discuss proposals to amend the vaccination strategy. The NIC is composed of representatives of the Ministry and of a number of learned societies with relevant expertise. It has the power to request cooperation from other external experts. The minutes of its meetings are published on the Ministry’s website.",
"155. In 2015, in a special issue of its information bulletin, the State Agency for Drug Control (see paragraph 78 above) addressed the issue of adverse side-effects of vaccines, as reported in 2014. The vast majority of those effects had in fact been expected reactions, already described in the summary of product characteristics for the medicinal product concerned.",
"156. In June 2015 the Ministry set up the Working Commission for Vaccination ( Pracovní komise pro problematiku očkování ) to provide a broad platform for discussions between experts and the public about vaccination strategy in the Czech Republic, and included in its membership the Czech Human Rights League and ROZALIO, a third-party intervener before the Court in the present case.",
"157. In 2012 the Vaccine European New Integrated Collaboration Effort (VENICE), a network of national experts from all Member States of the European Union and Iceland and Norway working in the field of immunisation, published a study entitled “Mandatory and recommended vaccination in the EU, Iceland and Norway: results of the VENICE 2010 survey on the ways of implementing national vaccination programmes”. This study provides, inter alia, an overview of the compulsory vaccination situation in the countries concerned. Another overview of this situation was carried out by the Czech Parliamentary Institute in a report of June 2014. According to these sources, fifteen countries did not impose any compulsory vaccinations and fourteen countries required one or more vaccinations. In eight of the latter, vaccination was compulsory against the same or a higher number of diseases as in the Czech Republic. Although in some States vaccination of children was not compulsory in general, it could be ordered in specific cases, either collectively in response to an emergency or in other circumstances. As regards legislation on strict liability for health damage caused by vaccination, according to a WHO study published in 2011, only nineteen countries in the world had special compensation schemes, of which thirteen were Council of Europe member States.",
"THE LAW",
"PRELIMINARY OBSERVATION",
"158. At the outset, the Court points out that the present case relates to the standard and routine vaccination of children against diseases that are well known to medical science. These six applications, as indicated above, were introduced between 2013 and 2015 and concern the policy of the respondent State to make the set of relevant vaccines compulsory.",
"JOINDER OF THE APPLICATIONS",
"159. Having regard to their similar subject matter, the Court finds it appropriate to examine the applications jointly in a single judgment (Rule 42 § 1 of the Rules of Court).",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"160. The applicants complained that it had been arbitrary to impose a fine on Mr Vavřička and to refuse the child applicants admission to nursery school on account of the failure of the parents to comply with their statutory duty to have their children vaccinated according to the prescribed vaccination schedule. They relied on Article 8 of the Convention, the relevant part of which reads as follows:",
"“1. Everyone has the right to respect for his private ... life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"AdmissibilityApplication of Mr Vavřička",
"Application of Mr Vavřička",
"Application of Mr Vavřička",
"161. In relation to the amount of the fine imposed on the applicant, the Government pointed out that it was rather negligible (equivalent to EUR 110 at the relevant time). The applicant had not therefore suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. Moreover, in their view the remaining conditions for the application of this provision were also fulfilled, as a result of which the application was inadmissible as a whole.",
"162. The applicant argued that, at the relevant time, he had been unemployed, had no income and was going through divorce proceedings. The amount of the fine represented more than half of the statutory minimum monthly wage at the time. In addition to the financial burden it had placed on him, he had been distressed by uncertainty as to what other measures the authorities would take in response to his failure to respect the vaccination schedule concerning his children.",
"163. The Court will here examine the Government’s objection in so far as it concerns the applicant’s complaint under Article 8. It considers that this objection cannot be accepted. This application, along with the others, is now before the Court’s Grand Chamber because it was indeed considered to raise serious questions affecting the interpretation of the Convention or the Protocols thereto and therefore relinquished in accordance with Article 30 of the Convention, neither of the parties having availed themselves of their power to object to this. Moreover, the application of Mr Vavřička raises a distinct aspect, as he alone was subject to a fine for non-compliance with the vaccination duty. The Court is thus of the view that the conditions set down in Article 35 § 3 (b) are not met, since in any event respect for human rights as defined in the Convention and the Protocols thereto requires an examination of this part of Mr Vavřička’s application on the merits.",
"164. The Government’s objection under Article 35 § 3 (b) of the Convention, in so far as it relates to this applicant’s complaint under Article 8, must accordingly be dismissed.",
"Applications of Mr Brožík and Mr Dubský",
"165. In relation to their applications as a whole, the Government pleaded non-exhaustion of domestic remedies, pointing out that the merits of the case had been decided by the judgment of the Hradec Králové Regional Court of 10 May 2016 (see paragraph 55 above) and that the applicants could and should have pursued their case further by way of a cassation appeal and a constitutional appeal.",
"166. In reply, the applicants pointed out that their applications concerned their request to the Regional Court of 18 July 2014 for an interim measure and the outcome of those proceedings. In that regard, the final domestic decision was that of the Constitutional Court of 23 October 2014 (see paragraph 54 above). As that decision was final and not subject to any further appeal, the requirement of exhaustion of domestic remedies had undoubtedly been satisfied.",
"167. The Court will start by examining the Government’s objection in so far as it concerns the applicants’ complaints under Article 8. To put both the objection and the applicants’ reply in perspective, the Court notes that, in their application forms, the applicants relied on Article 6 § 1 of the Convention and directed their complaints against the dismissal of their application for an interim measure in the course of the proceedings on the merits. Anticipating that the latter proceedings would last beyond their preschool age and that their outcome could by then no longer bring about any change in the fact that they had been prevented from attending nursery school, the applicants argued that by not granting them the interim measure the domestic courts had in fact denied them an effective remedy under Article 13 in respect of what they considered to be a violation of their rights under Articles 8 and 14 of the Convention and Article 2 of Protocol No. 1.",
"168. The Court has already characterised these complaints as falling, inter alia, under Article 8 of the Convention and it was on that basis that the two applications were communicated, to which there was no objection from the parties.",
"169. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case, and is not bound by the characterisation given by an applicant or a Government (see, for example, Molla Sali v. Greece [GC], no. 20452/14, § 85, 19 December 2018, and also Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 123-26, 20 March 2018). In view of the Court’s interpretation of the object of all the applicants’ Article 8 complaints, as addressed in more detail below, it considers that the Government’s non-exhaustion plea in relation to the cases of Brožík and Dubský raises issues that are closely linked to the merits of their Article 8 complaint.",
"170. Accordingly, in so far as it relates to that aspect of these two applications, the Government’s objection should be joined to the examination of the merits of the complaint raised under Article 8.",
"Conclusion in relation to all the applications",
"171. The Court notes that the applicants’ Article 8 complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"172. The applicant Vavřička complained that it had been arbitrary to impose a fine on him for his failure to have his children vaccinated in accordance with the applicable schedule. The child applicants argued that it had been arbitrary to refuse them admission to nursery school for the same failure on the part of their respective parents.",
"173. As regards the applicability of Article 8, the applicants invoked their right to personal autonomy in making decisions concerning their health and, in the case of Mr Vavřička, the health of his children. The child applicants also relied on their right to personal development in the context of attending nursery school. The applicants further referred to a right of parents to care for their children in accordance with their opinions, convictions and conscience and in keeping with the children’s best interests. In that regard, they submitted that the best interests of a child were to be primarily assessed and protected by his or her parents, any State intervention being permitted only as a last resort in the most extreme circumstances.",
"174. They further submitted that since the detailed arrangements for the vaccination duty had been laid down only in secondary legislation (the Ministerial Decree), it could not be considered as being “prescribed by law” within the meaning of Article 8.",
"175. Moreover, in their view the process of defining the vaccination schedule was not transparent, lacked proper analysis and any public debate and suffered from a conflict of interest on the part of some members of the official bodies involved. In particular, relying on a reply of the Ministry dated 7 February 2020 to their enquiry, the applicants argued that the authorities had failed to provide them with sufficient information showing that the existing compulsory vaccinations were in fact necessary and justified. Furthermore, in defining the vaccination policy, the Ministry had wielded unlimited discretion.",
"176. In addition, the applicants contended that in a system with compulsory vaccination there was an incentive for fraudulent reporting of vaccination status. This problem did not arise in systems based on voluntary vaccination, which for this reason produced more reliable statistical data on vaccination uptake. In turn, these data could serve to shape the system in a more adapted and efficient way.",
"177. In so far as the Government relied on the authority of the learned societies specialised in the area of vaccinology in the Czech Republic or of the WHO (see paragraphs 152 et seq. above), the applicants submitted that these were broadly sponsored by pharmaceutical corporations. In particular, the applicants disagreed on matters such as the impact of vaccination on reducing mortality, the susceptibility of infants to infections, the negative impact of non ‑ vaccination and the effectiveness of some of the prescribed vaccines. Moreover, they addressed various aspects of the functioning and development of the vaccination system, for example the interpretation in the Czech Republic of the criterion of permanent contraindication to vaccination. Furthermore, the applicants submitted that in so far as potential side-effects of compulsory vaccines played a role in the assessment of their necessity and justification, these should include not only the immediate side-effects but also long-term side-effects consisting of a general weakening of the vaccinated persons’ immunity to various illnesses.",
"178. It was not justified to refuse access to nursery schools as a form of punishment for the fact that the children were not vaccinated. The refusal of admission to preschool had meant that the families of the child applicants had had to provide care for them by their own means, which had impacted on the family as a whole, both financially and socially. Depriving the child applicants of preschool education had put them at a significant disadvantage in their subsequent education. This was particularly important for the applicant Novotná, who was interested in pursuing a particular educational model.",
"179. The applicants argued that the Vavřička jurisprudential exception to the vaccination duty (see paragraphs 28 and 93 above) was almost never granted in relation to admission to nursery school. Moreover, the applicant Vavřička argued that in his case it had been defined by the Constitutional Court in a retroactive manner. On that ground, he claimed that the law at the relevant time had been lacking in quality and that he could not have made proper use of it.",
"180. As regards the consistency of the attitude of the applicant Vavřička towards the issue of vaccination, given that he had had his children vaccinated against all of the illnesses except for poliomyelitis, hepatitis B and tetanus, he submitted through his lawyer that he was entitled to change his convictions over the course of time. As recognised by the Constitutional Court, what counted was whether or not the conviction remained constant throughout the respective proceedings, and this had been so in his case.",
"181. In addition, the applicants argued that any judicial review available was merely formal and did not involve any real substantive review of the rationality and proportionality of the vaccination duty.",
"182. Furthermore, at the relevant time the law did not provide for any means of claiming compensation in respect of non-culpable vaccine injury to health. Under the compensation mechanism that was subsequently introduced, compensation was available only in the event of a “particularly grave injury to health”, which was a prohibitively high threshold (see paragraph 84 above).",
"183. In contrast to the child applicants, for whom having been vaccinated was a prerequisite for admission to nursery school, there was no such condition for the employment of nursery school staff. Some of the statutorily prescribed vaccines concerned illnesses that were not transmissible, or not transmissible in a nursery school setting.",
"184. In the view of the applicants, the aim of protecting the health of other children could be achieved by less intrusive means, such as the exclusion of unvaccinated children from educational establishments only in the event of a threatened or actual outbreak of one of the diseases.",
"185. The applicants acknowledged that vaccination involved issues of general interest, social solidarity and shared responsibility. The problem was that of proportionality. A voluntary vaccination model was based on positive motivation and was therefore both more efficient overall and more proportionate than the mandatory model based on compulsion that was in place in the Czech Republic, which they considered unacceptable.",
"186. The interference with the applicants’ Article 8 rights had accordingly not been necessary in a democratic society.",
"(b) The Government",
"187. The Government emphasised that it was important to clarify who was the applicant in each case – child or parent – so as to determine whether and to what extent the matters complained of fell within the Court’s jurisdiction ratione personae.",
"188. Regarding the issue of the best interests of the child, which was at stake in cases such as the present ones, the Government considered that it was reflected in the right of the child to the enjoyment of the highest attainable standard of health within the meaning of Article 24 of the Convention on the Rights of the Child. In individual cases, the child’s best interests were to be assessed in the light of any objections of the parents, which were to be examined in the appropriate proceedings, ultimately with an element of judicial control.",
"189. It was accordingly not possible a priori to presume that the interests of the parents were identical to those of the children. There was at least a potential for conflict between the respective interests.",
"190. Responding to the argument of the applicant Roleček that in consequence of his non-admission to nursery school his mother had been obliged to stay at home with him and that, as a result, their family life had been impacted, the Government noted that the fact that family members were required to enjoy each other’s company in this way could not constitute an interference with the right to respect for family life.",
"191. Moreover, the Government pointed out that the parameters of the present applications were limited to the facts that directly concerned the applicants and did not include other aspects of the Czech vaccination scheme as it had evolved over time.",
"192. Nevertheless, the Government did not contest that the facts of the six applications fell within the scope of the right to respect for private life and acknowledged that, regarding the applicant Vavřička, the fine imposed on him constituted an interference with that right.",
"193. As to the child applicants, irrespective of slight distinctions in how their Article 8 complaints before the Court had been formulated, in view of the actual consequences for them, consisting of their non-admission to nursery school, they were all in fact in the same position. The existence as such of the applicable legal framework did not amount to an interference with their Article 8 rights. To that end, the Government sought to distinguish the child applicants’ cases from those such as, for example, Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45), Norris v. Ireland (26 October 1988, § 38, Series A no. 142) and Modinos v. Cyprus (22 April 1993, § 29, Series A no. 259), in that the legislative restrictions imposed on the child applicants were not absolute but subject to exceptions and applied only for a limited time (until the mandatory school attendance age – see paragraph 82 above).",
"194. Moreover, the non-admission of the child applicants to nursery school was due to their parents’ failure to comply with a statutory duty, on subjective grounds put forward by the parents. It was questionable whether it had been in the best interests of the applicants to have been prevented by their parents from attending nursery school and spending time with children of a similar age. The Government pointed out that, unlike in Boffa and Others v. San Marino (no. 26536/95, Commission decision of 15 January 1998, Decisions and Reports (DR) no. 92-B, p. 27), these applicants were the children and what was at stake in their case was their non ‑ admission to a childcare establishment rather than a fine or any other type of penalty. Furthermore, attending nursery school was a public activity and it accordingly fell outside the scope of Article 8 of the Convention. In addition, there were alternative ways of developing one’s personality and the child applicants’ inability to attend nursery school had not fundamentally interfered with their right to development and education. Accordingly, in the Government’s submission, there had been no interference with the child applicants’ Article 8 rights.",
"195. Should the Court nevertheless find that there had been an interference, the Government maintained that it had been duly “prescribed by law”. The domestic legal framework consisted of the rules on the duty to vaccinate in conjunction with the rules on liability for a minor offence where the duty was not complied with, and also the rules governing admission to childcare establishments. Those rules had the quality of “law” in terms of the Court’s case-law; in so far as they originated in secondary legislation, they were subject to judicial review. Moreover, the constitutionality of the given legislative arrangement had been repeatedly examined and upheld by both the SAC and the Constitutional Court.",
"196. There was no real dispute about the legitimacy of the aim served by the impugned interference, which was the general interest of society in protecting public health as well as the protection of the rights and freedoms of others. In more concrete terms, vaccination protected those vaccinated as well as others, in particular vulnerable persons who could not themselves be vaccinated or in respect of whom immunisation had been ineffective. While vaccinations were voluntary in some countries and compulsory in others, the underlying aim was the same and vaccination was the safest and the most cost-effective way of achieving it.",
"197. In relation to the necessity of any interference in abstracto, the Government relied on their positive obligations under the Convention to take measures in the sphere of protection of life and referred to their similar obligations under other international legal instruments. More specifically, States were under a positive obligation to put in place effective public health policies for combating serious and contagious diseases and to protect the life and physical integrity of those within their jurisdiction. In that regard, it was relevant that the diseases in respect of which vaccination was compulsory were all very serious and mostly highly contagious. The risk of these diseases spreading was amplified by the current high level of migration. As these diseases had now effectively been controlled, public and media attention had shifted away from disease prevention to vaccine safety. This had the potential to distort the perception of reality and to generate vaccine misinformation, which in turn could result in decreasing vaccination rates and the possible return of previously controlled vaccine ‑ preventable diseases. Vaccine hesitancy was recognised as a serious global problem. Making vaccination compulsory was a natural response, in that it was demonstrated that it led to an improvement of the vaccination coverage. Other European States were resorting to this approach.",
"198. In the Czech Republic, vaccines were provided free of charge by the State. The vaccination duty was primarily aimed at children because they were the most vulnerable. In a preschool setting they were inevitably exposed to a higher risk of infection. Therefore, carrying out vaccination at a young age was conducive to achieving the overall aims of the vaccination policy. In that regard, the Government acknowledged that not all of the vaccines that were mandatory in the Czech Republic were aimed at achieving herd immunity and submitted that the herd immunity thresholds varied according to the specific illness in question.",
"199. The vaccination duty was not directly enforceable and any sanctions for a failure to respect it were merely administrative, with a fine only being imposable as a last resort and only once.",
"200. The scope of the vaccination duty was determined by the Ministry on the recommendation of its advisory board of epidemiologists and, since 2010, the NIC (see paragraph 154 above). In compliance with the requirements of the Disclosure Code of the European Federation of Pharmaceutical Industries and Associations and those of the WHO, at the beginning of every meeting of the NIC each of its members had to make a declaration as to any conflict of interests he or she might have in relation to any item on the meeting’s agenda. As for the NIC’s membership, the fact that it was limited to officials and experts reflected the prevailing practice among European States.",
"201. The Government rejected the applicants’ criticism that the Czech vaccination scheme was not based on proper scientific analysis. In particular, publicly available serological surveys had been performed since 1960. Both the scope and the parameters of the scheme were under constant review and there was a comprehensive mechanism in place for monitoring any adverse effects of pharmaceuticals, including vaccines.",
"202. A vaccination could only take place after a check-up for fitness and there were statutory as well as case-law exceptions. The latter had been defined by the Constitutional Court in the Vavřička case (see paragraph 28 above) and required no legislative implementation. Although it was true that there were no concrete examples that could be cited of application of the case ‑ law objection of conscience in relation to nursery-school admission, the exception was applicable in that context, in particular if there had been any adverse health effects of vaccination in the family of the child concerned.",
"203. In addition, the legislation left a certain leeway to the parents in selecting the vaccines to be used and the relevant dates, within a defined period for vaccination. Moreover, experience showed that the vaccination policy in place was in fact successful and all relevant Czech expert societies were clearly in favour of preserving it (see paragraphs 152 et seq. above). Any fines or non ‑ admissions to nursery school in connection with a failure to comply with the vaccination duty had to be based on a reasoned decision that was subject to judicial review at several levels of jurisdiction. As there was clearly no European consensus on the matter of compulsory vaccination, the margin of appreciation left to the Member States was wide. An additional reason for allowing a wide margin was that the issue involved the assessment of expert and scientific data by the national authorities.",
"204. As regards the six applications in concreto, the Government emphasised that as no vaccination had actually taken place against any parent’s wishes, there had been no interference with anyone’s physical integrity. None of the applicants had shown at the national level that any of the criteria for an exemption from the vaccination duty on the basis of religion, conscience or otherwise, had been met. The applicants had rather relied on no more than a generally dismissive attitude towards vaccination. In particular, in the proceedings brought by the applicants Novotná, Hornych and Roleček, the SAC had specifically noted that they had neither invoked any fundamental rights or freedoms nor relied on any exceptional circumstances at all.",
"205. While it was true that no specific vaccination requirement applied to the hiring of nursery school personnel, such persons were subject to the general vaccination duty applicable to anyone residing on the territory of the Czech Republic. It was thus highly unlikely that such personnel would not have previously received the relevant primary or booster vaccinations, in line with that duty.",
"206. As regards the possibility to claim compensation in respect of damage to health due to vaccination performed in accordance with the applicable rules and standards, the Government confirmed that there was no provision for granting compensation in respect of any such damage occurring after 31 December 2013. However, any damage caused prior to that date would be covered by the previous legislative regime, which had provided for compensation. New legislation adopted in 2020 made provision for this once again (see paragraph 84 above). This legislative development was due to the fact that, under the original regime, it was the healthcare provider administering the vaccine who could be held strictly liable for damage to the patient’s health. However, as that liability essentially had to do with the public interest, it should rest with the State.",
"207. Moreover, the costs of the treatment of any harmful side-effect of vaccination would be covered by public health insurance. Nevertheless, serious side ‑ effects, i.e. with life-long health consequences, were rare, with no more than six such incidents per year for 100,000 vaccinated newborns.",
"208. Although the jurisprudential exception to the vaccination duty on the basis of the right to freedom of religion or belief had been recognised for the first time by the Constitutional Court in the Vavřička case, this did not render the domestic courts’ interpretation and application of the existing legislation arbitrary. Regarding the applicant Novotná, the fact that the decision not to admit her to nursery school was taken in reopened proceedings after she had initially been admitted and had in fact been attending the school for two years had to be considered in the light of the fact that the original admission had been granted on the basis of incorrect information, provided by her. In providing that information she had assumed the risk that the admission decision might be reviewed once this came to light. Regarding the applicant Hornych, there was a similar anomaly in the information provided by his parents in the context of his application to nursery school. Finally, in relation to the applicant Novotná, the Government argued that attendance at a particular type of nursery school was not in fact a precondition for enrolment in an elementary school using the same teaching methodology. In any event, the non-admission of the child applicants to nursery school had not prevented them from developing social relations in other settings and contexts.",
"209. Relying on the Constitutional Court’s case-law, the Government concluded by submitting that, as an immunisation tool preventing selected diseases, vaccination in general constituted a social benefit calling for shared responsibility on the part of the members of society and for social solidarity from each individual, who assumed a minimum risk in order to protect public health.",
"Submissions of the third-party interveners",
"(a) The Government of France",
"210. The French Government emphasised the importance for States to be able to adopt effective public health policies to combat serious and contagious diseases, as clearly illustrated by the COVID-19 pandemic.",
"211. In France, the law of 30 December 2017 provides for the compulsory vaccination of children aged up to 24 months against eleven diseases. Previously, vaccination was compulsory in relation to three of these diseases; regarding the other eight, it was simply recommended. With one exception, the list of illnesses is identical to that in the Czech Republic. Under French law, persons with a medical contraindication are exempted from the duty. The law of 30 December 2017 increased the potential penalty for a breach by a parent of the child vaccination duty, from a term of imprisonment of up to six months and a fine of up to EUR 3,750 to a term of imprisonment of up to two years and a fine of up to EUR 30,000. Compliance with the vaccination duty is a prerequisite for admission to childcare structures and services as well as to the education system ( collectivité ). In the absence of a required vaccination, a child may be admitted provisionally on condition that they are fully vaccinated within three months. Continued attendance is subject to proving each year that the vaccination duty has been complied with.",
"212. Accepting that compulsory vaccination is an interference with the right to respect for private life, the French Government underlined that it served the legitimate aim of protecting health. The necessity of the interference should be assessed in the light of the States’ positive obligations to protect the life and physical integrity of those within their jurisdiction. The importance of those obligations had recently been emphasised by the Secretary General of the Council of Europe in a document entitled “A toolkit for member states – Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis”. As there were competing Convention rights at stake and no European consensus over compulsory vaccination, the French Government invited the Court to recognise that, in matters of public health policy and the prevention of the spreading of very serious diseases, the States enjoy a wide margin of appreciation, since they were in the best position to assess, in the light of the health situation on their territory and the means at their disposal, the measures necessary to protect public health.",
"213. Compulsory vaccination was justified by the serious adverse public health effects of low vaccination coverage. It was important to protect children from an early age and before the onset of a period of risk. In order to protect the community effectively, a vaccination policy had to apply to the greatest possible number of people. A high rate of vaccination was particularly important to protect those who could not be vaccinated.",
"214. If vaccination were merely voluntary, it was clear that some would seek to benefit from the effect of herd immunity without exposure to the residual risk associated with vaccination. If such behaviour were to become widespread, it would inevitably cause a decrease in vaccination coverage and ultimately the reappearance of pathologies that were thought to be in decline.",
"215. The French Government referred to Recommendation No. 1317 (1997) of the Parliamentary Assembly of the Council of Europe entitled “Vaccination in Europe”, to Article 11 of the European Social Charter (Revised), and to the Recommendation of the Council of the European Union on strengthened cooperation against vaccine-preventable diseases (2018/C 466/01) (see paragraphs 137, 142 and 150 above). The diseases in question were all very serious, and most of them highly contagious. The effectiveness of the compulsory vaccines was recognised, their negative side effects were limited and medical contraindications were taken into account. The interference represented by such a compulsory vaccination scheme with the right to respect for private life was accordingly proportionate to the objective of promoting the degree of vaccination coverage needed to reach the herd immunity threshold for the benefit of the entire population.",
"(b) The Government of Germany",
"216. The German Government clarified that compulsory vaccination referred to a duty to receive vaccination in defined situations, not to the coercive administration of a vaccine. They described the context in which domestic legislation had been adopted after an extensive societal and parliamentary debate, with effect from 1 March 2020, providing for compulsory vaccination against measles. Certain categories of persons are required to provide proof of vaccination, immunity or medical contraindication to vaccination before receiving care or being employed in specified types of facilities, including schools and other educational establishments. The vaccination duty is enforced indirectly by the threat of a penalty of up to EUR 2,500, which may be repeated under certain circumstances, and exclusion from educational institutions. The latter are under a duty to report unvaccinated children to the public health authorities. It is not possible to coerce a person into vaccination; consent is always required. Children under the age of one year are exempted. Other exemptions are based either on purely medical grounds or on the non ‑ availability of a vaccine. There are no exceptions permitted on the basis of religion or belief. Compensation is available for any adverse effects even where the vaccine has been administered in conformity with the applicable rules.",
"217. The German Government observed that compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health. If the vaccination rate is sufficiently high, the threshold for measles being 95% of the population, a given disease can be eliminated. Despite efforts to raise awareness, the rate of voluntary vaccinations achieved in Germany never reached more than 93%. This was the challenge faced by the legislature when adopting the legislation.",
"218. In the interest of achieving the 95% threshold, compulsory vaccination starts at a young age. Moreover, young children are particularly vulnerable to measles, given their immature immune systems. In that context, the German Government referred to the recommendation by the respective body of the Robert Koch Institute, the country’s central scientific institution in the field of biomedicine, to the effect that children should be vaccinated twice against measles before they reach the age of two. Moreover, the German Government considered that the compulsory vaccination scheme was best managed in the context of long ‑ term care such as preschools and nurseries, all the more so in view of the increasing number of children attending such facilities.",
"219. As already established in the relevant Convention case-law, compulsory vaccination constituted an interference with the right to respect for private life, its compatibility with the provisions of Article 8 depending mainly on respect for the principle of proportionality.",
"220. A penalty for disrespecting the vaccination duty and exclusion from educational institutions as a consequence of it constituted a real but merely indirect interference with personal integrity. The interest in protecting public health and above all the health of those who cannot be vaccinated was of fundamental significance. The State had positive obligations under Article 2 of the Convention in that regard. The vaccinated person not only carried the burden of vaccination but also benefited from the protection it procured. The above-mentioned 93% vaccination rate had been achieved voluntarily, showing that vaccination was widely accepted by the population. The reasons for parents not to have their children vaccinated had mostly to do with convenience and carelessness. Such cases were easily addressed by a legal duty of vaccination. This constituted no major interference with individual rights but merely a small individual sacrifice. Only a small proportion of the population opposed vaccination as a matter of principle. Once the 95% threshold was reached, the disease would be eliminated, further vaccination would no longer be necessary and the vaccination duty would become dispensable.",
"221. In any event, the Contracting Parties enjoyed a wide margin of appreciation with regard to their health care systems and policies.",
"(c) The Government of Poland",
"222. The Polish Government submitted that compulsory vaccination schemes did not constitute a violation of the Convention and the sanctions applicable in this context were compatible with the second paragraphs of Articles 8 and 9.",
"223. Consent to medical treatment was vital to the principles of self ‑ determination and personal autonomy. An involuntary medical treatment constituted an interference with physical and moral integrity. Epidemics of infectious diseases might lead to sanitary, social and economic crises. The Contracting Parties were obliged to combat such diseases in humans. Vaccinations were an optimal preventive measure in that they not only reduced the number of those infected but also could lead to a complete elimination of a given illness. By promoting “herd immunity”, they protected not only those vaccinated but also others who could not be vaccinated. The more people were vaccinated, the better the community’s resilience. Vaccinations were therefore primarily addressed to the youngest generation. According to the current state of medical knowledge, there were no better preventive measures. Widespread vaccination was also recommended by the European Centre for Disease Prevention and Control (see paragraph 147 above).",
"224. Vaccinations played an important role in shaping public health. They reduced the social consequences of health complications in connection with infectious diseases, including those related to the costs of the necessary treatment. The compulsory vaccination system thus enabled effective prevention of the spreading of dangerous infectious diseases, striking a balance between the fulfilment of the State’s obligations towards citizens to provide the highest level of public health to as many persons as possible and those of citizens towards the State to comply with the vaccination duty. The cost-effectiveness of vaccinations was also a relevant factor.",
"225. In Poland, a vaccination duty had existed for nearly 60 years as a duty of an administrative nature. It was currently provided for by a statute of 2008, accompanied by a 2011 ordinance of the Minister of Health, adopted on the basis of that statute. In addition, every year the Chief Sanitary Inspector issued Protective Vaccination Programmes addressed to healthcare professionals implementing the compulsory vaccination scheme. Vaccination against eleven diseases currently found on the territory of Europe was compulsory for anyone residing in the Polish Republic. The State Sanitary Inspection was required to enforce compliance with the vaccination duty in relation to children by using administrative powers, the respective regulation and its enforcement never having been challenged. The State was responsible for the safety of the vaccination procedures and it bore the cost of vaccination as well as of the treatment of any possible side ‑ effects. There was also the possibility of opting for commercially obtainable vaccines, the cost of which was not borne by the State.",
"226. As there was a diversity of legal and healthcare systems, it was inevitable that the Contracting Parties resorted to varying solutions to ensure a sufficient level of vaccination, reflecting the social, economic and cultural differences between them and the local conditions, habits and expectations as well as each country’s economic possibilities. In the absence of a pan ‑ European consensus, the Contracting Parties had a wide margin of appreciation to make arrangements to the best of their knowledge and possibilities. The assessment of the specific system of sanctions in each Contracting Party should not lead to the undermining of the compulsory vaccination system in general. The proportionality of the solutions adopted was rather to be assessed on a case-by-case basis.",
"(d) The Government of Slovakia",
"227. The Government of Slovakia noted that the present cases were not about the vaccination duty as such but rather about the consequences of non ‑ compliance with that duty, a distinction that was relevant for the assessment under Article 8 of the Convention.",
"228. Observing that there was no uniform approach among Council of Europe member States, the Government referred to the arrangement in place in Slovakia. There the vaccination duty was laid down in legislation, consisting of an Act of Parliament and an implementing executive decree. The duty applied to everyone, except if there were health contraindications. There was no mechanism for physically enforcing compliance. However, the attending doctor was duty bound to explain to the patient, or to his or her statutory representatives, all relevant aspects and effects of the vaccination to be given. If still not accepted, the doctor had to report the case to the relevant public health authorities, who would summon the person in question for an interview. A persistent refusal to comply could then be seen as a minor offence punishable by a fine of up to EUR 331. The legislation in force did not provide for the exclusion of unvaccinated children from preschool establishments.",
"229. The Government referred to a judgment of 10 December 2014 (case no. PL. US 10/2013), in which the Constitutional Court of Slovakia found the vaccination duty to be constitutional. It considered that the State was under a positive obligation to ensure the protection of public health. The legislature’s decision to comply with that obligation by means of compulsory vaccination was primarily of a political and expert nature falling within a broad margin of appreciation. It could contravene the individual right to protection of health if it were to be administered despite medical contraindications or if any general adverse effects of vaccination were demonstrated. However, such was not the case. Mandatory vaccination set two constitutional principles in opposition with one another: the protection of public health and respect for private life. It was not possible to reconcile both principles without fundamentally limiting one of them. The specific contraindication exemption was accompanied by a duty on the attending doctors to enquire into the existence of any contraindications prior to administering any vaccine. As with regard to any medication, the quality and safety of vaccines were supervised by the State Agency for Drug Control. In addition to healthcare providers, who were under a duty to report any suspicion of serious or unexpected side-effects of vaccines, any patient, or – in the case of child patients – their parents, could do so. Moreover, the legislative framework provided for compensation in respect of damage to health resulting from a vaccination performed contrary to the applicable rules. There were, to the existing level of medical knowledge, no other effective means to reduce or eradicate infectious diseases. The interference represented by compulsory vaccination with an individual’s right to respect for private life was accordingly justified by the interest in the protection of public health that it served. While it was true that some countries provided for compensation also in respect of health damage resulting from a vaccination performed in accordance with the applicable rules, the absence of such a scheme in Slovakia had no impact on the above conclusion.",
"230. The Government added that, specifically with regard to children, the crucial criterion was that of their best interests. This was to be determined by whether or not there was any health contraindication to vaccination. A refusal to vaccinate a child without contraindications could be seen as being contrary to his or her best interests. It was accordingly necessary to ensure compliance with the applicable rules by way of sanctions. It was important to protect children from a young age and especially those who could not be vaccinated on account of contraindications.",
"(e) Společnost pacientů s následky po očkování, z.s. (Association of Patients Injured by Vaccines)",
"231. The intervening association represents patients who suffer from health problems as a result of having been vaccinated. On that basis it described the situations of children who had not been vaccinated at all or were not in full compliance with the applicable vaccination schedule. Those situations mostly involved the children not being admitted to nursery schools, the mother losing her job as she was left with no alternative but to stay at home with her child and the family losing a source of income. Nonetheless, those families would rather change their lifestyle than expose their children to the risks inherent in vaccination.",
"232. The existing system in fact ignored individual needs stemming, for example, from previous adverse effects on the child in question or its relatives. This was partly the result of an insufficient level of independent knowledge of the risks and negative effects of vaccination among paediatricians, whose continuing education was often sponsored by the pharmaceutical industry. Moreover, there was a lack of transparency as to the criteria for and the method of defining the compulsory vaccination schedule at the expert level. This created room for arbitrariness on the part of the executive and gave rise to mistrust and resistance on the part of the public. This in turn called for counter-measures by the proponents of vaccination, with the overall effect of polarising society and stigmatising those opposed to vaccination. Such counter-measures consisted of: (i) enforcing the duty on paediatricians to perform vaccination; (ii) massive media campaigns promoting vaccination, funded by the pharmaceutical industry; (iii) the exercise of judicial power in a manner sympathetic to the vaccination duty, in particular by the Constitutional Court; and (iv) a disinformation campaign by official bodies promoting vaccination.",
"233. The number of compulsory vaccinations and the tight schedule for administering them did not allow in practice for the assessment of any individual needs. For similar reasons, vaccination was also performed in situations in which the patient was not sufficiently healthy to receive it. In addition, in view of the interpretation given in practice to the term “permanent contraindication”, it was not feasible to satisfy this ground for an exemption from the vaccination duty.",
"234. These features of the existing system had an extensive impact on the children concerned and their families. There was a variety of other and strikingly different arrangements at the European level, including in neighbouring countries with an epidemiological situation similar to that in the Czech Republic, where the vaccination system was the strictest. Were the Court to find that the Czech approach was not at odds with Convention requirements, the situation could even worsen and this trend could spread to other jurisdictions. Should the Court find the opposite, the respondent State would be required to limit the power of the executive to define and apply the criteria for and the method for establishing the vaccination schedule and to open this matter to a wider public and political debate.",
"(f) European Centre for Law and Justice (ECLJ)",
"235. In so far as the intervention of the ECLJ concerned Article 8, this third-party intervener pointed to the importance of the present case in that it concerns respect for the physical and moral welfare of the human being, as guaranteed by the principles that such welfare must prevail over the sole interest of society or science and that an intervention in the health field may be carried out only with the free and informed consent of those concerned, as established in Articles 2 and 5 of the Oviedo Convention. It emphasised the need for regulating these matters, in particular in view of the experience of several countries in the 20th century with regard to various policies in the fields of health and eugenics, and considered that in so doing use could be made of the case-law principles stemming from the cases decided by the Court concerning forced sterilisation. The present cases involved a situation of strongly encouraging individuals to submit to the vaccination duty by means of the threat of a sanction. As no forced vaccination had taken place, the principal question was not so much the legitimacy of the vaccination duty but rather of the sanction imposed on the applicants for failing to comply with it.",
"236. The intervener submitted that the physical integrity of a person was covered by the concept of “private life” protected by Article 8 of the Convention and that compulsory vaccination – as an involuntary medical intervention – amounted to an interference with that right. The main problem was the question of the necessity of the measures taken by the authorities in relation to the applicants in support of the vaccination policy.",
"237. In that respect, an adequate approach was to seek to reconcile the competing rights and interests rather than merely to set them against each other. The conciliatory approach involved seeking compromise and applying principles of pluralism and tolerance.",
"238. The intervener noted that in countries such as Austria, Cyprus, Denmark, Estonia, Finland, Germany, Ireland, Lithuania, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom, vaccination was not compulsory. Other countries imposed vaccination in respect of between one (Belgium) and twelve (Latvia) diseases. The usefulness and necessity of compulsory vaccination had not been established.",
"239. Placing emphasis on information and recommendations, combined with more flexible procedures, was an alternative to coercion, and was more respectful of the moral and physical integrity of individuals guaranteed, inter alia, under Article 8 of the Convention.",
"(g) ROZALIO – Rodiče za lepší informovanost a svobodnou volbu v očkování, z.s.",
"240. This third-party intervener submitted the following information, based on its experience. There was an increasing number of parents in the Czech Republic who wished to be informed on matters concerning vaccination, who questioned its necessity and timing and who were conscious of their inalienable right to take informed decisions on all matters concerning their children. The majority of such parents did not oppose vaccination of their children en bloc but rather desired an individual approach. They did not know how to communicate on these matters with doctors and authorities and the State failed to provide adequate sources of relevant information.",
"241. Repressive tools for promoting the vaccination rate were inappropriate because they gave rise to mistrust. Verifiable data showed that an increasing repression level corresponded to a decreasing vaccination rate. A better approach was to promote dialogue with parents on an equal footing.",
"242. The core of the problem was that the PHP Act provided for sanctions on parents who failed to ensure vaccination of their children and excluded such children from public and private preschool facilities, and from further activities such as school trips and retreats.",
"243. As regards the sanctions on the parents, the intervener referred to the secular objection of conscience as defined by the Constitutional Court in the case of Vavřička and developed in its judgment of 22 December 2015 in another case (see paragraphs 28 and 93 above). In that connection, it pointed out that after 2011 minor-offence proceedings were no longer instituted in the event of parents’ failure to have their children vaccinated but that since 2018 such proceedings were again being instituted. However, the administrative bodies involved in such proceedings did not grant the exception provided for by the constitutional case-law in any individual case and no such exceptions were applied with regard to the admission of children lacking any prescribed vaccination to preschool establishments. Furthermore, the statutory exception from the duty on health grounds required a permanent contraindication and doctors generally interpreted that category restrictively.",
"244. The threat of a sanction also applied to preschool establishments if they admitted an unvaccinated child, and the inability to have one’s children admitted to such an establishment resulted in the parents either having to stay and provide for their children at home or to bear the costs of alternative care. The affected parents sometimes organised themselves to provide day-care for their children in informal groups. However, all of this had financial and career implications.",
"245. The intervener then described the legal regime applicable to vaccinations and its functioning in a wider context, its reform, and the consequences of the vaccination duty for various groups of stakeholders. In 2017/18 preschool attendance became mandatory for children aged five (see paragraph 81 above). Those children were no longer obliged to be vaccinated. Nevertheless, there had been no dramatic effects on public health although such children would usually be kept together with younger children whose vaccination remained compulsory. Any consultative processes at the level of the Ministry in connection with the definition of the vaccination schedule were inadequate: a specialised working commission established in 2015 (see paragraph 156 above) had only met five times, had reached no conclusions and had been dormant since 2018.",
"(h) European Forum for Vaccine Vigilance",
"246. This intervener submitted that, in contrast to other areas of societal importance in a democratic society, where opposing views were institutionally represented, there were no trade unions of any specific profession in the area of public health to defend an individual’s health ‑ related choices. While in the area of justice there were rules adopted by the lawmaker and adjusted by the judiciary, there was no equivalent to this in the area of health. Whilst there had traditionally been a doctors’ professional body and an administrative body in charge of matters of health, there was generally no institution representing the patient. The need for representation of the patient in relation to the health authorities was, in France, reflected in the creation of a specific university doctorate for patient ‑ experts.",
"247. However, sworn experts in the area of health in France were appointed by a tribunal and operated in a regime that was open to criticism, inter alia, in view of the scope of their specialisation and expertise. For various reasons, basic, pre-clinical and clinical research in relation to vaccines had a limited potential.",
"248. Moreover, the intervener criticised the use of aluminium-based compounds in the production of vaccines and attributed it to economic considerations on the part of the pharmaceutical industry.",
"249. In addition, the intervener described in detail various physiological aspects of immunity and commented on an individual clinical case of adverse health effects arising from vaccination.",
"250. Public pronouncements by health authorities on the side-effects of vaccines were generally prejudiced and official studies in the area of vaccination would commonly not cite their authors and sources. Yet issues such as the efficiency of booster-vaccination of adults and vaccines administered subcutaneously in general were open to debate.",
"251. Just as there was the premise in dubio pro reo in matters of liability, doubts in the area of vaccination should be interpreted in favour of a free choice by an individual under the principles of primum non nocere and in dubiis abstinere.",
"252. It was common in the healthcare world to confuse the categories of “informed consent” and a “permission to proceed with a specific procedure granted by the patient”. This might be because despite long studies doctors were not trained to transmit scientific and medical information to patients in a language that the latter understood. It was unclear whether the state of the science regarding therapeutic approaches adequately took into account individual’s physiological responses.",
"253. Although the vaccination procedure was intrusive in terms of the law and thus normally subject to the requirement of informed consent, in France it was imposed administratively and not subject to free and informed individual consent.",
"254. There were many reports of serious pathologies which had emerged as a result of a vaccination, such as autism, multiple sclerosis, Guillain-Barré syndrome, macrophage myofasciitis, etc. Some had been demonstrated before the courts in individual cases against pharmaceutical corporations. It was necessary and a matter of scientific and medical responsibility in a democratic society to rule out potential risks by demonstrating that there was no causal link between the pathologies observed after the vaccination and the administration of the vaccine. Failure to do so could not be justified by economic considerations.",
"255. The current understanding of physiology was still in its infancy and vaccination as practiced presently was an archaic procedure which was provided by the laboratories and the institutions above them.",
"256. Many of the illnesses against which vaccination was compulsory did not produce serious consequences and the effect of vaccinating against them was that they would mutate and become more pernicious.",
"257. Lastly, broad immunisation coverage was currently promoted by many governments through an aggressive vaccination policy, although no scientific studies had proven the effectiveness of this approach. On the other hand, some other European countries provided for a free individual choice in the matter. The first imperative step was to ensure that those concerned were amply informed on all relevant aspects of vaccination and it was questionable whether doctors were able to do so. Secondly, there should be a free choice between informed consent and refusal.",
"The Court’s assessment",
"(a) Subject matter of the applications",
"258. The Court notes that the applicants formulated their Article 8 complaints principally with reference to the fine imposed on Mr Vavřička and to the non-admission of the child applicants to nursery school. In other words, it was the consequences of non-compliance with the vaccination duty that was complained of.",
"259. However, in the Court’s opinion, the consequences borne by the applicants cannot be meaningfully dissociated from the underlying duty. On the contrary, they flow immediately and directly from the applicants’ attitude towards it and are therefore intrinsically connected to it.",
"260. In these circumstances, the Court finds that the subject matter of the applicants’ complaints is the vaccination duty and the consequences for them of non-compliance with it.",
"(b) Scope",
"261. It is common ground among the parties that the complaint raised under Article 8 of the Convention relates to the right to respect for the applicants’ private life. The Court agrees, it being well established that a person’s physical integrity forms part of their “private life” within the meaning of this provision of the Convention, which also encompasses, to a certain degree, the right to establish and develop relationships with other human beings (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017, with further references; and also, in relation to vaccination specifically, Boffa and Others, cited above, and Baytüre and Others v. Turkey (dec.), no. 3270/09, 12 March 2013 ).",
"262. While some of the applicants also referred to the right to respect for family life, the Court does not consider it necessary to examine their Article 8 complaints from this additional perspective.",
"(c) Interference",
"263. The Court has established in its case-law that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references). With regard to the present applicants, it is true that, as the Government underlined, none of the contested vaccinations were performed. However, having regard to the subject matter of this case as established above (see paragraph 260), and also to the fact that the child applicants bore the direct consequences of non ‑ compliance with the vaccination duty in that they were not admitted to preschool, the Court is satisfied that, in their regard, there has been an interference with their right to respect for private life.",
"264. As regards Mr Vavřička, while it is the vaccination of his children that is at issue, the Court considers that this does not lead to a different conclusion. It notes that under domestic law he was personally subject to the duty to have his children vaccinated, and that the consequences of non ‑ compliance with it, i.e. the fine, were borne by him directly as the person legally responsible for their well-being. As noted above, in opposing their vaccination, he explained that he was principally motivated by concern for their physical integrity, fearing that vaccination could cause serious damage to their health. In these circumstances, the Court considers that the facts of the case of Mr Vavřička also may be regarded as disclosing an interference with the right to respect for private life, as indeed was accepted by the Government (see Boffa and Others, cited above, p. 34).",
"(d) Justification for the interference",
"265. To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was “in accordance with the law”, pursued one or more of the legitimate aims specified therein, and to that end was “necessary in a democratic society”.",
"(i) In accordance with the law",
"266. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable those to whom it applies to regulate their conduct and, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 167, 15 November 2016, with a further reference).",
"267. The Court notes that the vaccination duty has its specific basis in section 46(1) and (4) of the PHP Act, applied in conjunction with the Ministerial Decree issued by the Ministry in the exercise of the power conferred on it to this end by sections 46(6) and 80(1) of the PHP Act (see paragraphs 11, 13 and 74 above). The consequences of non-compliance with the duty stem, for Mr Vavřička, from the application of section 29(1)(f) and (2) of the MO Act (see paragraphs 17 and 83 above) and, for the child applicants, from the application of section 34(5) of the Education Act, in conjunction with section 50 of the PHP Act (see paragraphs 15, 73 and 81 above). The accessibility and foreseeability of those provisions have not been disputed by the applicants.",
"268. Rather, the applicants’ specific challenge to the lawfulness of the impugned interference rests primarily on their contention, made in reliance on the provisions of Article 4 of the Charter of Fundamental Rights and Freedoms (see paragraph 65 above), that in the given context the term “law” should be understood as referring exclusively to an Act of Parliament, this being how the notion of “law” ( zákon ) is commonly understood at the national level. They take issue with the fact that the Czech vaccination scheme is based on a combination of primary and secondary legislation.",
"269. The Court reiterates that the term “law” as it appears in the phrases “in accordance with the law” and “prescribed by law” in Articles 8 to 11 of the Convention, is to be understood in its “substantive” sense, not its “formal” one. It thus includes, inter alia, “written law”, not limited to primary legislation but including also legal acts and instruments of lesser rank. In sum, the “law” is the provision in force as the competent courts have interpreted it (see, for example, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 83, 14 September 2010, with a further reference).",
"270. Moreover, the Court observes that the constitutionality of the legislative arrangement in question was examined in extenso and upheld by both the SAC and the Constitutional Court (see paragraphs 36, 60, 86 and 91 above).",
"271. The Court is therefore satisfied that the interference in question was in accordance with the law within the meaning of the second paragraph of Article 8 of the Convention.",
"(ii) Legitimate aim",
"272. With regard to the aims pursued by the vaccination duty, as argued by the Government and as recognised by the domestic courts, the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations concerned as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question. This objective corresponds to the aims of the protection of health and the protection of the rights of others, recognised by Article 8.",
"In view of the above, there is no need to decide whether other aims recognised as legitimate under Article 8 § 2 may be of relevance where a State takes measures to guard against major disruptions to society caused by serious disease, namely the interests of public safety, the economic well ‑ being of the country, or the prevention of disorder.",
"(iii) Necessity in a democratic society",
"(α) General principles and margin of appreciation",
"273. The applicable principles may be summarised as follows (see, in particular, Dubská and Krejzová, cited above, §§ 174-8, with further references):",
"- An interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if the reasons adduced by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued.",
"- The Convention system has a fundamentally subsidiary role. The national authorities have direct democratic legitimation in so far as the protection of human rights is concerned and, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions.",
"- It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals’ rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests.",
"- That assessment by the national authorities remains subject to review by the Court, which makes the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention.",
"- A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will also be restricted. Where there is no consensus within the Contracting Parties to the Convention, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider.",
"274. The Court has held that matters of healthcare policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see Hristozov and Others v. Bulgaria (nos. 47039/11 and 358/12, § 119, ECHR 2012 (extracts), with further references).",
"275. Lastly, the Court reiterates that the respondent State’s margin of appreciation will usually be wide if it is required to strike a balance between competing private and public interests or Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I, with further references).",
"(β) The margin of appreciation in the present case",
"276. As the case in hand concerns a compulsory medical intervention, the vaccination duty may be regarded as relating to the individual’s effective enjoyment of intimate rights (see Solomakhin, cited above, § 33). However, the weight of this consideration is lessened by the fact that no vaccinations were administered against the will of the applicants, nor could they have been, as the relevant domestic law does not permit compliance with the duty to be forcibly imposed.",
"277. On the existence of a consensus, the Court discerns two aspects. Firstly, there is a general consensus among the Contracting Parties, strongly supported by the specialised international bodies, that vaccination is one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population (see paragraph 135 above). Accordingly, there is no doubt about the relative importance of the interest at stake.",
"278. Secondly, when it comes to the best means of protecting the interest at stake, the Court notes that there is no consensus over a single model. Rather, there exists, among the Contracting Parties to the Convention, a spectrum of policies on the vaccination of children, ranging from one based wholly on recommendation, through those that make one or more vaccinations compulsory, to those that make it a matter of legal duty to ensure the complete vaccination of children. The Czech Republic has positioned itself at the more prescriptive end of that spectrum, a position supported and shared by three of the intervening Governments (see the submissions of the French, Polish and Slovak authorities at paragraphs 211, 225 and 228 above). The Court notes, moreover, a recent change of policy in several other Contracting Parties, towards a more prescriptive approach due to a decrease in voluntary vaccination and a resulting decrease in herd immunity (see the submissions of the French and German Governments above at paragraphs 211 and 216 above, and also the 2018 judgment of the Italian Constitutional Court, summarised at paragraphs 106-112 above).",
"279. While childhood vaccination, being a fundamental aspect of contemporary public health policy, does not in itself raise sensitive moral or ethical issues, the Court accepts that making vaccination a matter of legal duty can be regarded as so doing, as attested by the examples of constitutional case ‑ law set out above (at paragraphs 95-127). It notes in this regard that the recent change of policy in Germany was preceded by an extensive societal and parliamentary debate on the issue. The Court considers, however, that this acknowledged sensitivity is not limited to the perspective of those disagreeing with the vaccination duty. As submitted by the respondent Government, it should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination (see in this respect Resolution 1845(2011) of the Parliamentary Assembly of the Council of Europe, set out at paragraph 143 above). The Court will return to this question below.",
"280. As reiterated above (see paragraph 274), the Court has previously held that healthcare policy matters come within the margin of appreciation of the national authorities. Having regard to the above considerations and applying its well ‑ established case-law principles, the Court takes the view that in the present case, which specifically concerns the compulsory nature of child vaccination, that margin should be a wide one.",
"(γ) Pressing social need",
"281. Having recognised the importance, generally, of childhood vaccination as a key measure of public health policy, it must next be considered whether the choice of the Czech legislature to make the vaccination of children compulsory can be said to answer to a pressing social need.",
"282. In this respect it is relevant to reiterate that the Contracting States are under a positive obligation, by virtue of the relevant provisions of the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 III; Budayeva and Others v. Russia, nos. 15339/02 and 4 others, §§ 128-130, ECHR 2008 (extracts); Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008, with further references; Hristozov and Others, cited above, §§ 106 and 116; İbrahim Keskin v. Turkey, no. 10491/12, § 62, 27 March 2018; and Kotilainen and Others v. Finland, no. 62439/12, §§ 78 et seq., 17 September 2020). Similar obligations arise under other widely accepted international human rights instruments, further developed in the practice of the competent monitoring bodies (see, regarding the International Covenant on Economic, Social and Cultural Rights, paragraphs 129-131 above; regarding the Convention on the Rights of the Child, paragraphs 132-134 above; and regarding the European Social Charter, paragraphs 137-140 above).",
"283. The Court refers to the expert material submitted by the respondent Government, conveying the firm view of the relevant medical authorities of the Czech Republic that the vaccination of children should remain a matter of legal duty in that country, and underlining the risk to individual and public health to which a possible decline in the rate of vaccination would give rise were it to become a merely recommended procedure (see paragraphs 152-153 above). Concerns at the risk associated with a decrease in vaccine coverage were also expressed by the intervening Governments, with emphasis placed on the importance of ensuring that children are immunised against the diseases in question from an early age (see also the decision of the Italian Constitutional Court at paragraph 107 above). Similar concerns have also been raised at European and international levels (see paragraphs 131, 134, 142, 149 and 151).",
"284. In view of these submissions, and of the clear stance adopted by the expert bodies in this matter, it can be said that in the Czech Republic the vaccination duty represents the answer of the domestic authorities to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children.",
"(δ) Relevant and sufficient reasons",
"285. As regards the reasons put forward for the mandatory nature of vaccination in the Czech Republic, the Court has already acknowledged the weighty public health rationale underlying this policy choice, notably in terms of the efficacy and safety of childhood vaccination. It has likewise acknowledged a general consensus supporting the objective, for every State, to attain the highest possible degree of vaccine coverage. Although the applicants argued that the authorities failed to establish that the duty to accept the prescribed vaccinations was necessary and justified (see paragraph 175 above), the Court considers that the Government have clearly set out the reasons behind this choice. It further notes the conclusion of the Czech Constitutional Court that the relevant data from national and international experts in the matter justified pursuing this policy (see paragraph 91 above). While a system of compulsory vaccinations is not the only, or the most widespread, model adopted by European States, the Court reiterates that, in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs. All of these aspects are relevant in the present context, and they come within the wide margin of appreciation that the Court should accord to the respondent State.",
"286. Furthermore, the subject matter of the case necessarily raises the question of the best interests of children. In this respect the applicants maintained that it must be primarily for the parents to determine how the best interests of the child are to be served and protected, and that State intervention can be accepted only as a last resort in extreme circumstances. The Government submitted that, in the context of health care, the best interest of the child was served by enjoying the highest attainable standard of health.",
"287. It is well established in the Court’s case-law that in all decisions concerning children their best interests are of paramount importance. This reflects the broad consensus on this matter, expressed notably in Article 3 of the UN Convention on the Rights of the Child (see, for example, Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16 ‑ 2018 ‑ 001, French Court of Cassation, § 38, 10 April 2019, with further references; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).",
"288. It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. When it comes to immunisation, the objective should be that every child is protected against serious diseases (see paragraph 133 above). In the great majority of cases, this is achieved by children receiving the full schedule of vaccinations during their early years. Those to whom such treatment cannot be administered are indirectly protected against contagious diseases as long as the requisite level of vaccination coverage is maintained in their community, i.e. their protection comes from herd immunity. Thus, where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g. tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases. The Court understands the health policy of the respondent State to be based on such considerations, in the light of which it can be said to be consistent with the best interests of the children who are its focus (see General comment No. 15 of the United Nations Committee on the Rights of the Child at paragraph 133 above; see also the findings of the Italian Constitutional Court and the judgment of the Court of Appeal of England and Wales in this regard, set out at paragraphs 109 and 128 above).",
"289. The Court therefore accepts that the choice of the Czech legislature to apply a mandatory approach to vaccination is supported by relevant and sufficient reasons. This finding extends to the specific interferences complained of by the applicants, as the administrative sanction imposed on Mr Vavřička and the non-admission of the child applicants to preschool stemmed directly from the application of the statutory framework.",
"(ε) Proportionality",
"290. Finally, the Court must assess the proportionality of the interferences complained of, in light of the aim pursued.",
"291. It will first examine the relevant features of the national system. The vaccination duty concerns nine diseases against which vaccination is considered effective and safe by the scientific community, as is the tenth vaccination, which is given to children with particular health indications (see paragraph 76 above). While the Czech model espouses compulsory vaccination, this is not an absolute duty. An exemption from the duty is permitted notably in respect of children with a permanent contraindication to vaccination. The applicants and two of the intervening third parties were critical of the manner in which this ground is interpreted and applied by the medical profession in the Czech Republic. The Court notes, however, that none of the applicants, either in the domestic proceedings or before this Court, relied on an actual contraindication in relation to any of the vaccinations concerned by their objections. The question of how the exemption is applied in practice is therefore not specifically relevant to their complaints. The Court reiterates that its task is not to review the relevant legislation or practice in the abstract. While it should not overlook the general context, it must as far as possible confine itself to examining the issues raised by the case before it (see, among many other authorities, Paradiso and Campanelli, cited above, § 180). It therefore cannot attach weight to the criticism now levelled at the statutory exemption to the vaccination duty.",
"292. In the respondent State, an exemption may also be permitted on the basis of the Vavřička case-law of the Constitutional Court (see paragraph 28 above), subsequently developed into the right to a “secular objection of conscience” (see paragraph 93 above). Pursuant to domestic law, this exemption relates to both forms of interference at issue in the present case, and, as confirmed by the Government, it may be relied on directly to challenge a fine or a refusal to admit a child to nursery school. The applicants argued that this exemption would almost never be granted in practice, in particular as regards admission to preschool. Here too the Court can only note that the child applicants did not seek to rely on this exemption during the domestic proceedings. As for the applicant Vavřička’s criticism in this respect, the Court will address it in its examination of his complaint under Article 9 (see paragraph 335 below).",
"293. While vaccination is a legal duty in the respondent State, the Court reiterates that compliance with it cannot be directly imposed, in the sense that there is no provision allowing for vaccination to be forcibly administered. In common with the arrangements made in the intervening States, the duty is enforced indirectly through the application of sanctions. In the Czech Republic, the sanction can be regarded as relatively moderate, consisting of an administrative fine that may only be imposed once. In Mr Vavřička’s case, while he argued that the fine was high for him in the circumstances (see paragraph 162 above), the Court notes that the amount was towards the lower end of the relevant scale, and cannot be considered as unduly harsh or onerous.",
"294. Regarding the child applicants, the Court has viewed their non ‑ admission to preschool as an “interference” within the meaning of Article 8 § 2 of the Convention. The applicants perceived it as a form of sanction or penalty on them. However, the Court regards the consequence, which was clearly provided for in primary legislation, of non-compliance with a general legal duty intended to safeguard in particular the health of young children as being essentially protective rather than punitive in nature (see also paragraph 61 above). It will consider the significance of their non ‑ admission when it assesses the intensity of the interference with their right to respect for private life (see paragraphs 306 and 307 below).",
"295. The Court notes the procedural safeguards provided for in domestic law. As shown by the course of the domestic proceedings brought by the applicants, they had at their disposal both administrative appeals as well as judicial remedies before the administrative courts and ultimately the Constitutional Court. It was therefore open to them to contest the consequences of their non-compliance with the vaccination duty. Contrary to the applicants’ criticism of these remedies, the Court observes that the Constitutional Court’s case-law in particular cannot be fairly described as merely formal or as eschewing a substantive review of the vaccination duty from the perspective of fundamental rights. While it was in different and later proceedings that the Constitutional Court directly addressed the compatibility with the Constitution of the vaccination duty (see paragraph 93 above), finding that the public interest at stake outweighed the objections of the plaintiffs in those proceedings, its reasoning in the proceedings brought by Mr Vavřička, recognising a constitutional exception to the general duty, must be regarded as a meaningful safeguard. Likewise, in the proceedings brought by Ms Novotná, the Constitutional Court held that in order to effectively protect fundamental rights which conflicted with the public interest, the circumstances of each individual case were to be rigorously assessed. The fact that neither applicant was ultimately successful in their constitutional action does not diminish the significance of this jurisprudential safeguard of fundamental rights.",
"296. Turning now to the applicants’ opposition to the policy of the compulsory vaccination of children, the Court observes that at the heart of their complaint lies a twofold objection. In the first place, they criticised the institutional arrangements in place in the Czech Republic in this area, contending that the discretion granted to the health authorities was excessive and that there were conflicts of interest and a deficit of transparency and public debate. The Court is not persuaded by this criticism. Regarding the scope left to the executive to devise and implement health policy, the Court has already found that no issue of quality of law arises (see paragraphs 267 et seq. above). Moreover it finds pertinent the observation of the SAC that the legislative approach employed makes it possible for the authorities to react with flexibility to the epidemiological situation and to developments in medical science and pharmacology (see paragraph 87 above; see also the remarks of the Italian Constitutional Court at paragraph 107 above). In addition, the domestic system is, as noted above, attended by significant procedural safeguards.",
"297. As for the integrity of the policy-making process, the Court notes that in reply to the applicants’ claim about conflicts of interest the Government have explained the procedure followed by the NIC, in accordance with relevant European and international standards (see paragraph 200 above). In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations.",
"298. With respect to the transparency of the domestic system and the extent to which the authorities invite public discussion, the Court notes that a degree of transparency is achieved in this respect through the publication of the minutes of the meetings of the NIC on the website of the Ministry of Health (see paragraph 154 above). As for public participation, the Government submitted that the exclusively expert composition of the NIC was in line with the practice of many European States. The Court notes the initiative taken in 2015 to set up a platform for public discussion of vaccination policy, bringing together medical experts and civil society (see paragraph 156 above), although the applicants and the intervenor ROZALIO indicated that its meetings were few and had ceased by 2018. It cannot be said that the arrangements in force, under which policy is entrusted to an expert body operating under the aegis of the Ministry of Health, in accordance with the model chosen by the legislature and ultimately accountable to it, suffer from a serious deficit of transparency such as to call into question the validity of the vaccination policy followed by the Czech Republic.",
"299. In addition to their submissions regarding the institutional aspects of the domestic system, the applicants also take issue with the effectiveness and safety of vaccinations, expressing strong concern with regard to the potential adverse effects on health, including in the long term. The Court notes first of all the Government’s explanation that under the domestic system a certain leeway is allowed regarding the choice of vaccine, although only the standard vaccines are free of charge, the cost of other products resting with the parents. Some leeway regarding the vaccination timetable is also permitted, as long as the child is fully immunised by the relevant age (see paragraphs 76 and 203 above).",
"300. As for the effectiveness of vaccination, the Court refers once again to the general consensus over the vital importance of this means of protecting populations against diseases that may have severe effects on individual health, and that, in the case of serious outbreaks, may cause disruption to society (see paragraph 135 above).",
"301. With regard to safety, it is not disputed that although entirely safe for the great majority of recipients, in rare cases vaccination may prove to be harmful to an individual, causing serious and lasting damage to his or her health. Complaints in relation to such situations have been the subject of previous proceedings under the Convention (see, in particular, Association of Parents v. the United Kingdom, no. 7154/75, Commission decision of 12 July 1978, DR 14, p. 31; and Baytüre and Others, cited above, § 28). At the oral hearing in the present case, the Government indicated that out of approximately 100,000 children vaccinated annually in the Czech Republic (representing 300,000 vaccinations), the number of cases of serious, potentially lifelong, damage to health stood at five or six. In view of this very rare but undoubtedly very serious risk to the health of an individual, the Convention organs have stressed the importance of taking the necessary precautions before vaccination (see Solomakhin, cited above, § 36; Baytüre and Others, cited above, § 29, and Association of Parents, cited above, pp. 33-34). This evidently refers to checking in each individual case for possible contraindications. It also refers to monitoring the safety of the vaccines in use. In each of these respects the Court sees no reason to question the adequacy of the domestic system. Vaccination is performed by medical professionals only if there is no contraindication, which is checked beforehand as a matter of routine protocol. Vaccines are subject to registration by the State Agency for Drug Control, with all healthcare professionals concerned being under a specific duty to report any suspicion of serious or unexpected side-effects (see paragraphs 78 and 79 above). Accordingly, the safety of the vaccines in use remains under continuous monitoring by the competent authorities.",
"302. Turning to the question of the availability of compensation on a no ‑ fault or strict liability basis for injury to health caused by vaccination, which was also raised by the applicants, the Court recalls that it has previously examined a case in which the issue of compensation for damage to health caused by vaccination arose, although the vaccine in question was one that was recommended rather than compulsory in the country concerned (see Baytüre and Others, cited above, §§ 28-30). The Court observes, as a general proposition, that the availability of compensation in case of injury to health is indeed relevant to the overall assessment of a system of compulsory vaccination, and it refers in this respect to the obiter dictum of the Czech Constitutional Court (see paragraph 90 above). The same issue has been raised by other constitutional courts (see the example of the relevant Italian case-law at paragraphs 111, 113, 114 and 115 above, and the Slovenian case-law at paragraph 127 above). However, in the context of the present applications, the issue cannot be given any decisive significance. As previously observed, no vaccine was administered contrary to the will or wishes of any of the applicants. For most of them, the facts occurred at a time when compensation was available under the 1964 Civil Code (i.e. before 31 December 2013). Moreover, in none of the domestic proceedings brought by the various applicants was the issue of compensation specifically raised. The dictum of the Constitutional Court came in the context of proceedings brought by other parties, who expressly included among the grounds advanced the question of compensation. The Court deduces from this that the issue was not actually relevant to the present applicants’ refusal of the vaccination duty, which stemmed instead from the concerns noted above.",
"303. The Court must furthermore consider the intensity of the impugned interferences with the applicants’ enjoyment of their right to respect for private life.",
"304. Regarding the first applicant, the Court has already found that the administrative fine imposed on him was not excessive in the circumstances (see paragraph 293 above). The Court notes that there were no repercussions for the education of this applicant’s children, who were already teenagers when the sanction was applied to him.",
"305. With respect to the remaining applicants, their enrolment in preschool was either denied or revoked for lack of the required vaccinations. While the applicants and some of the intervening associations complained about the impact of this on the organisation of family life, notably in financial and career terms, the Court reiterates that the personal scope of the case, examined under the private life head of Article 8, is limited to the applicants themselves and the repercussions for them of the contested measures.",
"306. The Court accepts that the exclusion of the applicants from preschool meant the loss of an important opportunity for these young children to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment. However, that was the direct consequence of the choice made by their respective parents to decline to comply with a legal duty, the purpose of which is to protect health, in particular in that age group. As stated by the respondent Government, and by some of the intervening Governments, who rely on extensive scientific evidence (see paragraphs 213, 218 and 223 above), early childhood is the optimum time for vaccination. Moreover, the possibility of attendance at preschool of children who cannot be vaccinated for medical reasons depends on a very high rate of vaccination among other children against contagious diseases. The Court considers that it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination. In the view of the Court, it was validly and legitimately open to the Czech legislature to make this choice, which is fully consistent with the rationale of protecting the health of the population. The notional availability of less intrusive means to achieve this purpose, as suggested by the applicants, does not detract from this finding.",
"307. The Court would further observe that, while not underestimating the educational opportunity foregone by the child applicants, they were not deprived of all possibility of personal, social and intellectual development, even at the cost of additional, and perhaps considerable, effort and expense on the part of their parents. Moreover, the effects on the child applicants were limited in time. Upon reaching the age of mandatory school attendance, their admission to primary school was not affected by their vaccination status (see paragraph 82 above). As for the specific wish of the applicant Novotná to be educated in accordance with a particular pedagogical philosophy, she did not contradict the Government’s statement that she would have remained eligible for such schooling notwithstanding her non-attendance at preschool level.",
"308. Lastly, the applicants argued that the system was incoherent, in that while small children were required to be vaccinated, this did not apply to those employed in preschools. The Court notes, however, the Government’s reply that the general vaccination duty, which consists of initial vaccinations as well as booster vaccinations, applies to everyone residing in the Czech Republic permanently or on a long-term basis (see paragraphs 11 and 77 above), so that the staff members concerned should normally have received all the prescribed vaccinations at the relevant time, as required by law.",
"309. For these reasons, the Court considers that the measures complained of by the applicants, assessed in the context of the domestic system, stand in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State through the vaccination duty.",
"(στ) Conclusion",
"310. The Court would clarify that, ultimately, the issue to be determined is not whether a different, less prescriptive policy might have been adopted, as has been done in some other European States. Rather, it is whether, in striking the particular balance that they did, the Czech authorities remained within their wide margin of appreciation in this area. It is the Court’s conclusion that they did not exceed their margin of appreciation and so the impugned measures can be regarded as being “necessary in a democratic society”.",
"311. Accordingly, there has been no violation of Article 8 of the Convention.",
"312. In view of this conclusion, there is no need to examine the Government’s non-exhaustion objection in relation to the Article 8 complaints of the applicants Brožík and Dubský (see paragraphs 169 and 170 above).",
"ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION",
"313. The applicants Vavřička, Novotná and Hornych also complained that the fine imposed on Mr Vavřička and the non-admission of Ms Novotná and Mr Hornych to nursery school was contrary to their rights under Article 9 of the Convention, which provides:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"The parties’ submissionsThe Government",
"The Government",
"The Government",
"314. The Government considered that the complaints made in reliance on Article 9 were essentially a restatement of those made under Article 8 and that they should be examined under the latter provision only. As regards Article 9, they argued mainly that the complaints were incompatible ratione materiae with that provision, or in any event manifestly ill-founded on account of a lack of any interference with the applicants’ Article 9 rights.",
"315. Personal views on compulsory vaccination based on wholly subjective assumptions about its necessity and suitability did not constitute a “belief” within the meaning of Article 9 of the Convention. That provision essentially aimed to protect religions or theories about philosophical or ideological universal values. Lacking sufficient specification and substantiation, the views professed by the applicants did not constitute a coherent view on a fundamental problem and accordingly did not amount to a manifestation of personal beliefs in the sense of Article 9 of the Convention.",
"316. The Government submitted that there was no clear line in the existing case-law as to what beliefs were or were not regarded as a “religion or beliefs” within the meaning of Article 9 § 2 of the Convention. Even if that provision were in principle to apply to a situation such as that which obtains in the present case, on the specific facts there had been no interference with the applicants’ rights protected by it. This was because, as the domestic courts had established, the applicants had failed to substantiate their objection to the vaccination duty by giving relevant and sufficient reasons. Moreover, the views of the applicants Vavřička and Novotná had not been consistent and so had not been convincing. Mr Vavřička had accepted the vaccination of his children against some diseases. The same was true for Ms Novotná.",
"317. Furthermore, although Mr Hornych had claimed before the Court that in his case there had been a medical contraindication to vaccination, in the formulation of his complaints he referred to his parents’ philosophical convictions. Yet his argumentation at the national level had been specifically health related. His complaint before the Court was accordingly inadmissible for non-exhaustion of domestic remedies or, as the case may be, as manifestly ill-founded.",
"318. In addition, to the extent the applicant Novotná relied in her Article 9 complaint on the views and convictions of her parents, such complaint was incompatible ratione personae with that provision. Moreover, in view of their age and maturity at the relevant time, neither she nor the applicant Hornych could have held any views on the subject of sufficient cogency, seriousness, cohesion and importance to come within the ambit of Article 9.",
"319. The measures complained of had been the result of the application of general and neutrally formulated legislation which applied to all persons regardless of their thought, conscience or religion. Under the Convention case-law, such legislation could not, in principle, interfere with the rights protected under Article 9.",
"320. Moreover, the Government’s objection under Article 35 § 3 (b) of the Convention in relation to the application of Mr Vavřička (see paragraph 161 above) extended also to his complaint under Article 9.",
"The applicants",
"321. The applicant Vavřička submitted that his main motivation had been to protect the health of his children. Being convinced that vaccination caused health damage, his conscience would not allow him to have them vaccinated.",
"322. The applicants Novotná and Hornych relied on a right to parental care in conformity with parental conscience. On the basis of this, it was their parents who had held views protected under Article 9 of the Convention on the applicants’ behalf since at the relevant time, in view of their age, the applicants could not themselves have had any attitude towards vaccination.",
"323. As regards the consistency of the views asserted under Article 9, the applicants argued that under the Constitutional Court’s jurisprudence what was essential was that the views be constant throughout the proceedings in question. Yet a development of those views prior to or after those proceedings was no impediment to the applicability of the “secular objection of conscience”, as specified by the Constitutional Court.",
"324. Lastly, the reply of Mr Vavřička to the Government’s objection based on Article 35 § 3 (b) of the Convention extended also to his complaint under Article 9 (see paragraph 162 above).",
"Submissions of the third-party intervenersThe Government of France",
"The Government of France",
"The Government of France",
"325. The French Government invited the Court to uphold the existing case-law that a neutral statutory duty applicable to everyone regardless of their thought, conscience or religion could not, in principle, interfere with the rights protected by Article 9. However, even if the duty were to be regarded as an interference, for the reasons already set out above it should be accepted as compatible with the requirements of that provision.",
"The Government of Germany",
"326. The German Government considered it open to doubt whether compulsory vaccination or measures for its enforcement amounted to an interference with the rights protected under Article 9. Not all opinions or convictions constituted beliefs protected by that provision, and the position of the person opposing vaccination would mostly not attain the level of cogency, seriousness, coherence and importance for its applicability.",
"European Centre for Law and Justice",
"327. This intervener contested the premise adopted by the Commission in Boffa and Others (cited above) as regards the applicability of Article 9 of the Convention to an individual’s reason for opposing a neutral statutory duty applicable to everyone and proposed a different approach. In the ECLJ’s view, the quality of the conviction invoked as well as of the objection based on it should be examined in order to determine which objections warranted respect in a democratic society and which constituted merely a matter of personal convenience that would fall rather within the ambit of Article 8 of the Convention. In determining the quality of the conviction, the questions to be asked were as follows – Is it “sincere” or, depending on the terminology, does it correspond to a “deeply and genuinely held religious or other belief”? Can the content of the conviction be identified and is it substantial? If the conviction is of a religious nature, does it concern a known religion? If the conviction is not of a religious nature, does it warrant respect in a democratic society and does it not offend human dignity? As to the quality of the objection, the intervener argued that it had itself to be a conviction attaining sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. An objection only on an intermittent or opportunistic basis would not enjoy the protection of that provision. The objector had to be coherent and the objection had to be motivated by a serious and insurmountable conflict between the obligation objected to and the objector’s conscience or convictions and to rest not on reasons of personal benefit or convenience but on genuinely held religious convictions. As regards moral convictions, as distinct from religious convictions, the respect they deserved depended more directly on the nature of the conviction, since objections based on a moral conviction called into question the very justice of the order objected to, whereas objections based on a religious conviction simply tested the tolerance of society. Objections based on moral convictions were to be examined with great care because, if accepted by society, they afforded the objector immunity both from the duty objected to and from sanctions for having disrespected it. Society had acknowledged the legitimacy of such moral objections only in a very few cases, usually in situations where it tolerated an evil because it was considered necessary or inevitable, such as war, abortion or prostitution.",
"328. In order to determine whether a conscientious objection of a moral nature was genuinely based on moral convictions and rested on a need for justice, four criteria should apply: the objection had to be aimed at respect for the just and the good; the rule objected to had to derogate from a fundamental right or principle; it had to be possible to generalise the objection as being available to everyone; and the objection had to concern an ethically sensitive issue.",
"329. Where the refusal was motivated by a genuine belief within the meaning of Article 9, and accordingly deserved the respect of society, but without being acknowledged as a requirement of justice, the existence of a sanction was not in itself sufficient to constitute a breach of Article 9. What needed to be examined then was the necessity of the sanction imposed in a given case, which was not different from the examination carried out under Article 8. The difference between the two provisions lay in the fact that Article 9 protected personal conscience, which was linked to the perception of what was just and good, while Article 8 protected only “individual autonomy”, which was independent of it.",
"The Court’s assessment",
"330. The three applicants have sought to invoke the protection of Article 9 for their critical stance towards vaccination. There is no suggestion on the part of any of them that their stance on this matter is religiously inspired. It is therefore not their religious freedom that is potentially at stake, but their freedom of thought and conscience.",
"331. The applicability of Article 9 to this particular conviction has not previously been examined by the Court. It was briefly considered by the Commission in Boffa and Others (cited above). In its decision, in so far as relevant, the Commission held that, in protecting the sphere of personal beliefs, Article 9 did not always guarantee the right to behave in the public sphere in a way which was dictated by such beliefs and noted that the term “practice” did not cover each and every act which was motivated or influenced by a belief. It further noted that the obligation to be vaccinated, as laid down in the legislation at issue in that case, applied to everyone, whatever their religion or personal creed. Consequently, it considered that there had been no interference with the freedom protected by Article 9 of the Convention.",
"332. The Court finds it relevant to refer to its reasoning in the case of Bayatyan v. Armenia ([GC], no. 23459/03, § 110, ECHR 2011, with further references), in which it considered the applicability of Article 9 to the conscientious objection of the applicant, on religious grounds, to military service. It held that “opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.” It further held that whether and to what extent such objection came within the ambit of Article 9 must be assessed in the light of the particular circumstances of the case (ibid.).",
"333. The Court would also point to its reasoning in the case of Pretty v. the United Kingdom (no. 2346/02, §§ 82-3, ECHR 2002 ‑ III), in which it did not doubt the firmness of that applicant’s views concerning assisted suicide, but observed that not all opinions or convictions constitute beliefs in the sense protected by Article 9.",
"334. As regards the applicant Vavřička, the Court notes that in its first ruling on his case, the Constitutional Court held that there must be the possibility of an exceptional waiver of the penalty for non-compliance with the vaccination duty where the circumstances call in a fundamental manner for respecting the autonomy of the individual. It underlined the importance of the consistency and credibility of the person’s claims in this regard, and remarked on the lack of consistency on Mr Vavřička’s part in the proceedings until that stage, who had submitted to that court that his objection to vaccination was primarily health-related; philosophical or religious aspects were secondary (see paragraph 29 above). In the subsequent proceedings, it was found by the SAC that the reasons of conscience given by Mr Vavřička had been brought forward only at a late stage and that he had failed to advance any concrete argument concerning his beliefs and the intensity of the interference with them caused by vaccination.",
"335. The applicant complained that his conscientious stance had been assessed negatively in accordance with a standard that had been developed only at a late stage in the domestic proceedings. The Court considers, on the contrary, that the approach of the domestic courts was reasonable and indeed in keeping with its own interpretation of Article 9, which has been set out above. Having regard to the conclusions reached by the domestic courts in this regard, and considering that the applicant has not further specified or substantiated his complaint under Article 9 in the present proceedings, the Court finds that his critical opinion on vaccination is not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.",
"336. The same applies, a fortiori, to the complaints of the applicants Novotná and Hornych, neither of whom even presented such arguments in the domestic proceedings (see paragraphs 37, 45 and 46 above).",
"337. The Court therefore finds that these complaints are incompatible ratione materiae with the provisions of Article 9 of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.",
"338. This finding makes it unnecessary to address the Government’s other inadmissibility objections.",
"ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 The parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"339. The child applicants further complained that the refusal of admission to nursery school was contrary to their rights under Article 2 of Protocol No. 1.",
"340. The Government submitted that the complaints fell to be examined under the first sentence of that Article. In so far as the applicants complained of any repercussions on their parents, such complaints were incompatible ratione personae with this provision. Moreover, and in any event, the complaints were incompatible ratione materiae since Article 2 did not apply to preschool education. In addition, in so far as the complaint was brought by the applicants Brožík and Dubský, it was also subject to the Government’s objection of non ‑ exhaustion of domestic remedies (see paragraph 165 above).",
"341. The applicants Brožík and Dubský replied to the said objection as indicated above (see paragraph 166 above). Other than that, all of the applicants did no more than reiterate their complaints, referring in particular to the constitutional judgment of 27 January 2015, recognising that the right to education, within the meaning of Article 33 of the Charter of Fundamental Rights and Freedoms, concerned all types and levels of education, including preschool education (see paragraph 62 above).",
"Submissions of the third-party interveners",
"342. The Government of Germany noted that the exclusion of non ‑ vaccinated children from nursery schools might amount to an interference with their right to education, although it was not clear from the relevant case-law that this level of education was covered by Article 2 of Protocol No. 1. Even if that provision were held to be applicable, the low education level should be taken into account in assessing the proportionality of the restriction.",
"343. The Government of Slovakia pointed out that the right to education was not absolute and argued that the existing Convention case-law did not specifically acknowledge its applicability to preschool establishments such as kindergartens.",
"344. The Government of France commented that the non ‑ admission of an unvaccinated child to school was a justified restriction of the right to education.",
"The Court’s assessment",
"345. In light of the scope of its examination and findings as regards the child applicants’ complaints under Article 8 of the Convention, the Court finds that there is no need to examine their applications separately under Article 2 of Protocol No. 1.",
"OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"346. Lastly, some of the applicants also complained of a violation of Articles 2, 6, 13 and 14 of the Convention.",
"347. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.",
"Accordingly, the remainder of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention."
] |
14 | Osman v. Denmark | 14 June 2011 | At the age of fifteen the applicant, a Somali national who had been living with her parents and siblings in Denmark since the age of seven, was sent against her will to a refugee camp in Kenya by her father to take care of her paternal grandmother. Two years later, when still a minor, she applied to be reunited with her family in Denmark, but her application was turned down by Danish immigration on the grounds that her residence permit had lapsed as she had been absent from Denmark for more than twelve consecutive months. She was not entitled to a new residence permit as, following a change in the law that had been introduced to deter immigrant parents from sending their adolescent children to their countries of origin to receive a more traditional upbringing, only children below the age of fifteen could apply for family reunification. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding in particular that the applicant could be considered a settled migrant who had lawfully spent all or the major part of her childhood and youth in the host country so that very serious reasons would be required to justify the refusal to renew her residence permit. Although the aim pursued by the law on which that refusal was based was legitimate – discouraging immigrant parents from sending their children to their countries of origin to be “re-educated” in a manner their parents considered more consistent with their ethnic origins – the children’s right to respect for private and family life could not be ignored. In the circumstances of the case, it could not be said that the applicant’s interests had been sufficiently taken into account or balanced fairly against the State’s interest in controlling immigration. | Children’s rights | Family reunification rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in Somalia on 1 November 1987 as the youngest of five siblings. Currently she lives in Esbjerg.",
"7. From 1991 to 1995 the applicant lived with her family in Kenya.",
"8. In April 1994 the applicant ’ s father and a sister were granted asylum in Denmark.",
"9. Having been granted a residence permit in November 1994, on 11 February 1995 the applicant, who at the relevant time was seven years old, her mother and three siblings joined them. A few years later, the applicant ’ s parents divorced. The parents maintained joint custody of the applicant, who lived with her mother. From 1995 until August 2002, the applicant attended various schools, some of which expelled her due to disciplinary problems.",
"10. The applicant also had difficulties with her parents, who disapproved of certain aspects of her behaviour. Consequently, in May 2003, when the applicant was fifteen years old, her father decided to take her to Kenya to take care of her paternal grandmother, who was living at the Hagadera refugee camp in north ‑ eastern Kenya. It appears that the applicant ’ s mother did not want her to go but reluctantly agreed on the understanding that it would be a short trip. It also appears that the applicant believed that she was going on a short trip to visit her grandmother.",
"11. When the applicant ’ s father returned to Denmark, he was summoned for an interview with the Immigration Service on 10 November 2003 because the latter had been informed that he, who had been recognised as a refugee, had visited his country of origin. On 17 December 2003 the Immigration Service ( Udlændingeservice ) took the stand that the applicant ’ s father ’ s residence permit had not lapsed. In that connection, the applicant ’ s father was advised on the regulation regarding lapse of residence permits.",
"12. On 9 August 2005, three months before the applicant turned eighteen years old, she contacted the Danish Embassy in Nairobi with a view to returning to live with her mother and siblings in Denmark. Her father had joined her in Nairobi to help her submit the application for family reunification. He also remarried in Nairobi at the relevant time. An interview was conducted with the help of an English/Somali interpreter although it was stated that the applicant spoke Danish. The applicant explained that she had taken care of her grandmother, who had fallen seriously ill, until some of the grandmother ’ s children had arrived from Somalia to take over the care of their mother.",
"13. In a letter of 24 November 2005 to the Immigration Service the applicant ’ s mother stated, inter alia, that at the relevant time it had been decided temporarily to send the applicant to Kenya where the family had a network so that she could attend school and that the applicant had been living with her father ’ s friends.",
"14. On 21 December 2006 the Immigration Service found that the applicant ’ s residence permit had lapsed pursuant to section 17 of the Aliens Act because she had been absent from Denmark for more than twelve consecutive months; because she had not contacted the Immigration Service until August 2005; and because there was no information indicating that she could not have contacted the authorities in due time. They also considered that the applicant was not entitled to a new residence permit under section 9, subsection 1 (ii), of the Aliens Act, in force at the relevant time, since the applicant was 17 years old and the said provision only extended a right to family reunification to children below the age of 15. Finally, it found that no special circumstances existed to grant her a residence permit under section 9 c, subsection 1, of the Aliens Act. It noted in that connection that the applicant had not seen her mother for four years; that it had been the latter ’ s voluntary decision to send the applicant to Kenya; that she could still enjoy family life with her mother to the same extent as before; that she had stayed with the grandmother; and that except for the grandmother ’ s age, there was no information that the applicant could not continue to live with her or the grandmother ’ s children.",
"15. On 11 April 2007 the applicant appealed against the decision and maintained that it had not been her decision to leave the country; that from the refugee camp where she lived with her grandmother she was not able herself to go to Nairobi; and that during her stay outside Denmark she had not stayed in her country of origin.",
"16. According to the applicant, in June 2007 she re-entered Denmark clandestinely to live with her mother. It is disputed whether the Danish authorities were aware of this.",
"17. On 13 July 2007 the Immigration Service received a questionnaire from the applicant dated 12 July 2007 used for requests for exemption from the authorities revoking a residence permit despite a stay outside Denmark for a certain period. It was partly filled out and stated, inter alia, that it had been the applicant ’ s parents ’ decision that she should leave Denmark at the relevant time; that the applicant spoke Danish, but could not read or write the language; that she spoke the language of the country in which she was currently residing, but that she could not read or write that language either; and that she was very afraid and could not reside in her country of origin as there was unrest. The applicant did not specify that she had actually returned to Denmark, but her signature was dated as set out above in Esbjerg, Denmark. It was also stated that her sister had assisted her in answering the questionnaire.",
"18. On 1 October 2007 the Ministry of Refugee, Immigration and Integration Affairs ( Ministeriet for flygtninge, indvandrere og integration ) upheld the decision by the Migration Service of 21 December 2006. It stated among other things:",
"“ ... The Ministry emphasises that there is no information available of any circumstances that would lead to [the applicant ’ s] residence permit being deemed not to have lapsed ... [the applicant ’ s] parents did not apply for retention of [her] residence permit before she left, and neither she nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Thus, the Ministry finds that the illness of [the applicant ’ s] grandmother did not prevent [the applicant] or her parents from contacting the immigration authorities.",
"Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant ’ s] parents from contacting the immigration authorities before [the applicant ’ s] departure, which was planned.",
"The fact that [the applicant] stayed in Kenya and not in Somalia does not change the fact that [she] has resided abroad for more than twelve consecutive months.",
"It is stated for the record that it was not [the applicant ’ s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant ’ s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances ... ”",
"19. Upon request from the applicant, who was represented by counsel, on 11 December 2007 the Immigration Service brought the case concerning section 17 and section 9, subsection 1 (ii), of the Aliens Act before the City Court of Copenhagen ( Københavns Byret ), before which the case was decided on the documents submitted, without any parties being summoned. On 25 April 2008 it found against the applicant. It added that section 9, subsection 1 (ii), of the Aliens Act had been amended, limiting the right to family re-unification to children under 15 years instead of under 18 years in order to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins. It was preferable in the legislator ’ s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark. It found that such decision did not contravene Article 8 of the Convention as invoked by the applicant.",
"20. The decision was appealed against to the High Court of Eastern Denmark ( Østre Landsret ), henceforth the High Court, before which the applicant ’ s representative in his written submissions stated that the applicant remained in Kenya. On 30 October 2008 the High Court upheld the City Court ’ s decision. By way of introduction, it stated that according to section 52 of the Aliens Act, it could not review a final administrative decision of refusal of a residence permit under section 9c, subsection 1, of the Aliens Act. As to section 9, subsection 1 (ii) it confirmed that the applicant failed to fulfil the conditions. It took into account that the applicant ’ s parents had sent her voluntarily to Kenya to live with family for an indefinite period; that the applicant was seventeen years and nine months old, when in August 2005 she applied to re- enter Denmark; that her father visited her during her stay in Kenya; and that her mother would also be able to visit the applicant in Kenya to enjoy family life there.",
"21. Leave to appeal to the Supreme Court ( Højesteret ) was refused on 19 January 2008.",
"22. By letter of 27 January 2010 the Ministry of Refugee, Immigration and Integration Affairs advised the applicant of her duty to leave Denmark pursuant to section 30 of the Alien ’ s Act and the possibility of submitting an application for asylum under section 7 of the Aliens Act. The applicant was also advised that an application should be submitted in person to the Immigration Service or the police.",
"23. So far the applicant has not applied for asylum."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"24. Article 63 of the Constitution read as follows:",
"The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts.",
"25. Applications for asylum are determined in the first instance by the Immigration Service and in the second instance by the Refugee Appeals Board under the Aliens Act ( Udlændingeloven ), the relevant provisions of which at the relevant time read as follows",
"Section 7",
"1. Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951).",
"2. Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin. An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection 1.",
"3. A residence permit under subsections 1 and 2 can be refused if the alien has already obtained protection in another country, or if the alien has close ties with another country where the alien must be deemed to be able to obtain protection.",
"Section 8",
"1. Upon application, a residence permit will be issued to an alien who arrives in Denmark under an agreement made with the United Nations High Commissioner for Refugees or similar international agreement, and who falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951), see section 7(1).",
"2. In addition to the cases mentioned in subsection 1, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin, see section 7 subsection 2.",
"3. In addition to the cases mentioned in subsections 1 and 2, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who would presumably have satisfied the fundamental conditions for obtaining a residence permit under one of the provisions of the Aliens Act if he had entered Denmark as an asylum-seeker.",
"4. In the selection of aliens issued with a residence permit under subsections 1 to 3, the aliens ’ possibilities of establishing roots in Denmark and benefiting from the residence permit, including their language qualifications, education and training, work experience, family situation, network, age and motivation, must be emphasised unless particular reasons make it inappropriate.",
"5. Unless particular reasons make it inappropriate, it must be made a condition for a residence permit under subsections 1 to 3 that the alien assists in a special health examination and consents to the health information being transmitted to the Danish Immigration Service and the local council of the municipality to which the alien is allocated, and signs a declaration concerning the conditions for resettlement in Denmark.",
"6. The Minister of Refugee, Immigration and Integration Affairs decides the overall distribution of the aliens to be issued with a residence permit under subsections 1 to 3.",
"26. Before 1 July 2004 section 9, subsection 1 (ii) had the following wording :",
"Section 9",
"1. Upon application, a residence permit may be issued to: -",
"( i ) ....",
"(ii) an unmarried child of a person permanently resident in Denmark or of that person ’ s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark;",
"27. As from 1 July 2004 section 9 had the following wording :",
"Section 9",
"1. Upon application, a residence permit may be issued to: -",
"( i ) ....",
"(ii) an unmarried child under the age of 15 of a person permanently resident in Denmark or of that person ’ s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark:",
"a. is a Danish national;",
"b. is a national of one of the other Nordic countries;",
"c. is issued with a residence permit under section 7 or 8; or",
"d. is issued with a permanent residence permit or a residence permit with a possibility of permanent residence.",
"(iii) ...",
"28. The age limit referred to in section 9, subsection (ii) was reduced from 18 to 15 years old by Act no. 427 of 9 June 2004. The amendment entered into force on 1 July 2004. The following appears from the explanatory notes:",
"“It has turned out that some parents living in Denmark send their children back to the parents ’ country of origin or a neighbouring country on so-called “re-education journeys” to allow them to be brought up there and be influenced by the values and norms of that county. This particularly occurs in situations where the child has social problems in Denmark. Moreover, there are examples of parents who consciously choose to let a child remain in his or her country of origin, either together with one of the parents or with other family members, until the child is nearly grown up, although the child could have had a residence permit in Denmark earlier. The result of this is that the child grows up in accordance with the culture and customs of its country of origin and is not influenced by Danish norms and values during its childhood. In the Government ’ s view, under-age aliens who will live in Denmark should come to Denmark as early as possible and spend the longest period of their childhood in Denmark in consideration of the child and for integration reasons. Similarly, children and young aliens who already live in Denmark should grow up here, to the extent possible, and not in their parents ’ country of origin. Against that background, the Government finds that the age limit for under-age children ’ s entitlement to family reunification should be reduced from 18 to 15 years. The purpose of such reduction of the age limit for family reunification of children is to counteract both re-education journeys and the cases in which the parents consciously choose to let a child remain in its country of origin until the child is nearly grown up.",
"However, a residence permit will still have to be issued to children over 15 years of age based on an application for family reunification if a refusal would be contrary to article 8 of the Convention ... In cases where refusal of family reunification will be contrary to Denmark ’ s treaty obligations, and where section 9, subsection 1 (ii), of the Aliens Act does not allow for family reunification, a residence permit will thus have to be issued under section 9c, subsection 1, of the Aliens Act ...",
"In cases where the child has spent by far the largest part of his or her childhood in Denmark, and where the ties with the parents ’ country of origin are very poor, including where the child has attended school in Denmark only, or where the child speaks Danish, but not the language spoken in the parents ’ country of origin, regard for the best interest of the child might also imply, in these circumstances, that family reunification in Denmark must be granted. Circumstances may also exist in other situations which make it cogently appropriate to grant a residence permit in consideration of the best interest of the child even though the child is 15 years old or more at the time of the application.",
"29. Furthermore, the Aliens Act set out:",
"Section 9c",
"1. Upon application, a residence permit may be issued to an alien if exceptional reasons make it appropriate, including regard for family unity ...",
"Section 17",
"1. A residence permit lapses when the alien gives up his residence in Denmark. The permit also lapses when the alien has stayed outside Denmark for more than 6 consecutive months. Where the alien has been issued with a residence permit with a possibility of permanent residence and has lived lawfully for more than 2 years in Denmark, the residence permit lapses only when the alien has stayed outside Denmark for more than 12 consecutive months. The periods here referred to do not include absence owing to compulsory military service or any service substituted for that.",
"2. Upon application, it may be decided that a residence permit must be deemed not to have lapsed for the reasons given in subsection 1.",
"3. ...",
"Section 30",
"1. An alien who is not, under the rules of Parts I and III to Va, entitled to stay in Denmark, must leave Denmark.",
"2. If the alien does not leave Denmark voluntarily, the police must make arrangements for his departure. The Minister of Refugee, Immigration and Integration Affairs lays down more detailed rules in this respect.",
"3. ...",
"Section 31",
"1. An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country.",
"2. An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection 1.",
"Section 46",
"1. Decisions pursuant to this Act are made by the Immigration Service, except as provided by sections 9(19) and (20), 46a to 49, 50, 50a, 51(2), second sentence, 56a, (1) to (4), 58i and 58j, but see section 58d, second sentence.",
"2. Apart from the decisions mentioned in sections 9g(1), 11d, 32a, 33, 34a, 42a(7), first sentence, 42a (8), first sentence, 42b(1), (3) and (7) to (9), 42d(2), 46e, 53a and 53b, the decisions of the Immigration Service can be appealed to the Minister of Refugee, Immigration and Integration Affairs ...",
"Section 52",
"1. An alien who has been notified of a final administrative decision made under section 46 may request, within 14 days after the decision has been notified to the alien, that the decision is submitted for review by the competent court of the judicial district in which the alien is resident or, if the alien is not resident anywhere in the Kingdom of Denmark, by the Copenhagen City Court, provided that the subject matter of the decision is:",
"( i ) refusal of an application for a residence permit with a possibility of permanent residence under section 9, subsection 1 (ii);",
"(ii) lapse, revocation, or refusal of renewal of such permit;",
"...",
"2. The case must be brought before the court by the Danish Immigration Service, which shall transmit the case to the court, stating the decision appealed against and briefly the circumstances relied on, and the exhibits of the case.",
"3. The court shall see that all facts of the case are brought out and shall itself decide on examination of the alien and witnesses; procuring of other evidence; and whether proceedings are to be heard orally. If the alien fails without due cause to appear in court, the court shall decide whether the administrative decision appealed against is to be reviewed without the alien being present or the matter is to be dismissed or proceedings stayed.",
"4. If found necessary by the court, and provided that the alien satisfies the financial conditions under section 325 of the Administration of Justice Act, counsel must be assigned to the alien, except where he himself has retained counsel.",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"30. The applicant complained that the refusal to reinstate her residence permit in Denmark was in breach of Articles 3 of the Convention, which reads :",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Admissibility",
"31. The applicant pointed out that she had raised her fear of being returned to Somalia in the questionnaire of 12 July 2007. It had thus been open to the immigration authorities to consider the said questionnaire as an application for asylum. In any event she maintained that an asylum application was inappropriate and irrelevant to the substance of her claim which was centred on the refusal to re ‑ instate her residence permit.",
"32. The Government contended that this complaint should be declared inadmissible due to non-exhaustion of domestic remedies because the applicant had failed to raise before the relevant Danish authorities, either in form or substance, the complaint made to the Court.",
"33. They pointed out that a deportation was always subject to the conditions in section 31, subsection 1, of the Aliens Act according to which an alien may not be returned to a country where he will be at risk of the death penalty or of ill ‑ treatment.",
"34. The judicial review that took place in the present case under section 52 of the Aliens Act as to the lapse of residence permit and on family reunification did not include an assessment of the possible risk upon return to Somalia.",
"35. Moreover, when the decisions in dispute were issued, the authorities were not aware that the applicant had re ‑ entered Denmark illegally. They assumed that she was still in Kenya and therefore did not go further into the question of deportation. Accordingly, it was only later that the applicant was advised of the possibility of submitting an application for asylum under section 7 of the Aliens Act, of which she did not avail herself.",
"36. Finally, for the sake of completeness, the Government submitted that if the applicant wished to return to Kenya, she would have to apply to enter that country herself; the immigration authorities were not in a position to apply for her.",
"37. The Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).",
"38. Under Danish law the question of whether an alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin is examined by the Immigration Service and, on appeal, by the Refugee Appeals Board.",
"39. During her stay in Denmark, the applicant has not applied for asylum, even though the Ministry of Refugee, Immigration and Integration Affairs, in their letter of 27 January 2010, in addition to advising the applicant of her duty to leave Denmark, also advised her of the possibility of submitting an application for asylum under section 7 of the Aliens Act. It was specified that an application should be submitted in person to the Immigration Service or to the police. The applicant did not avail herself of that possibility.",
"40. Accordingly, the Danish authorities have not had the opportunity to consider whether the applicant would risk being subjected to treatment contrary to Article 3 upon return to Somalia.",
"41. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"42. The applicant further complained that the refusal to reinstate her residence permit in Denmark was in breach of Articles 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"43. The Government contested that argument.",
"44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"45. The applicant maintained that the Danish authorities ’ decision to refuse to reinstate her residence permit had been disproportionate to the aim pursued. She grew up in Denmark, spoke the language, went to school there and had her close family there. Accordingly, Denmark was the only place where she could develop aspects of her personality and relationships with others that were vital to private life.",
"46. In the applicant ’ s view, the Danish authorities had completely disregarded the manner in which she had been removed as a minor from Denmark by her father and subsequently exploited by being forced to take care of her paternal grandmother. The applicant thus alleged that she had been a victim of human trafficking as defined in Article 4(a) and 4(c) of the Council of Europe Convention on Action against Trafficking in Human Being. In such a case, where her father ’ s actions amounted to a criminal offence and were clearly not in her best interests, the State had a duty to look past the exercise of parental authority in order to protect her interest. Accordingly, when in August 2005, the applicant, who was still a minor, applied to re ‑ enter Denmark and the Danish authorities became aware of her situation, they had an obligation to protect her best interest, namely to reinstate her residence permit, allow her to resume her education, and reunite her with her mother and siblings in Denmark.",
"47. Finally, she maintained that in the light of the conditions in Somalia and the considerable expense of travelling elsewhere, it could not be expected that the applicant ’ s future family life should take place outside Denmark.",
"48. The Government maintained that a fair balance had been struck between the applicant ’ s interest on the one hand and the State ’ s interest in controlling immigration on the other hand. It had been noted that the applicant lived lawfully in Denmark from the age of seven to the age of fifteen and thus spent a large part of her childhood there. She had some Danish skills, and from 1995 until August 2002 she attended various schools, from some of which she was expelled. However, it had also been noted that the applicant had strong ties with Kenya and Somalia. She had family there and spoke Somali fluently. The applicant stayed in Kenya from 1991 to 1995 and from 2003 to 2005. The applicant ’ s father escorted her there in 2003 and visited her in 2005; there were thus no obstacles for him to enter that country. Likewise, the applicant ’ s mother had resided in Somalia and Kenya and there were no obstacles for her to enter any of those countries to exercise family life with the applicant there. The applicant ’ s siblings had all attained the age of majority.",
"49. In addition, the interruption of the applicant ’ s stay in Denmark and her separation from her family there was caused by a conscious decision by her parents because the applicant had problems in school and difficulties with her parents, who disapproved of certain aspects of her behaviour. Accordingly, apart from the applicant ’ s own statement, there was no evidence establishing that she was sent to Kenya for the purpose of exploitation and that she had been a victim of human trafficking.",
"50. As to the applicant ’ s allegation that she was prevented from resuming her education, the Government pointed out that the applicant was expelled from various schools in Denmark due to discipline problems. Moreover, according to the applicant ’ s mother ’ s letter of 24 November 2005 the purpose of sending the applicant to Kenya had been for her to attend school there, although this never happened. The Government thus contend that the applicant ’ s educational problems could not be attributed to others than herself and her parents.",
"51. In these circumstances they found that it had not been disproportionate to refuse to reinstate the applicant ’ s residence permit when she applied at the age of seventeen years and nine months, after more than two years of absence.",
"52. Finally, the Government noted that the applicant could submit a new application for a residence permit based on family unification under section 9c of the Aliens Act.",
"2. The Court ’ s assessment",
"53. By way of introduction, the Court notes that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligation inherent in effective “respect” for private and family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. The Court does not find it necessary to determine whether in the present case the impugned decision, to refuse to reinstate the applicant ’ s residence permit, constitutes an interference with her exercise of the right to respect for her private and family life or is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation. In the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole.",
"54. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants ’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see inter alia Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, §§ 67 and 68; Gül v. Switzerland, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, § 38; Ahmut v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI, § 63 and no. 13594/03, and Priya v. Denmark ( dec .), 6 July 2006.",
"55. The applicant was still a minor when, on 9 August 2005, she applied to be reunited with her family in Denmark. She had reached the age of majority when the refusal to reinstate her residence permit became final on 19 January 2008, when leave to appeal to the Supreme Court was refused. The Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted “family life”. Furthermore, Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual ’ s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect ( Maslov v. Austria [GC], no. 1638/03, §§ 62-63, 23 June 2008.",
"56. Accordingly, the measures complained of interfered with both the applicant ’ s “private life” and her “family life”.",
"57. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.",
"58. It is not in dispute that the impugned measure had a basis in domestic law, namely sections 17 and 9 subsection 1 (ii), and pursued the legitimate aim of immigration control.",
"59. The main issue to be determined is whether the interference was “necessary in a democratic society” or more concretely whether the Danish authorities were under a duty to reinstate the applicant ’ s residence permit after she had been in Kenya for more than two years.",
"60. The Court observes that the applicant spent the formative years of her childhood and youth in Denmark, namely from the age of seven to fifteen years old. She speaks Danish and received schooling in Denmark until August 2002. Her divorced parents and older siblings live in Denmark. The applicant therefore had social, cultural and family ties in Denmark.",
"61. The applicant also had social, cultural and family ties in Kenya and Somalia. She was born in Somalia and lived there from 1987 to 1991. She resided in Kenya from 1991 to 1995. The applicant spoke Somali. It was unclear whether the applicant had family in Somalia but certain that she had family in Kenya. The applicant returned to Kenya in 2003 and took care of her parental grandmother. Her application in August 2005 to re-enter Denmark was refused but she re-entered the country illegally, apparently in June 2007. The applicant ’ s father was a recognised refugee from Somalia. He visited Kenya at least twice, namely in 2003 and 2005. The second time he remarried there. There was no indication that the applicant ’ s mother could not enter Somalia and Kenya.",
"62. The applicant alleged that she had been a victim of human trafficking and that this fact was ignored by the Danish authorities in their decision to refuse to reinstate her residence permit. The Court notes, however, that the applicant never reported being a victim of human trafficking to the police or to any other Danish authority, including the Danish Embassy in Nairobi, or to the lawyer representing her before the courts in Denmark. Moreover, although the applicant ’ s mother, who shared custody with the applicant ’ s father may not have agreed to the length of the applicant ’ s stay in Kenya or to the fact that the applicant did not receive any schooling there, there are no elements indicating that she did not agree to the applicant being accompanied by her father to Kenya in August 200 3 with a view to residing there temporarily. Nor did the applicant ’ s mother at any time subsequently express openly that the applicant had been a victim of human trafficking. The Danish authorities had thus no reason to take this allegation into account.",
"63. The applicant also maintained that the Danish authorities had a duty to look past the exercise of parental authority in order to protect her interest and that it was obvious that her father ’ s decision to send her to Kenya was not in her best interest.",
"64. The Court reiterates in this connection that the exercise of parental rights constitutes a fundamental element of family life, and that the care and upbringing of children normally and necessarily require that the parents decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty (see, for example Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144 ).",
"65. It also reiterates that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in a host country, very serious reasons are required to justify expulsion (see, Maslov v. Austria [GC], quoted above, § 75). In the present case the applicant was refused restoration of her lapsed residence permit, as opposed to being expelled due to having committed a crime. Nevertheless, it is undisputed that she spent the formative years of her childhood and youth in Denmark, namely from the age of seven to fifteen years old, that she spoke Danish, that she had received schooling in Denmark until August 2002, and that all her close family remained in Denmark. In these circumstances, the Court also considers that very serious reasons were required to justify the authorities ’ refusal to restore the applicant ’ s residence permit, when she applied from Kenya in August 2005.",
"66. The Government pointed out that the 12 months time-limit for stay abroad set out in section 17, subsection 1, of the Aliens Act had not changed since the applicant ’ s first entry into Denmark in 1995. Moreover, with effect from 1 July 2004, section 9, subsection (ii), of the Aliens Act was amended, limiting the right to family re-unification to children under 15 years instead of under 18 years, specifically to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins, as it was preferable in the legislator ’ s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark.",
"67. The Court does not question that the said legislation was accessible and foreseeable and pursued a legitimate aim. The crucial issue remains though whether, in the circumstances of the present case, the refusal to reinstate the applicant ’ s residence permit was proportionate to the aim pursued.",
"68. The Court notes in particular that the applicant was granted a residence permit in Denmark in November 1994 and subsequently entered the country in February 1995, when she was seven year old. Moreover, at the relevant time the applicant had already legally spent more than eight formative years of her childhood and youth in Denmark before, at the age of fifteen, she was sent to Kenya, which was not her native country. The case thus differs significantly from Ebrahim and Ebrahim v. the Netherlands ( dec .) of 18 March 2003, in which the first applicant entered the Netherlands with his family when he was ten years old and applied for asylum or a residence permit. When the boy was thirteen years old, serious tensions had developed between him and his stepfather who disapproved of the boy ’ s behaviour in the Netherlands. Therefore, the boy was returned to Lebanon to stay with his maternal grandmother in a refugee camp to become acquainted with his native country. Neither the boy nor any members of his family had at that time been granted a residence permit in the Netherlands. After three years in Lebanon, having reached the age of sixteen, the boy applied in vain to return to the Netherlands. The Court stated specifically in that case that “ that due consideration should be given to cases where a parent has achieved settled status in a country and wants to be reunited with her child who, for the time being, finds himself in the country of origin, and that it may be unreasonable to force the parent to choose between giving up the position which she has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other ’ s company, which constitutes a fundamental element of family life (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 68). The issue must therefore be examined not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicants ”.",
"69. The Court also notes that although the legislation at issue aimed at discouraging parents from sending their children to their countries of origin to be “re ‑ educated” in a manner their parents consider more consistent with their ethnic origins, the children ’ s right to respect for private and family life cannot be ignored.",
"70. In the present case, the applicant maintained that she had been obliged to leave Denmark to take care of her grandmother at the Hagadera refugee camp for more than two years; that her stay there was involuntary; that she had no means to leave the camp; and that her father ’ s decision to send her to Kenya had not been in her best interest.",
"71. The Ministry of Refugee, Immigration and Integration Affairs addressed some of these issues in its decision of 1 October 2007. It stated, among other things, “neither [the applicant] nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant ’ s] parents from contacting the immigration authorities before [the applicant ’ s ’ ] departure, which was planned. ... It is stated for the record that it was not [the applicant ’ s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant ’ s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances ... ”. The Court notes in this respect that the immigration authorities had discretionary powers by virtue of section 9 c to issue a residence permit to the applicant if exceptional reasons made it appropriate, including regard for family unity and by virtue of section 17, subsection 2 of the Aliens Act to decide that a residence permit must have been deemed not to have lapsed for the reasons given in subsection 1. However, under both provisions the immigration authorities found against the applicant.",
"72. The immigration authorities have submitted that they were not aware at the relevant time that the applicant had re ‑ entered Denmark. The same applied to the applicant ’ s appointed lawyer, the City Court and the High Court. Accordingly, the applicant was only heard in person at the Danish Embassy in Nairobi in August 2005, when she was seventeen years and nine months old.",
"73. Moreover, the applicant ’ s view that her father ’ s decision to send her to Kenya for so long had been against her will and not in her best interest, was disregarded by the authorities with reference to the fact that her parents had custody of her at the relevant time. The Court agrees that the exercise of parental rights constitutes a fundamental element of family life, and that the care and upbringing of children normally and necessarily require that the parents decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty (see, for example Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144). Nevertheless, in respecting parental rights, the authorities cannot ignore the child ’ s interest including its own right to respect for private and family life.",
"74. The applicant ’ s view on her right to respect for family life was also disregarded by, for example, the Migration Service with reference to the fact that she had not seen her mother for four years; that it had been her mother ’ s voluntary decision to send the applicant to Kenya; and that the applicant could still enjoy family life with her mother to the same extent as before. In the Court ’ s view, however, the fact that the applicant ’ s mother did not visit the applicant in Kenya, or that mother and child apparently had very limited contact for four years, can be explained by various factors, including practical and economical restraints, and can hardly lead to the conclusion that the applicant and her mother did not wish to maintain or intensify their family life together.",
"75. Finally, in May 2003, when the applicant was fifteen years old and sent to Kenya, even if section 17 of the Aliens Act set out that the applicant ’ s residence permit may lapse after twelve consecutive months abroad, the applicant could still apply for a residence permit in Denmark by virtue of Section 9, subsection 1(ii) of the Aliens Act in force at the relevant time. The latter provision was amended, however, as from 1 July 2004, when the applicant was still in Kenya, reducing the right to family reunification to children under fifteen years old instead of eighteen years old. The Court does not question the amended legislation as such but notes that the applicant and her parents could not have foreseen this amendment when they decided to sent the applicant to Kenya or at the time when the twelve month lime-limit expired.",
"76. Having regard to all the above circumstances, it cannot be said that the applicant ’ s interests have sufficiently been taken into account in the authorities ’ refusal to reinstate her residence permit in Denmark or that a fair balance was struck between the applicants ’ interests on the one hand and the State ’ s interest in controlling immigration on the other.",
"77. There has accordingly been a violation of Article 8 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLES 4, 13 AND 14 OF THE CONVENTION AND OF ARTICLE 2 OF PROTOCOL NO.1 TO THE CONVENTION.",
"78. The applicant has also contended that the refusal to reinstate her residence permit in Denmark contravened Article 4, 13 and 14 of the Convention and of Article 2 of Protocol No. 1 to the Convention.",
"79. The Court notes that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case, the applicants failed to raise either in form or in substance the above complaints that are made to the Court.",
"80. The Court notes that the applicant failed to raise, either in form or substance, before the domestic courts the complaint made to it under Article 4, 13 and 14 of the Convention and of Article 2 of Protocol No. 1 to the Convention.",
"81. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"82. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"83. The applicant claimed 15, 000 euros (EUR) in respect of non-pecuniary damage.",
"84. The Government found the amount excessive and submitted that finding a violation would in itself constitute adequate just satisfaction.",
"85. The Court awards the applicant EUR 15,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"86. The applicant also claimed 8,625 GBP pounds (equivalent to EUR 10,435 [1] ) for the costs and expenses incurred before the Court.",
"87. The Government found the amount excessive and noted that the applicant had failed to apply for legal aid under the Danish Legal Aid Act ( Lov 1999-12-20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettigheds - konventioner ) according to which applicants may be granted free legal aid for their lodging of complaints and the procedure before international institutions under human rights conventions.",
"88. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, and awards made in comparable cases against Denmark ( see, among others, Hasslund v. Denmark, no. 36244/06, § 63, 11 December 2008 and Christensen v. Denmark, no. 247/07, § 114, 22 January 2009 ), the Court considers it reasonable to award the sum of EUR 6,000 covering costs for the proceedings before the Court.",
"C. Default interest",
"89. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
15 | Berisha v. Switzerland | 30 July 2013 | This case concerned the Swiss authorities’ refusal to grant residence permits to the applicants’ three children, who were born in Kosovo and entered Switzerland illegally, and the authorities’ decision to expel the children to Kosovo. | The Court held that there had been no violation of Article 8 (right to respect of family life) of the Convention, considering in particular that the applicants were living in Switzerland because of their conscious decision to settle there rather than in Kosovo, and that their three children had not lived in Switzerland for long enough to have completely lost their ties with their country of birth, where they grew up and were educated for many years. Moreover the children still had family ties in Kosovo, the older two children, 17 and 19 years old, were of an age that they could be supported at a distance, and there was nothing to prevent the applicants traveling to, or staying with the youngest child, 10 years old, in Kosovo to safeguard her best interests as a child. Also taking into account the at times untruthful conduct of the applicants in the domestic proceedings, the Court concluded that the Swiss authorities had not overstepped their margin of appreciation under Article 8 of the Convention in refusing to grant residence permits to their children. | Children’s rights | Family reunification rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The first applicant was born in 1967 and the second applicant in 1974, both in Kosovo. Their children R., L. and B. were also born in Kosovo in 1994, 1996 and 2003 respectively. The applicants have a fourth child, E., who was born in Switzerland in 2010. They all live in Lausanne, Canton of Vaud.",
"8. In June 1997 the first applicant entered Switzerland, where he applied for asylum. His asylum request was rejected by the Federal Office for Migration on 19 November 1997 and it ordered that he should be expelled. The expulsion was not executed, and on 21 May 1999 the first applicant received a temporary residence permit for Switzerland.",
"9. On 28 February 2000 the first applicant married a Swiss national. On 2 March 2005 he received a permanent residence permit for Switzerland. On 26 August 2006 he got divorced.",
"10. On 10 January 2007 he married the second applicant - whom he had known since 1993 and with whom he had had the three children - in Rahovec (Kosovo). The second applicant entered Switzerland on 6 April 2007 with a visa. On 7 June 2007 the first applicant applied for a residence permit for the second applicant on the ground of family reunification. The second applicant announced her arrival in Lausanne on 8 June 2007. When she filled in the arrival form she left the question regarding family members unanswered. On 6 September 2007 the Office for Migration of the Canton of Vaud ( Le service de population du canton de Vaud; hereafter “the Migration Office ” ) granted her a residence permit valid until 5 April 2012.",
"11. On 4 December 2007 the second applicant applied to the Swiss representation in Pristina (Kosovo) for residence permits on the ground of family reunification for the three children, R., L. and B. She enclosed with the application the birth certificates of the three children, which named the first applicant as the father. On the basis of that application the Migration Office decided on 2 June 2008 to investigate the applicants ’ family situation. Both applicants, as well as the first applicant ’ s ex-wife, were interviewed. On this occasion the ex-wife declared that the first applicant “had abused her naivety and her good will ” and “had lied to her by hiding from her the fact that he had children, especially one born during their marriage”. The first applicant in turn stated that he had hidden those facts from his ex- wife because “ his relationship with the second applicant was not a serious one at that time ” and “ he was not sure whether he was the father of the children”. Further, “[ he ] did not know then whether he was going to marry the second applicant ”. On 18 December 2008 the second applicant wrote another letter to the Migration Office, informing it that her oldest daughter, L., had fallen seriously ill and had been hospitalised in Pristina. L. ’ s only relative who could care for her in Kosovo was her elderly grandmother. She therefore urged the Migration Office to decide the matter promptly. She attached a medical certificate of 11 December 2008 issued by the children ’ s hospital in Pristina, which stated that L. was suffering from rheumatic fever ( febris rheumatica ).",
"12. On 9 January 2009 the Migration Office informed the second applicant that it was minded to refuse the request for residence permits for the children on the ground of family reunification. The Migration Office held that neither she nor the first applicant had previously mentioned the existence of the three children, and it doubted whether the first applicant was in fact the father of the three children. The second applicant was however given the opportunity to contest those findings within a time-limit.",
"13. By a letter of 2 March 2009 the second applicant answered that she had never concealed the existence of her three children from the Swiss authorities. She explained that when she had entered Switzerland she had had no knowledge of the French language and had had to “improvise” when completing the entry form. That was why she had not answered the question regarding her children. However, in her personal visa application to the Swiss representation in Pristina on 13 March 2007 she had revealed the identity of her three children. She stated furthermore that her children had been mentioned regularly in the tax declarations to the Swiss authorities, and that the first applicant ’ s employer in Switzerland had paid child allowances for them for many years. Therefore, the Swiss authorities had always been aware of the existence of the children. As evidence she attached a copy of the tax declaration for the year 2007.",
"14. On 28 April 2009 the Migration Office refused the applicants ’ request for family reunification with their children. It ruled that neither the first nor the second applicant had mentioned the existence of their three children when they entered Switzerland, and they doubted that the first applicant was the father of the three children. They established that the applicants had not conducted themselves correctly with regard to the application, and accordingly they were no longer entitled to family reunification. The applicants did not appeal against this decision and it became final.",
"15. On 15 August 2009, the three children, R., L. and B., entered Switzerland clandestinely.",
"16. On 12 April 2010 the second applicant gave birth to a fourth child, E.",
"17. By a letter of 31 May 2010 the first applicant informed the Migration Office that R., L. and B. had been living in Switzerland illegally since 15 August 2009. He explained that it had been urgent to bring them to the respondent State because L. ’ s chances of recovery were better in Switzerland. Furthermore, he alleged that it had been for various reasons impossible for the children to remain in their home country. On 1 June 2010 the Migration Office officially registered the entry of the three children into Switzerland on 15 August 2009, and noted that the applicants had submitted a request for residence permits for them on the ground of family reunification.",
"18. On 13 July 2010 the Migration Office informed the applicants that it intended to dismiss their request. It established that the applicants had brought the children to Switzerland illegally despite the negative decision of the Migration Office of 28 April 2009. Therefore, the applicants had acted contrary to the rules of the immigration authorities. The Migration Office also reiterated that the children ’ s existence had previously been concealed from the Swiss authorities, and that the paternity of the first applicant had not been established. In addition, the legal requirements for family reunification had not been met. According to Article 47 (1) together with Article 47 (3b) of the new Foreign Nationals Act (see below, § 31 ), the right to family reunification had to be exercised within five years after the granting of a residence permit to the family member. This time - limit was only twelve months if the children were more than twelve years old. The request regarding R. and L., aged fifteen and fourteen respectively at the time of the application, was therefore late. Conversely, the request for B., aged seven at that time, was within the set time - limit. The Migration Office however found that, according to Rule 6.8 of the Federal Directive regarding family reunification, the purpose of a residence permit on the ground of family reunification was to enable all the members of a family to live together in the respondent State. Since R. and L. did not fulfil the prerequisites for a residence permit, it was not possible for the whole family to live together in Switzerland. Therefore, in the case of B. the requirements for family reunification were not met either. The Migration Office further added that, given that the second applicant had been granted a residence permit on 6 September 200 7, the applicants had waited quite a while before applying for family reunification, and they had not cited any other important family reasons for seeking reunification. Finally, they established that R., L. and B. had lived their entire lives in their home country of Kosovo, where they had attended school, that the two oldest siblings would soon attain the age of majority and that in the circumstances of the case it remained doubtful whether it had always been the applicants ’ true intention to construct family life in Switzerland. The Migration Office gave the applicants another opportunity to contest those findings.",
"19. By a letter of 29 July 2010 the applicants informed the Migration Office that they wanted to maintain their request. They affirmed that the children had come to live in Switzerland because their grandmother, with whom they had been living in Kosovo, was old and could no longer care for them. Furthermore, it had always been the intention of the applicants to be reunited with their children once the second applicant had obtained a residence permit in Switzerland; this was illustrated by the first request for family reunification, made on 4 December 2007. They held that they could not be reproached with tardiness in applying for family reunification, because it was the Migration Office which had taken a year and four months to decide on the first application. They further reiterated that they had never attempted to deceive as to the existence of the children, and they indicated that a refusal to issue residence permits to the three children would breach Article 8 of the Convention and be against their best interests as children as established in Article 3 (1), 8 (1), 9 (1) and 10 (1) of the United Nations Convention on the Rights of the Child ( see below § 3 3 ). Finally, they drew attention to the birth of the applicants ’ fourth child and the risk that a refusal of family reunification would separate the siblings.",
"20. By a decision of 23 August 2010 the Migration Office rejected the applicants ’ request for family reunification with their three children, on the grounds given previously. It further ordered that the children had to leave Switzerland within a month of the notification of the decision.",
"21. The applicants and their children appealed against this decision to the Cantonal Administrative Court of the Canton of Vaud (“the Cantonal Court”). They attached Swiss school certificates for R., L. and B. which stated that they were well integrated in Switzerland. In particular, the applicants reiterated that, if returned to their home country, the children would be obliged to live in an orphanage, because their grandmother was no longer able to care for them. Furthermore, they stated that the first applicant had always been officially recognised as the father of the children and that he had regularly visited them and financially supported them in Kosovo as well as now in Switzerland.",
"22. At the Cantonal Court ’ s request, a DNA examination was conducted. In a report of 30 December 2010 the University Centre of Legal Medicine Lausanne- Geneva established that the applicants were indeed the parents of the three children.",
"23. By a fax of 22 February 2011 the Cantonal Court asked the Swiss embassy in Pristina to send it a copy of the visa application the second applicant had made on 13 March 2007, in which she had allegedly mentioned the existence of her three children. In its answer the embassy informed the Cantonal Court that it could not provide a copy of the visa application because in accordance with internal instructions it had been destroyed after two years.",
"24. By a decision of 23 March 2011 the Cantonal Court dismissed the applicants ’ appeal. It first concluded that the decision of the Migration Office of 28 April 2009 had indeed become final. Therefore, only the facts as presented by the request for family reunification made on 1 June 2010 were relevant. On the merits, the Cantonal Court established that the domestic law indicated that the request for residence permits on the ground of family reunification for R. and L. had been submitted late. Residence permits could therefore only be issued to them if there were important family reasons as set out in Article 47 (4) of the Foreign Nationals Act. According to Article 75 of the Federal Ordinance “ Admission, Residence and Exercise of a Lucrative Activity ” ( see below, § 32 ) - the operative provision to Article 47 ( 4) of the Foreign Nationals Act - “important family reasons” were given when the best interests of the child could only be guaranteed by family reunification in Switzerland. The Cantonal Court however considered that in the case of R. and L. no such important family reasons could be identified; in particular, the positive development of L. ’ s recovery would not justify the permanent establishment of the children in Switzerland. Regarding the request of B., the Cantonal Court reiterated that in application of Article 96 (1) of the Foreign Nationals Act (see below § 31), the applicants had failed to establish that their private interest in a family reunification outweighed the public interest of the respondent State in controlling the entry of foreigners into its territory, although the second applicant had applied within the legal time - limit. In particular, it held: that in light of the statements made by the first applicant ’ s ex-wife, the applicants had engaged in deliberate deception between July 1997 and December 2007 as regards the existence of their three children; that according to Article 51 (2) and 62 (a) of the Foreign Nationals Act (see below § 31 ) this dissimulation alone justified the refusal of the children ’ s residence permits, because it breached public order; that the applicants had illegally brought the children to Switzerland and thereby presented the authorities with a fait accompli; that the applicants had not substantiated the age of the children ’ s grandmother in Kosovo and had not produced any medical evidence that the grandmother was no longer in a position to care for them; and that neither the birth of the fourth child nor the three children ’ s positive (Swiss) school certificates were decisive elements which would justify the issuing of residence permits. The application for residence permits for the three children should therefore be dismissed.",
"25. The applicants and their children appealed to the Federal Supreme Court against the Cantonal Court ’ s decision. They argued in particular that the Cantonal Court had not considered whether the refusal of the residence permits for the children was in breach of Article 8 of the Convention. Furthermore, they claimed that expulsion of the three children would violate Article 3 of the Convention, because in their home country the children would have to be dependent on social services or be sent to an orphanage.",
"26. By a decision of 18 November 2011 the Federal Supreme Court rejected the applicants ’ appeal. It endorsed the Cantonal Court ’ s findings, and ruled that the refusal of the residence permits was proportionate under domestic law as well as under Article 8 of the Convention. It further ruled that the applicants ’ claim of a breach of Article 3 of the Convention in the event of the children ’ s expulsion to Kosovo was manifestly ill-founded.",
"27. By a letter of 29 February 2012 the applicants addressed the Court requesting that, pending the proceedings before it, the Swiss Government be invited to revoke the expulsion of their three children. By a letter of 12 March 2012 the applicants were informed that their request for the application of Rule 39 of the Rules of the Court had been dismissed but that their application had been granted priority.",
"28. In addition to the documents produced in the domestic proceedings, the applicants also submitted to the Court new certificates from the schools where B. and L. were enrolled. With respect to B., the school certificates of the primary school of 15 February 2012 and 13 December 2012 indicated that she was an excellent student, speaking French fluently and being well integrated. Her teacher expressed incomprehension regarding the proposed expulsion, and stated that it would be against B. ’ s best interests as a child. Regarding L., the Director of the secondary school ( établissement secondaire ) wrote in a certificate dated 8 February 2012 that L. was very well integrated and that her high marks would presuppose her entry into high school ( le lycée ) the following school year.",
"29. On 17 July 2012 the cantonal authorities of the Canton of Vaud issued a permanent residence permit to the second applicant.",
"30. By a letter of 18 April 2013 the applicants ’ lawyer confirmed that R., L. and B. were still residing in Switzerland."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW",
"A. Domestic Law",
"31. Articles 43, 47, 51 (2), 62 (a) and 96 of the Foreign Nationals Act of 16 December 2005, as in force at the relevant time, read as follows:",
"Art. 43 Spouses and children of persons with a permanent residence permit",
"« 1. The foreign spouse and unmarried children under 18 of a person with a permanent residence permit who live with that person are entitled to be granted a residence permit and to have their residence permit extended.",
"2. After a law-abiding and uninterrupted residency of five years, spouses are entitled to be granted a permanent residence permit.",
"3. Children under twelve are entitled to be granted a permanent residence permit. »",
"Art. 47 Time limit for family reunification",
"« 1. The right to family reunification must be exercised within five years. Children over twelve must be reunified with their family within twelve months.",
"2. [ ... ].",
"3. The time limits for family members of:",
"a. [ ... ];",
"b. foreign nationals begin with the granting of a residence or permanent residence permit or with the constitution of the family relationship.",
"4. A subsequent family reunification shall be authorised only if there are important family reasons therefor. If necessary, the views of children over 14 on family reunification shall be heard. »",
"Art. 51 Expiry of the right to family reunification",
"« [ ... ]",
"2. The rights in terms of Articles 43, 48 and 50 expire if:",
"a. they are exercised in abuse of the law, in particular to circumvent the regulations of this Act and of its implementing provisions on admission and residency;",
"b. there are grounds for revocation in terms of Article 62. »",
"Art. 62 Revocation of permits and other rulings",
"« The competent authority may revoke permits, with the exception of the permanent residence permit, and other rulings under this Act if the foreign national:",
"a. or their representative in the permit procedure makes false statements or conceals material facts;",
"b. [ ... ]. »",
"Art. 96 Exercise of discretion",
"« 1. In exercising discretion, the competent authorities shall take account of public interests and personal circumstances, as well as the degree of the integration of foreign nationals.",
"[ ... ]. »",
"32. Article 75 of the Federal Ordinance “Admission, Residence and Exercise of a Lucrative Activity ” of 24 October 2007 (L ’ Ordonnance relative à l ’ Admission, au Séjour et à l ’ Exercise d ’ une Activité lucrative ), as in force at the relevant time, reads as follows:",
"Article 75",
"« Important family reasons as set out in Article 47(4) of the Foreign Nationals Act and [ ... ] may be cited if the best interest of the child can only be guaranteed through family reunification in Switzerland. »",
"B. International Law",
"33. The relevant provisions of the United Nations Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Switzerland on 26 March 1997, read as follows:",
"Preamble",
"« The States Parties to the present Convention,",
"[ ... ]",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, [ ... ]",
"Have agreed as follows:",
"[ ... ]. »",
"Article 3",
"« 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"[ ... ]. »",
"Article 8",
"« 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference",
"[ ... ]. »",
"Article 9",
"« 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will [ ... ].",
"[ ... ]. »",
"Article 10",
"« 1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.",
"[ ... ]. »",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"34. The applicants complained that the refusal of the Swiss authorities to grant their three children, R., L. and B., residence permits on the ground of family reunification in Switzerland and the decision to expel them to their home country was in breach of Article 8, which provides :",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"35. The Government contested that argument.",
"A. Admissibility",
"36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"a. The applicants",
"37. The applicants claimed that the Swiss authorities had not complied with their obligations, inherent in Article 8 of the Convention, to allow R., L. and B. to reside legally in Switzerland, thereby enabling them to enjoy family life in that country. They submitted that their interest in their children being allowed to reside in Switzerland outweighed those of the respondent State in refusing that permission. They insisted that the three children, who had been living in Switzerland illegally since 15 August 2009, were well integrated in the respondent State and especially in the school system. Therefore, no public interest of the respondent State would justify the refusal of residence permits for the children.",
"38. With respect to the question of whether the refusal of the residence permits for the children was proportionate under Article 8 of the Convention, they reiterated the arguments made before the domestic authorities. In particular, they claimed that the children should be allowed to continue their life with their immediate family in Switzerland and that it would be difficult to maintain a family life at a distance. They argued that expulsion would lead to separation from the applicants, their parents, and their little brother E., and to their being to a significant extent uprooted from the environment the children had been living in for the last three years. They further held that important family reasons for a family reunification did indeed exist : B. and L. were enrolled in school in Switzerland and R. still depended not only emotionally but also financially on the applicants because, despite having obtained a school certificate, he had been denied access to a professional apprenticeship as he was an illegal resident in Switzerland.",
"39. The applicants also claimed that the Swiss authorities had disregarded completely the situation to which the three children would be exposed if sent back to Kosovo. Even if they were still socially and culturally attached to their home country, which the applicants contested, they disputed that there was any proof that the children ’ s grandmother or other relatives would be able to care for them. They explained that the grandmother only temporarily took care of the children between 2007 and 2009 on condition that they would join the applicants in Switzerland as soon as the second applicant had obtained residence permits for them. Therefore, in the event of expulsion to their country of origin, the children would be at risk of spending their lives in an orphanage. This would be contrary to the children ’ s best interests and in violation of their rights under Article 3(1), 8 (1), 9(1) and 10(1) of the United Nations Convention on the Rights of the Child (see above § 33 ).",
"b. The Government",
"40. While the Government accepted that a family life within the meaning of Article 8(1) of the Convention existed between the applicants and their children L. and B., they disputed the existence of such a family life between the applicants and R. They argued that the latter, born in 1994, had reached the age of majority in the meantime and, aside from “normal affective ties with his parents ”, the applicants had not given any other reasons for being especially dependent on them.",
"41. The Government further held that the refusal of the residence permits for the three children on the ground of family reunification was proportionate under Article 8 of the Convention and in accordance with their right to control the entry of non-nationals into their territory. The Government reiterated that the applicants had deliberately concealed the existence of their three children when they entered Switzerland. The Swiss authorities had learned of their existence only on 4 December 2007. Furthermore, the applicants had not only concealed the existence of their three children but they had also brought them to Switzerland illegally. Instead of appealing against the decision of 28 April 2009, which had become final, they had presented the domestic authorities with a fait accompli. The Government thus maintained that in view of the applicants ’ wrongful conduct, the public interests of Switzerland outweighed their private interest in being reunited on its territory.",
"42. The Government further reasoned that it could not be concluded from the applicants ’ conduct that they had always wanted to be reunited with their children in Switzerland ( a contrario, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 45, 1 December 2005 ). Their second application for family reunification had only been made on 1 June 2010 which was, according to the domestic law, outside the time ‑ limit in respect of R. and L. Furthermore, the applicants had not given any important family reason for a family reunification. The Government considered it as not established that the children ’ s grandmother or other relative in Kosovo could not take care of them, a fortiori because the two older siblings were of an age at which they could, at least in part, look after themselves. Moreover, the children had spent most of their life in Kosovo and had gone to school there.",
"43. The Government further maintained that Article 8 of the Convention did not impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. The Government stated that it had been the applicants who had left their children behind in their home country. Furthermore, the grounds on which the first applicant had applied for asylum in 1997 had disappeared, as was illustrated by his frequent journeys to Kosovo even before 2007. Under those circumstances it could not be concluded that the issuing of residence permits for the three children in Switzerland was the only way to reunite the applicants ’ family.",
"44. The Government concluded that with consideration to the age of the children, their degree of dependency on the applicants, and their social integration in Switzerland and in Kosovo, as well as to the conduct of the applicants, the domestic authorities had not overstepped the margin of appreciation they had under Article 8 of the Convention.",
"2. The Court ’ s assessment",
"a) The existence of a family life according to Article 8 of the Convention",
"45. The Court notes that the parties agreed that there was a family life within the meaning of Article 8(1) of the Convention between the applicants and their daughters L. and B. In contrast, the Government disputed that a family life as set out in Article 8 of the Convention still existed between the applicants and their older son R. With reference to the case-law of the Court they argued that the relationship between R., who had reached the age of majority during the proceedings before this Court, and his parents did not fall within the protective scope of Article 8 because no “[ ... ] additional factors of dependence, other than normal emotional ties” had been established ( see Emonet and Others v. Switzerland, no. 39051/03, § 35, 13 December 2007 ). The applicants argued in opposition to this that R. was indeed still dependent on them, because as an illegal resident in Switzerland he was excluded from the labour market and was in need of their financial support.",
"46. The Court considers that when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant ( see Emonet and Others, cited above, § 35 ). In view of the following considerations (infra §§ 59-62 ), the issue of whether the applicants ’ relationship with R. still falls under the protection of Article 8 of the Convention may be left open.",
"b) Scope of the obligation under Article 8 of the Convention",
"i) General principles",
"47. The Court considers that the present case hinges on the question whether the authorities of the respondent State has the duty to allow R., L. and B. to reside legally on its territory with their parents and their younger brother, and thus should not expel them to their country of origin and should allow them to develop family life in Switzerland.",
"48. The Court notes that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Ahmut v. the Netherlands, 2 8 November 1996, § 63, Reports of Judgments and Decisions 1996 ‑ VI ).",
"49. In order to establish the scope of the State ’ s obligations, the Court must examine the facts of the case in the light of the applicable principles, which it has previously set out as follows (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996 ‑ I, and Ahmut, cited above, § 67 ):",
"(a) the extent of a State ’ s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest;",
"(b) as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory;",
"(c) where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunification in its territory.",
"50. In this context it must be borne in mind that cases like the present one do not only concern immigration, but also family life, and that it involves aliens - the applicants - who already had a family life which they left behind in another country until they achieved settled status in the host country (contrast Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94 ). In its assessment, the Court must therefore determine whether, in refusing to issue residence permits for the family members, the Government can be said to have struck a fair balance between the applicants ’ interest in developing a family life in the respondent State on the one hand and the State ’ s own interest in controlling immigration on the other.",
"51. The Court has further held that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010 ). For that purpose, in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle, cited above, § 44).",
"ii) Application of the principles in the present case",
"52. Firstly, the Court notes that the applicants did not appeal against the first decision of the Migration Office, delivered on 28 April 2009, which refused them the right to family reunification with their three children on Swiss territory. That decision became final. With respect to that decision the applicants have not exhausted domestic remedies. For the assessment of the present case, the Court is therefore bound by the facts that led to the present application, which originated in the applicants ’ second request for family reunification to the Migration Office on 1 June 2010.",
"53. The Court notes that the Government have not disputed that the applicants made efforts to obtain residence permits for their three children in Switzerland. As they did not appeal against the first negative decision of the Migration Office, the Government however argued that it had taken the applicants quite a while to apply again for family reunification and that the second application had been outside the time - limit in domestic law. Therefore, in the Government ’ s view, it could be doubted whether it had always been the applicants ’ real intention to be reunited with their children in Switzerland.",
"54. The Court has previously held that parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunification ( see Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001 ). Contrary to the Government ’ s contentions, it appears clear to the Court that in the present case the applicants had always intended that their three children should join them in Switzerland once the second applicant had settled there. The second applicant applied for family reunification only three months after obtaining a residence permit herself. While the question why the applicants did not appeal against the first negative decision of the Migration Office remains open, that question does not allow the conclusion that they abandoned the idea of family reunification at that time. To enable them to live with their children despite all this, they subsequently brought them illegally to Switzerland and applied again for residence permits for them.",
"55. As regards the question of to what extent it is true that the three children ’ s settling in Switzerland would be the most appropriate means for the applicants to develop family life together, the Court observes that the facts of the present application have to be compared to similar cases in which it has had to evaluate whether the domestic authorities breached Article 8 of the Convention in refusing to issue residence permits on the ground of family reunification.",
"56. The Court has previously rejected cases involving failed applications for family reunification and complaints under Article 8 where the children concerned had in the meantime reached an age where they were presumably not as much in need of care as young children and were increasingly able to fend for themselves. In cases of this nature, the Court has also examined whether the children have grown up in the cultural and linguistic environment of their country of origin, whether they have other relatives there, and whether it could be expected that the parents would return to that country (see, for instance, Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; I.M. v. the Netherlands (dec.), no. 41266/98, 25 March 2003; and Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003).",
"57. By contrast, in Sen (cited above), which concerned parents who had left their daughter behind in the care of relatives in their home country of Turkey to settle in the Netherlands, the Court established that the applicants were facing major obstacles to a return to their home country since they had been legally resident in the Netherlands for many years; their two youngest children had been born and brought up there and were attending school. With regard to those children, who had minimal ties with their home country, and in view of the young age of the daughter who had remained in Turkey (she was nine years old when the application to the domestic authorities was made), the Court considered it more appropriate to let the daughter come to the Netherlands to be reunited with her family there. The refusal of a residence permit for the daughter had therefore been in breach of Article 8 of the Convention ( ibid. §§ 39-42).",
"58. Moreover, in the case of Tuquabo-Tekle and Others, (cited above, §§ 47-52), the Court found a violation of Article 8 of the Convention regarding the refusal of a residence permit on the ground of family reunification to Mrs Tuquabo-Tekle ’ s daughter, who was, at the time of the domestic application, already fifteen years old. As well as establishing that the parents were facing major obstacles to a return to their country of origin, Eritrea, the Court ruled that the particular circumstances of the daughter ’ s situation in her home country - her grandmother, who was taking care of her, had taken her out of school and she had reached an age where she could be married off - were such that she should be allowed to be reunited with her family in the Netherlands. The Court held in that case that the daughter ’ s age should not be the sole element that led to a different assessment from that arrived at in the case of Sen ( cited above), in which the daughter had been some years younger.",
"59. Turning to the present application, the Court notes that as, inter alia, in the case of Sen (cited above), the applicants are living where they are because of their conscious decision to settle in Switzerland rather than remain in their home country. After their marriage in 2007, the second applicant joined her husband, the first applicant, who had already been living in Switzerland for ten years and was in possession of a permanent residence permit, with the aim of establishing a family life there. Subsequently, a fourth child was born to them and the second applicant also received a permanent residence permit for Switzerland. Nevertheless, the applicants were not prevented from maintaining the degree of family life they had had for many years before 2007. After the first applicant had moved to Switzerland in 1997, he had visited the second applicant and his children regularly and had a third child with the second applicant in 2003. He had also supported them financially.",
"60. As regards the situation of the three children, the Court considers that, despite the applicants ’ contentions, they must still have solid social and linguistic ties to their home country, where they grew up and went to school for many years. Although the children are now also well integrated in Switzerland, the Court is of the view that their period of stay in the respondent State is not long enough for them to have completely lost their ties with their country of origin. With regard to the fact that their grandmother looked after them for more than two years and is, after all, still living there now, it must also be assumed that they have strong family ties to Kosovo. Furthermore, the applicants have not disputed that L. ’ s health has in fact improved to the extent that it would not be a hindrance for her to return to her home country, and, with regard to the alleged financial dependence of R. on the applicants, the Court cannot see why he, as well as his sister, could not be supported at a distance, especially when it is considered that they are now 19 and 17 years old respectively. Lastly, with particular regard to the youngest of the three children, B., the Court notes that the applicants are not prevented from travelling - or even staying - with her in Kosovo in order to ensure that she is provided with the necessary care and education so that her best interests as a child are safeguarded.",
"61. In conclusion, and also taking into account the applicants ’ conduct in the domestic proceedings, which was not irreproachable, it cannot be found that the respondent State has failed to strike a fair balance between the applicants ’ interest in family reunification on the one hand and its own interest in controlling immigration on the other. Although it may well be that the applicants would prefer to maintain and intensify their family links with the three children in Switzerland, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see above, §§ 48, 49). The respondent State has therefore not overstepped the margin of appreciation it enjoys under Article 8 of the Convention.",
"62. It follows that no violation of Article 8 can be found on the facts of the present case.",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"63. The applicants complained that expulsion of the children to their home country would be in breach of Article 3 of the Convention, because they would be separated from their immediate family and sent to their home country, where they have no one to care for them. They would probably be sent to an orphanage and would depend on social services in Kosovo. Their expulsion would therefore put them at risk of inhuman or degrading treatment contrary to Article 3 of the Convention.",
"64. The Court notes that, apart from the separation from their parents and youngest brother, the applicants have not given any other reasons why the children would be at risk of inhuman or degrading treatment if they were returned to their home country. The Court observes that these arguments are essentially the same as those brought forward by the applicants under Article 8 of the Convention. The Court does not find any appearance of a violation of Article 3 of the Convention.",
"65. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention."
] |
16 | V.D. and Others v. Russia | 9 avril 2019 | This case concerned a child, who was cared for by a foster mother, the first applicant in the case, for nine years and was then returned to his biological parents. The first applicant and her remaining children complained about the Russian courts’ decisions to return the child to his parents, to terminate the first applicant’s guardianship rights and to deny them all access to the child. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention owing to the order by the domestic courts to remove the child from his foster mother and return him to his biological parents and a violation of Article 8 of the Convention because of the decision to deny the foster family any subsequent contact with the child. It found in particular that the domestic courts had weighed up all the necessary factors when deciding to return the child to his parents, such as whether the measure had been in his best interests. However, the courts had denied the foster family any subsequent contact with the child, who had formed close ties with the first applicant and her remaining children. In this regard, the Court noted that the courts’ decision had been based solely on an application of Russia’s legislation on contact rights, which was inflexible and did not take account of varying family situations. The courts had therefore not carried out the required assessment of the individual circumstances of the case. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants live in Astrakhan.",
"7. The first applicant has been or is a guardian ( a foster parent ) of the second to eighth applicants. R. was a minor, who remained in the first applicant ’ s care from 20 July 2001 until 26 July 2010.",
"8. At birth R. was diagnosed with several serious health conditions. He spent the first eight months of his life in hospital. As his condition remained very serious and unstable, his natural parents considered themselves unfit to attend to his needs and agreed for their son to be put into the care of the first applicant, who had qualifications in medicine and was an experienced paediatrician.",
"9. On 20 July 2001 the first applicant took R. from hospital and brought him at her place of residence.",
"10. On 23 November 2001 the Trusovskiy District Council in Astrakhan appointed the first applicant to act as R. ’ s guardian. The decision stated that R. ’ s parents were unable to ensure proper care of their child, who had serious congenital diseases, and that therefore they gave their consent in writing to the first applicant ’ s guardianship over R., and to his transfer into her care.",
"11. Eventually, at various dates in the period from 2003 to 2009 the first applicant also was appointed guardian to the second to eighth applicants.",
"12. Between 2001 and 2007, the first applicant and R. ’ s parents maintained good relations.",
"13. In 2007 R. ’ s state of health became more stable, and his parents expressed their wish to take him back into their care. The first applicant refused to return the boy.",
"A. Proceedings concerning deprivation of parental authority",
"14. On an unspecified date the first applicant brought a claim against R. ’ s parents in an attempt to have them deprived of their parental authority over him. She argued that they had left R. in the children ’ s hospital shortly after his birth; that they had not expressed any interest in his life, health and development; that they had not visited him; and that financial support they had given had been inadequate given the child ’ s special needs. According to the first applicant, R. ’ s parents were now interested in the boy only with a view to improving their living conditions, as having a disabled child in their care could entitle them to better social housing. The first applicant thus insisted that R. ’ s parents had evaded their parental duties and thus should be divested of their parental authority over R.",
"15. In the proceedings before the first-instance court, the Ministry of Education and Science of Astrakhan Region ( hereinafter “the childcare authority”) provided an expert report on the issue, in which they considered that R. ’ s parents “ [ did ] not show any interest in his life or health condition, they [ did ] not participate in his upbringing, they [ did ] not provide any financial maintenance and [had] chosen not to fulfil their parental duties”. The report concluded that they should be deprived of their parental authority.",
"16. On 11 November 2008 the Trusovskiy District Court of Astrakhan (“the District Court”) dismissed the first applicant ’ s claim. In particular, it rejected as unfounded the first applicant ’ s argument that R. ’ s parents had abandoned him in the children ’ s hospital; it observed in this connection that no evidence had been submitted to it – in the form of a written statement by R. ’ s parents or certificates from any health institutions – to show that R. ’ s parents had ever formally renounced their parental authority over the boy. The court further observed that the decision to transfer their son under the first applicant ’ s guardianship had been taken by the child ’ s parents at a very difficult time of their lives, when they had faced a very stressful situation of being unable, on their own, to attend to their son ’ s needs.",
"17. The District Court also rejected the first applicant ’ s allegation concerning R. ’ s parents ’ unwillingness or failure to visit their son in the absence of any obstacles. In the latter connection, the court observed that the first applicant had had a negative attitude towards R. ’ s parents ’ unexpected visits, and she had never informed them of the child ’ s absence from his place of residence ( for outings and trips abroad). Also, R. ’ s parents had been unable to obtain information about R. ’ s heath from the relevant healthcare institutions, as the latter had refused give them any such information at the first applicant ’ s written request.",
"18. The court also referred to statements of a number of witnesses which confirmed that R. ’ s parents had helped the first applicant with his maintenance, both financially and by providing various services requested by the first applicant; in particular, they had had maintenance and repair work in the first applicant ’ s housing done; they had ensured private transport for R. ’ s visits to medical appointments; they had supplied medicine and food for R. ’ s special diet; they had taken his clothes for cleaning and brought him clean clothes.",
"19. The court further considered the deprivation of parental authority to be an extraordinary measure that could only be applied on the grounds established in Article 69 of the Russian Family Code (see paragraph 68 below). In the circumstances of the case, the court did not discern any grounds justifying such a measure. At the same time, the court urged R. ’ s parents “ to change their attitude towards [ R. ’ s] upbringing” and imposed on the competent childcare authority an obligation to monitor their compliance with their parental obligations”. It also noted that the financial support provided by R. ’ s biological parents was insufficient and ordered that they pay the first applicant one quarter of their monthly income as child maintenance.",
"20. On 12 March 2009 the Astrakhan Regional Court (“the Regional Court”) upheld the first-instance judgment on appeal.",
"B. First set of proceedings concerning the determination of R. ’ s place of residence",
"21. On 26 February 2009 the District Court dismissed an application by R. ’ s parents to have their son returned to them.",
"22. It established, in particular, that the first applicant had been taking good care of R.; that she had actively involved relevant specialist healthcare professionals to ensure that he had received the necessary medical treatment and constant care; she had created all conditions necessary for his life and development, taking into account his special needs. The court also noted that for the period when R. had remained in the first applicant ’ s care, there had been improvements in his state of his health and progress in his physical and psychological development. It furthermore referred to the evidence confirming that the first applicant ’ s foster children lived in good living conditions; that they played as a group; that their leisure activities were well organised, and included group nature outings.",
"23. The District Court also established, with reference to the available written evidence and witness statements, that, until that moment, R. ’ s parents had not maintained contact with R., and had never enquired as to his health.",
"24. It further observed, with reference to the opinions of healthcare professionals and representatives of the childcare authority who had monitored R., that an abrupt change of surroundings, separation from the people he knew and immediate transfer to his biological parents could seriously traumatise the boy, endanger and harm his psychological state and thus aggravate his conditions. The boy would need a lengthy adaptation period to get used to his natural parents.",
"25. The court thus concluded that it would be in the child ’ s best interests to continue living with the first applicant for the time being.",
"26. The judgment became final on 13 March 2009.",
"C. Proceedings concerning R. ’ s parents ’ access to him",
"27. On an unspecified date, R. ’ s parents brought a claim against the first applicant. They complained that she had been obstructing their contact with R. and requested that the court grant them access to the boy, and determine the manner in which they could exercise their contact rights.",
"28. By a judgment of 7 May 2009 the District Court determined R. ’ s parents ’ rights of contact with the boy. It established that they should have access to him each Friday from 4.30 to 5.30 pm at the first applicant ’ s home, and each Sunday from 2 to 4 pm at their home in the first applicant ’ s presence.",
"29. On 10 June 2009 the Regional Court upheld the first-instance judgment on appeal.",
"30. The case file reveals that R. ’ s parents complied with the established order of their contact with R.",
"D. Second set of proceedings concerning the determination of R. ’ s place of residence",
"31. On an unspecified date R. ’ s parents brought another claim against the first applicant and the childcare authority before the District Court. They asked for their son ’ s return and termination of the first applicant ’ s guardianship over him.",
"32. In the ensuing proceedings both parties were represented by lawyers.",
"33. In the context of those proceedings, two reports were drawn up by psychologists of the childcare authority. They reflected the results of monitoring by psychologists of contact sessions between R. and his parents.",
"34. The first report dated 29 December 2009 described two contact sessions that had taken place at various times on 25-27 December 2009. It stated, in particular, that R. ’ s parents had established good psychological contact with the child, and that they had showed a caring and loving attitude towards the boy. The report furthermore stated that, in view of R. ’ s special condition and the considerable delay in his physical and psychological development, his interaction with the adults was very limited; however, the parents managed to establish tactile and emotional contact with him. Overall, in so far as his conditions made it possible to ascertain, the child felt psychologically comfortable and calm in the presence of his parents. At the same time, the experts pointed out that the child was very fragile and that, for his psychological comfort, he constantly needed the presence of the first applicant. The experts also stated that R. ’ s parents had insufficient understanding of their son ’ s emotional state and interests, the particularities of his psychological condition and his capabilities. The report concluded that it was necessary to continue the process of the child ’ s adaptation to his parents and to that end the duration of the contact sessions between R. and his parents should be extended.",
"35. The second report dated 4 May 2010 described two contact sessions that had taken place on 29 and 30 April 2010. It noted the child ’ s very serious condition, which greatly limited his interaction with the outside world. It further stated, in particular, that R. ’ s parents had successfully established psychological contact with their son; that they understood adequately his psychological particularities, emotional state, needs and capabilities. According to the report, when with his parents, R. felt calm and comfortable. In the course of their interaction, R. ’ s parents had created a warm and beneficial environment propitious for the child ’ s development.",
"36. In the proceedings before the court, the childcare authority expressed a generally favourable opinion regarding R. ’ s return to his biological parents, but pointed out that, in view of R. ’ s state of health, his integration into his family should be gradual. In particular, the duration of his contact sessions with the parents, which to then had taken place twice a week in daytime, could be extended and could include night - time contact.",
"37. On 4 May 2010 the District Court allowed R. ’ s parents ’ claims.",
"38. It examined in detail the circumstances of R. ’ s transfer to the first applicant ’ s care and the relations between the first applicant, R. ’ s parents and R. from that time forward. It pointed out, in particular, that R. ’ s parents had surrendered their son to the first applicant ’ s care given his very serious condition and her experience as a paediatrician; at that time they had considered themselves incapable of ensuring the specialist care he needed.",
"39. It rejected as untenable on the facts the first applicant ’ s argument that R. ’ s parents had abandoned their son in the hospital without valid reasons. It noted in this connection :",
"“ Neither the statements made by [R. ’ s ] parents nor relevant medical documents [to confirm that argument] were presented to the court. The [ defendants ] denied this fact. They submitted that they had not abandoned their child. On the contrary, they wanted him to get better and to return to his family.",
"It follows from the material in the case file that [ R. ] was given into the care of the guardian after his parents ’ futile attempts to provide him with due medical care and in the child ’ s [best] interests ...",
"[ R. ’ s parents] did not intend to abandon their child ... Even though he was under the [first applicant ’ s] guardianship, [his] family took an interest in his life and health, they provided ... financial support. ”",
"40. The District Court further referred to statements of various witnesses. In particular, eleven witnesses described the first applicant as a kind, caring and empathetic person, who helped other families with children with disabilities. They also stated that she had taken good care of R., that as a paediatrician she had attended to his needs, and that his condition had visibly improved owing to her efforts. The witnesses furthermore stated that the first applicant went with her foster children on trips, within the country and abroad. With respect to those statements the District Court noted that they confirmed only the first applicant ’ s good and caring attitude towards R. and the fact that she had duly performed her obligations towards him. However, in the court ’ s view, those statements did not show that R. ’ s parents were unable to take good care of the boy, nor that in view of R. ’ s physical and psychological condition he should continue living with the first applicant.",
"41. The court also referred to statements of Ms Z., a paediatrician, who submitted that she had known and been treating R. since he had been eight months old when he had been given into the first applicant ’ s care. The child had suffered from a serious congenital illness and had spent considerable time in hospital. At that time, his condition was stable, yet serious owing to his diagnosis – a central nervous system disorder and mobility impairments. The child needed constant appropriate care and supervision rather than mere medical treatment. The child had grown in ten years, had changed emotionally. He reacted to the people around him. However, he could not take care of himself. He could not eat, drink or walk on his own. He was in need of constant care. Ms Z. also added that she had accompanied the first applicant when she had taken R. to Austria for medical treatment. The boy had had a different reaction when the first applicant had held him in her arms and when Ms Z. had held him in her arms.",
"42. Ms M., one of the psychologists who had drawn up the reports of 29 December 2009 and 4 May 2010 (see paragraphs 34 and 35 above), submitted that it had been established in the course of monitoring that R. ’ s parents had learnt to identify and adequately understand specific psychological and physical particularities of their son. They showed genuine interest in the child and surrounded him with truly parental attention, love and care. They regularly consulted psychologists concerning the psychological condition of a child with developmental difficulties, asking about the requisite material and toys for, and how they should build communication, with such a child.",
"43. The District Court went on as follows :",
"“ Accordingly, as a result of monitoring of the contact sessions, it has been established that [ R. ’ s] parents communicated with [him] in a calm, sincere and benevolent manner. They successfully established psychological contact with him. They understood adequately his psychological particularities, emotional state, needs and capabilities. When with his parents, [ R. ] felt calm and comfortable. In the course of their interaction, they created a warm and beneficial environment favourable for the child ’ s development.",
"According to the report on the plaintiffs ’ living conditions ... in a two-room flat, the conditions were found satisfactory and corresponding to the family ’ s needs and favourable for children ’ s upbringing and living. [ R. ’ s] parents provided the conditions necessary for [ his ] living and upbringing.",
"...",
"The adduced materials reveal that [ R. ’ s] parents are a stable ... family. They are well-to-do and make an adequate living. They have permanent employment [and a] stable income. They provided positive personal references from their employers and from their place of residence. They do not have a history of psychiatric diseases or criminal records. Accordingly, they meet all the conditions and can raise the child and provide him with due care. ”",
"44. The court dismissed the first applicant ’ s argument that R. ’ s parents were seeking to cancel her guardianship in order to obtain better social housing. According to the court, this allegation had been refuted in the course of the proceedings by the explanations provided by R. ’ s parents, and by the evidence proving that their minor children, including R., owned shares in their flat.",
"45. It further rejected the argument advanced by the childcare authority that the child should be gradually integrated into his parents ’ family (see paragraph 36 above). In the court ’ s view, such gradual integration would have a negative impact on the child ’ s psychological state. Furthermore, it would interfere with his right to live and be brought up in his family. The court further stated that R. ’ s parents were his natural parents; they showed due care and love for him, and had by that time established psychological contact with him on the basis of contact sessions that had taken place over a considerable period of time, in particular in their flat. The child understood that his mother and father were his parents, in so far as his psychological development allowed it. The court also pointed out that the childcare authority had admitted that the reunification of R. with his family ultimately served his interest.",
"46. The District Court thus considered that “no convincing evidence [had been] submitted to show that [R. ’ s] parents [ had been ] unable to bring up their child with due care and attention”, and concluded as follows:",
"“ Regard being had to the above, the court holds that the plaintiffs ’ claim should be granted and they should be reunited with their child in order for them to continue exercising their parental rights in respect of the child ’ s education and development.",
"... the court holds that the [administrative] decision ... [of] 23 November 2001 ... should be terminated as no longer needed .”",
"47. The first applicant appealed against the first-instance judgment.",
"48. On 23 June 2010 the Regional Court examined the first applicant ’ s appeal submissions, where she and her lawyer made their case in person.",
"49. It then upheld the judgment of 4 May 2010 on appeal. It considered that the District Court had thoroughly examined the case and accurately established the relevant circumstances; that on the basis of various pieces of written evidence, the report of 4 May 2010 regarding the effects of R. ’ s parents ’ contact with him and a report on their living conditions being amongst their number, as well as on the basis of numerous witness statements, the first- instance court had taken a justified and well-reasoned decision that R. ’ s transfer to his biological family had been in his best interests.",
"50. On 26 July 2010 R. was transferred to his parents.",
"E. Proceedings concerning the applicants ’ access to R.",
"51. On an unspecified date the first applicant brought an action against R. ’ s parents on behalf of herself and on behalf of the other applicants in an attempt to gain access to R. She averred, in particular, that for the nine years during which R. had remained in her care, she and her foster children – the other applicants – had formed a family with a special bond existing between them; she further complained that, after R. ’ s transfer to his parents, there had been no contact between R. and the applicants, as R. ’ s parents had obstructed their attempts to maintain contact.",
"52. On 19 April 2011 the Sovetskiy District Court of Astrakhan (“the District Court”) dismissed the applicants ’ claim.",
"53. It observed, in particular, that Article 64 of the Russian Family Code (see paragraph 65 below) vested the authority to represent and protect a child ’ s interests in his or her natural parents, unless the latter ’ s interests stood in conflict with their child ’ s. The District Court stated, with reference to the available evidence and witness statements, that after R. ’ s transfer to his biological parents, they had established all the requisite conditions for the boy ’ s life and education, and had been fully able to attend to his needs. In particular, R. had undergone all the necessary medical examinations; and his parents had complied with healthcare professionals ’ recommendations as regards his care and medical assistance. The court concluded that R. ’ s parents were acting in his interests.",
"54. The District Court further noted that R. ’ s parents as well as the childcare authority objected to the applicants ’ communication with R. It also observed that it was impossible to find out R. ’ s opinion on the matter in view of his medical conditions.",
"55. The District Court went on to observe that the first applicant was not a member of R. ’ s family or a relative, within the meaning of Article 67 of the Russian Family Code (see paragraph 66 below ), nor did she have any legal ties with him after her guardianship over the boy had been terminated by a court decision, with the result that she did not pertain to the category of individuals entitled to seek access to the child under the Russian Family Code. In the court ’ s view, statements of a number of witnesses confirming R. ’ s attachment to the first applicant and her taking good care of him “ were not grounds for including the first applicant in the category of individuals entitled under the relevant legal provision to claim access to the child ”.",
"56. The first applicant appealed arguing, in particular, that the first ‑ instance court had erred, in the absence of a forensic expert examination of the matter, in its finding that the second applicant had been incapable of having and forming attachments to her and the other applicants; she complained that her request to have such an expert examination ordered had been rejected by the District Court. The applicant also argued that the first-instance court should have applied Article 67 of the Russian Family Code by analogy, as the relationship between the applicants and R. had been similar to that between biological family members.",
"57. On 8 June 2011 the Regional Court upheld the judgment of 19 April 2011 on appeal. It noted, in particular :",
"“When dismissing the [first applicant ’ s] claims, the [first-instance] court considered that, as set forth in Article 67 of the Family Code of the Russian Federation, the right of access to a child is granted to grandfathers, grandmothers, brothers, sisters and other relatives, while [the first applicant] is, as a matter of law, not regarded as a member of the family or a relative of a minor or any other person whose relationship with him is governed by family law ( appointed guardians, custodians, de facto guardians ) given that her guardianship has been terminated.",
"The [Regional Court] upholds the above finding of the first-instance court. By virtue of the Family Code of the Russian Federation, the right of access to a child is granted to a grandmother, a grandfather, brothers and sisters, [and] the child ’ s close relatives who take part in his upbringing and education. Accordingly, the legislation protects [the relevant rights] of close relatives. The right of access to a child is not guaranteed to other individuals. ”",
"58. As regards the first applicant ’ s argument that the first-instance court should have applied Article 67 of the Russian Family Code by analogy and should have considered her as R. ’ s family member given the nature of ties between them, the appellate court noted as follows:",
"“ When resolving the dispute, the court did not apply the law by analogy. ... [T]he members of the family, as a matter of law, are understood only as the individuals directly indicated in the Family Code of the Russian Federation. The resolution of a dispute by analogy would otherwise contradict the essence of the family relationship. ”",
"59. The court also rejected the applicant ’ s argument that the first ‑ instance court had failed to determine the degree of R. ’ s attachment to the applicants; it stated in this connection that the argument in question “ lacked a legal basis”.",
"60. The Regional Court also endorsed the District Court ’ s findings that R. ’ s parents had provided the requisite care to R.; and that they had carried out necessary medical and rehabilitation measures. It “[ discerned] no evidence that R. ’ s rights or interests [ had been ] infringed ” and dismissed the first applicant ’ s argument to that end as unsubstantiated."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Russian Family Code",
"1. Legal provision concerning protection of children ’ s rights",
"61. Article 54 provides that every child, that is to say a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as possible, a right to know his or her parents, a right to their care, a right to live together with them, except where it is contrary to his or her interests.",
"62. Article 55 entitles a child to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives.",
"63. By virtue of Article 57, a child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests.",
"2. Legal provisions concerning parents ’ rights and obligations",
"64. Article 63 provides that the parents ’ right to bring up their children has precedence over such a right of any other person.",
"65. Article 6 4 establishes that children ’ s rights and interests must be protected by their parents. The parents are entitled to act as legal representatives of their children and to protect their rights and interests in the children ’ s relations with any individuals or legal entities, including before the courts. The second part of the Article provides that parents have no right to represent their children if a competent childcare authority establishes the existence of a conflict between the parents ’ interests and those of their children. If this is the case, the childcare authority has an obligation to appoint a representative for the protection of the children ’ s rights and interests.",
"66. By virtue of Article 67, grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, a childcare authority may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authority ’ s order, the relative concerned or the childcare authority may apply to a court for a contact order. The court must take a decision in the child ’ s interests and must take the child ’ s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law.",
"67. Article 68 vests in the parents a right to seek the return of their child from any person who retains the child not on the basis of law or not in accordance with a court decision. In the event of a dispute, the parents are entitled to lodge a court claim for protection of their rights. When examining that claim, the court, with due regard to the child ’ s opinion, is entitled to reject the claim if it finds that the child ’ s transfer to the parents is contrary to the child ’ s interests.",
"68. Article 69 establishes that a parent may be deprived of parental authority if he or she avoids parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse.",
"3. Legal provisions governing guardianship",
"69. Article 148.1 provides, in particular, that the rights and obligations of a legal guardian are set in place by the Federal Law “On Guardianship” (see paragraph 70 below). It further provides that, unless it is provided otherwise in a federal law, the parents or persons replacing them forfeit their rights and obligations to represent and protect the child ’ s rights and lawful interests from the moment when a guardian receives such rights and obligations. It also establishes that a legal guardian is not entitled to obstruct a child ’ s contact with his or her parents and other relatives, except where it is contrary to the child ’ s interests.",
"B. Federal Law “On Guardianship”",
"70. Federal Law no. 48-FZ “On Guardianship” of 24 April 2008 ( Федеральный закон от 24 апреля 2008 № 48- ФЗ « Об опеке и попечительстве » ) provides in it section 15(2) that guardians are legal representatives of the children placed in their care and are entitled to act on their behalf for the protection of their rights and lawful interests without any formal authorisation.",
"C. Ruling of the Supreme Court of Russia",
"71. In its ruling no. 10 on the application by the courts of legislation when resolving disputes concerning upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular:",
"“ ...",
"6. In accordance with the law, the parents ’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child not on the basis of law nor pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code). At the same time, a court is entitled, with due regard to the child ’ s opinion, to reject a parent ’ s claim if it finds that the child ’ s transfer to the parent is contrary to the child ’ s interests ...",
"When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring the child up; the nature of the relations between the parent and the child, the child ’ s attachment to the individuals with whom he or she is living at that time, and other particular circumstances relevant for securing adequate conditions of the child ’ s living and upbringing by his or her parents as well as by the individuals with whom the minor is actually living and being brought up by ...",
"7. When examining parents ’ claims for the return of their children from individuals with whom [the children] remain on the basis of the law or in accordance with a court decision (guardians, foster parents ... ), it is necessary to find out whether the circumstances, which were the grounds for the transfer of a child to those individuals ..., have changed by the time the case is being examined, and whether the children ’ s return to their parents would be in their interests ”.",
"THE LAW",
"I. PRELIMINARY ISSUE",
"72. The first applicant lodged the present application on behalf of R., alleging a violation of his rights under Articles 3 and 8 of the Convention, and under Article 14 taken in conjunction with Article 8 of the Convention. She argued that the conditions governing the individual applications under the Convention were not necessarily the same as the national criteria relating to locus standi ( referring to A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013), and that a restrictive or purely technical approach to the issue of locus standi must be avoided ( S.P., D.P. and A. T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported ). In that connection, the first applicant insisted that she and R. had developed emotional ties that were equivalent to those between a mother and her child. The first applicant stressed that, unlike in the case cited by the Government, she had been taking care of R. for a very prolonged period, and more specifically during the first nine years of his life; during that period she had remained the only significant adult in his life. Moreover, during that period, she had had a formal legal link to R., having been his guardian. The first applicant further insisted that there was no conflict of interest between her and R., and that R. ’ s biological parents were not in a position to protect effectively his interests in the present case, given the issues it raised. The first applicant compared the situation in the present case with cases brought on children ’ s behalf by their natural parents deprived of the parental authority over those children, and argued that there was a danger that otherwise R. ’ s interests would never be brought to the Court ’ s attention.",
"73. The Government contested the first applicant ’ s standing to represent R. before the Court, with reference to the cases of Moretti and Benedetti v. Italy (no. 16318/07, 27 April 2010) and Giusto and Others v. Italy (( dec. ), no. 38972/06, ECHR 2007-V). They pointed out that, once her guardianship over the child had been terminated, the first applicant had lost any entitlement under domestic law to act as his legal representative. R. ’ s biological parents had full parental authority over him and were his legal representatives. They had never authorised the first applicant to represent R. before the Court. Therefore the part of the application lodged by the first applicant on R. ’ s behalf was incompatible ratione personae with the relevant provisions of the Convention.",
"74. The Court reiterates that the position of children under Article 34 of the Convention calls for careful consideration, as children must generally rely on other individuals to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (see A.K. and L. v. Croatia, cited above, § 47, and P.C. and S. v. the United Kingdom ( dec. ), no. 56547/00, 11 November 2001). It is necessary to avoid a restrictive and purely technical approach in this area; in particular, consideration must be given to the links between the child in question and his or her “representatives”, to the subject-matter and the purpose of the application and to the possibility of a conflict of interests (see S.P ., D.P. and A. T. v. the United Kingdom ( dec. ), cited above; Giusto and Others ( dec. ), cited above; and Moretti and Benedetti, cited above, § 32).",
"75. In the present case, the Court observes at the outset that the first applicant is not biologically related to R. Her situation is therefore different from the cases where the Court acknowledged natural parents ’ standing to act on behalf of their children in whose respect they had been deprived of their parental authority; in the latter connection, the Court has held that it was in principle in the interest of children to preserve ties with their biological parents (see A.K. and L. v. Croatia, cited above, §§ 48-49, with further references). The Court further observes that the first applicant is no longer R. ’ s guardian, as her guardianship was definitively withdrawn by the court decision of 4 May 2010, as upheld on appeal on 23 June 2010 (see paragraphs 46 and 49 above), with the result that she no longer has legal status to act on his behalf in the context of judicial or other proceedings at the domestic level. Furthermore, R. has been transferred to, and is now living with, his parents, who have full parental authority over him, which includes, among other things, the representation of the minor ’ s interests. They have never authorised the first applicant to represent R. before the Court. Lastly, in view of R. ’ s serious medical conditions, he is clearly not in a position to express himself on the issue.",
"76. In such circumstances, the Court is bound to conclude that the first applicant does not have standing to act before the Court on R. ’ s behalf. This part of the application must therefore be dismissed as incompatible ratione personae with the Convention provisions, in accordance with Article 35 §§ 3 and 4 thereof.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"77. The applicants complained that the decisions of the national authorities to return R. to his biological parents, terminate her guardianship and to refuse them contact with him had amounted to a breach of Article 8 of the Convention, which, in its relevant part, reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. The first applicant ’ s standing to lodge the present application on behalf of the second, third and eighth applicants",
"(a) Submissions by the parties",
"78. In the initial set of their observations of 22 January 2013, the Government disputed the first applicant ’ s standing to lodge the present application on the second applicant ’ s behalf. They pointed out that the second applicant, who, according to the Government, had been born on 15 April 199 4 (as indicated in the Government ’ s initial observations), or on 15 April 1995 (as indicated in the Government ’ s additional observations of 29 April 2013 ) had reached the age of majority, when, by virtue of the relevant domestic law, the first applicant had ceased to be her guardian, had lost any legal link with her and had thus no authority to act on her behalf either at the domestic or international level. In their additional observations of 29 April 2013, the Government raised the same objection in respect of the third and eighth applicants. They argued, in particular, that the first applicant was no longer authorised to act on behalf of the eighth applicant, who, in the Government ’ s submission, had been born on 29 April 1993; and as of 4 May 2013 had no longer been authorised to act on behalf of the third applicant, who had been born on 4 May 1995.",
"79. The applicants submitted that the second applicant ( born on 1 April 1994 ) had turned 18 years old on 1 April 2012, and had thus gained full legal capacity to participate in the proceedings before the Court. The second applicant had submitted a power of attorney authorising the first applicant to represent her interests before the Court.",
"(b) The Court ’ s assessment",
"80. The Court observes that the question of the first applicant ’ s standing to lodge the present application on behalf of the second, third and eight applicants is directly linked to its competence ratione personae to examine that part of the application. It has to satisfy itself that it has jurisdiction in any case brought before it, and it is therefore obliged to examine the question of its jurisdiction at each stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III; Uslu v. Turkey (no. 2), no. 23815/04, § 18, 20 January 2009; Boucke v. Montenegro, no. 26945/06, § 63, 21 February 2012; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016 ).",
"81. It further notes that, on 6 December 2010, the date when the present application was lodged, the second, third and eighth applicants were minors and the first applicant was their guardian thus having full authority to represent their interests and to act on their behalf.",
"82. Furthermore, in reply to the Government ’ s initial observations of 22 January 2013, the second applicant, who had come of age on 1 April 2012, confirmed her intention to pursue the application and signed a power of attorney authorising the first applicant to represent her in the proceedings before the Court.",
"83. As regards the third and eighth applicants, on 29 April 201 3 – the date of the submission by the Government of their additional observations and comments on the applicants ’ claims for just satisfaction – the third applicant ( born on 4 May 1995 ) was still a minor. Moreover, whilst the Government argued, without submitting any documentary evidence, that the eighth applicant had been born on 29 April 1993, the Court observes that, the documents enclosed by the applicants with their application form reveal that his actual date of birth is 29 April 2003. It is thus clear that, on when the parties completed the exchange of their observations in the present case, the third and eighth applicants were minors, and thus were not required to confirm their interest in pursuing the present application or to authorise formally the first applicant to represent their interests before the Court, as the first applicant, as their guardian (her legal status has not been disputed by the Government on any other grounds ), had standing to act on their behalf before the Court.",
"84. Against that background, the Court is satisfied that the first applicant had standing to represent the second, third and eighth applicants in the present case. It concludes that, in so far as the application was lodged by the first applicant on their behalf, it is compatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention.",
"2. Exhaustion of domestic remedies",
"85. In their additional observations of 29 April 2013, the Government briefly submitted that, the court claim for access to R. had been lodged by the first applicant on her behalf only.",
"86. In so far as this argument may be understood as an objection as to the admissibility for failure to exhaust available domestic remedies of this part of the application in respect of the second to eighth applicants, the Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Buzadji, cited above, § 64). It notes that the Government did not raise this objection in their initial observations of 22 January 2013 on the admissibility and merits of the application; nor did it provide any explanation for that delay, or refer to any exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner.",
"87. They are therefore unable to rely on a failure to exhaust domestic remedies at this stage of the proceedings (see Topal v. Republic of Moldova, no. 12257/06, § 27, 3 July 2018, and the authorities cited therein).",
"3. Existence of a “family life” between the applicants and R.",
"(a) Submissions by the parties",
"88. The Government argued that the “family life”, within the meaning of Article 8 of the Convention, between the applicants and R. had only existed as long as the first applicant had officially remained R. ’ s guardian. They furthermore stressed that during that period R. had not lost ties with his natural parents, who, as the domestic courts had established, had not failed in their parental duties, and had provided financial support to him. In such circumstances, in the Government ’ s opinion, the applicant ’ s complaints in respect of any infringement of their “family life” were incompatible ratione materiae with Article 8 of the Convention.",
"89. According to the applicants, the ties between them and R. had amounted to “family life”, within the meaning of Article 8 of the Convention, which, in the applicants ’ view, had expressly been acknowledged by the Government.",
"(b) The Court ’ s assessment",
"90. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017 ). The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII ).",
"91. The Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months had amounted to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them. The Court took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child ’ s parents (see Moretti and Benedetti, cited above, §§ 49-50, and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012).",
"92. In the present case, the existence of family ties between the applicants and R. prior to his transfer to his natural parents was not in dispute between the parties. Indeed, although there was no biological link between the applicants and R., the latter remained in the first applicant ’ s constant care from the age of eight months for the first nine years of his life. It has never been disputed, either before the domestic authorities or before the Court, that during that period the first applicant fully assumed the role of a parent vis-à-vis that child. The other applicants, when still minors, were taken by the first applicant into her care at various times, and lived as family with R. for periods ranging from one to seven years (see paragraph 11 above) before R. was eventually transferred to his biological parents. Close personal ties between the applicants and the fact that the first applicant had assumed the role of R. ’ s parent were acknowledged by domestic courts in various sets of proceedings (see paragraphs 22 and 40 above).",
"93. In such circumstances, the Court is satisfied that the relationship between the applicants and R. constituted “ family life ” within the meaning of Article 8 § 1 of the Convention (compare Antkowiak v. Poland ( dec. ), no. 27025/17, 22 May 2018 ). It follows that Article 8 of the Convention is applicable.",
"4. Conclusion",
"94. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Termination of the first applicant ’ s guardianship over R. and his transfer into his natural parents ’ care",
"(a) Submissions by the parties",
"i. The applicants",
"95. The applicants argued that the termination of the first applicant ’ s guardianship over R. and his transfer into his biological parents ’ care had constituted a disproportionate interference with their right to respect for their family life secured by Article 8 of the Convention.",
"96. They admitted that life in a family environment was a basic need of every child; however, they disagreed with the respondent Government that R. could realise that right only when living with his natural parents. They pointed out that, as the Government had acknowledged, their life with R. had constituted a “family life”, and argued that a question as to what form of family life would better serve a child ’ s interest should be resolved on the facts of a particular case, with due regard to the particular history of that child ’ s relations with his or her biological parents as well as to the ties between that child and his or her de facto family.",
"97. They insisted that continuing living with them would have been in R. ’ s best interests, given, in particular, the circumstances of his life prior to the courts ’ decision to terminate the first applicant ’ s guardianship and to transfer him to his natural parents ’ care. By taking that decision, the domestic courts, in the applicants ’ view, had failed to assess adequately all relevant circumstances and factors, and to base their decision on “relevant and sufficient” reasons.",
"98. In the above connection, the applicants argued, in particular, that, shortly after his birth, R. ’ s parents had actually abandoned him at the children ’ s hospital and had never come to see him there. Moreover, the very fact that a guardian had had to be appointed had been indicative that R. had been abandoned by his parents, as under national law guardianship had been possible only in respect of children left without parental care.",
"99. The applicants further disputed the Government ’ s arguments that R. ’ s parents had consented to the first applicant ’ s guardianship over their son and to his transfer into her care, as they had been unable to attend to his needs; and that the guardianship had been intended as a temporary measure until his condition had improved. In the latter connection, they submitted that in the administrative decision of 23 November 2001 (see paragraph 10 above) there had been no indication that the guardianship had been of a temporary nature; nor had time-limits or conditions in which the guardianship should be terminated been mentioned. The applicants also contended that R. ’ s parents could have remained living with R. and tried to organise necessary specialist care for him at home, with the assistance of healthcare professionals or by acquiring the necessary skills themselves, but instead they had chosen to live separately from the boy. In its judgment of 11 November 2008 – albeit at first instance – the District Court had found no grounds to deprive R. ’ s parents of their parental authority over R., it had pointed out to the necessity for them to change their attitude to R. ’ s upbringing (see paragraph 19 above), thereby implicitly acknowledging that R. ’ s parents had not fulfilled their parental obligations in a satisfactory manner.",
"100. The applicants went on to argue that R. ’ s parents had not maintained personal contact with him and had not expressed interest in regard to him during the first eight years of his life, this fact having been acknowledged in a judgment of 26 February 2009 (see paragraph 23 above).",
"101. They insisted that, in any event, when the decision to terminate the guardianship had been taken, the ties between R. and the applicants had been much stronger than his relations with his natural parents. Indeed, by that point in time, the boy had never lived with his parents, whereas it had been the first applicant who for the first nine years of his life had taken care of him on a daily basis, and had thus been the only significant adult for him. In the applicants ’ view, the domestic courts had failed to have regard to R. ’ s best interests and, in particular, to the specific needs he had because of his medical conditions.",
"102. The applicants also expressed doubts that the measures taken with a view to ensuring R. ’ s adaptation to his biological parents and his integration into his family prior to his transfer into their care had been adequate, as they had been limited to several dozen short meetings with the parents. The applicants referred to the opinion of the childcare authority, who had considered those measures insufficient and had recommended to increase R. ’ s contact with the parents gradually instead of transferring him immediately into their care (see paragraphs 34 and 36 above).",
"103. In such circumstances, termination of R. ’ s family life with the applicants and his transfer to the biological parents had, in the applicants ’ view, mainly served their interests rather than those of the child.",
"ii. The Government",
"104. According to the Government, termination of the first applicant ’ s guardianship over R. and his transfer to his natural parents ’ care had met the requirements of Article 8 of the Convention. They argued, in particular, that the impugned measure had had a basis in national law, and more specifically in several Articles of the Russian Family Code, which had enshrined the right of each child to know, maintain contact with, live and be in the care of his or her parents; as well as the precedence of the parents ’ right to bring up their children (see paragraphs 61, 64 and 67 above).",
"105. They further stressed that the impugned measure had been taken in the child ’ s best interests and had been necessary to ensure the respect for his parents ’ rights secured by Article 8 of the Convention. In this connection, they pointed out, in particular, that R. ’ s biological parents had never formally renounced their parental authority over him; and that their parental authority had never been restricted, or withdrawn, by the competent authorities. The Government pointed out that, in various sets of proceedings, the domestic courts had established that R. ’ s parents had never abandoned their child; they had enquired about his life and health, supported him financially, and brought him necessary medicine and food for a special diet and clothes; and they had also responded to the first applicant ’ s requests regarding R. (see paragraphs 18 and 39 above). The Government thus argued that the family life between R. and his parents and other close relatives had never ceased to exist; his parents and other close relatives had always shown their deep attachment to him and had always considered him to be a member of their family.",
"106. The Government further submitted that it had been at a very difficult period of their life that R. ’ s parents had consented to their son ’ s transfer into the first applicant ’ s care; they had done so in view of his very serious medical condition, which at that moment had been critical. They, themselves, had been incapable at that period of providing the professional care that their child had needed, whereas the first applicant – a paediatrician – had been able to attend to his needs. The Government stressed that the guardianship had had to remain in place until R. ’ s condition had improved. In fact, in 2007, when R. ’ s state of health had stabilised, his parents had expressed their intention to take him home. They argued, more generally, that by its very nature, guardianship was a temporary measure which was to be ended as soon as the circumstances allowed it.",
"107. The Government also insisted that the domestic courts had carefully examined the circumstances of the instant case, had assessed the adduced written evidence and witness statements, and had based their relevant decision to terminate the first applicant ’ s guardianship over R. and to surrender him to his parents ’ care on “relevant and sufficient” reasons. In particular, they had examined R. ’ s family situation, had taken into account various factors, had balanced the interests of various parties to the conflict and had taken a decision in the best interests of the child.",
"108. More specifically, the domestic courts had been mindful of the fact that the applicants and R. had lived together for a very lengthy period, and had assessed, with reference to witness statements and written evidence, including the report of 4 May 2010 (see paragraph 35 above), the question of whether the boy ’ s removal from the applicants ’ family could negatively affect his physical or psychological state. Moreover, R. ’ s transfer to his parents had only been ordered after a one-year period of adaptation during which R. ’ s parents and brother had re-stablished their family bonds with R. The domestic courts had satisfied themselves that R. ’ s parents had acquired the necessary skills to take care of R., that they had been able to understand his psychological and emotional state, his aptitudes and needs.",
"109. The Government thus argued that the impugned measure had not breached the applicants ’ right to respect for their family life, as in the present case reunification with his natural parents had served the best interests of the child.",
"(b) The Court ’ s assessment",
"110. The Court has found in paragraph 93 above that the relationship that existed between the applicants and R. when the authorities intervened constituted “family life”, within the meaning of Article 8 of the Convention. The annulment of the first applicant ’ s guardianship over R. and his transfer to his biological parents resulted in severance of that relationship and thus constituted an interference with the applicants ’ right to respect for their family life, as guaranteed by Article 8 of the Convention ( compare Ageyevy v. Russia, no. 7075/10, §§ 120 and 137, 18 April 2013, and Antkowiak ( dec. ), cited above, § 63 ). Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no. 10592/12, § 74, 22 October 2015 ).",
"111. The Court accepts the Government ’ s argument that the impugned measures had a basis in national law, and more specifically, in Articles 54, 63 and 68 of the Russian Family Code (see paragraphs 61, 64 and 67 above). It is furthermore satisfied that those measures were intended to protect “the rights and freedoms of the others”, and specifically those of R. and his biological parents. It remains to be determined whether the interference at issue was necessary in a democratic society.",
"112. In addressing this question, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “ relevant and sufficient ” for the purposes of Article 8 § 2 of the Convention. It cannot satisfactorily assess this latter element without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see, for instance, Schneider v. Germany, no. 17080/07, § 93, 15 September 2011).",
"113. It must further be borne in mind that the national authorities have the benefit of direct contact with all the individuals concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and contact issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their discretionary powers (see, among other authorities, Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004 ).",
"114. There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see, for instance, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 95, 29 March 2016 ). The parents ’ interests nevertheless remain a factor when balancing the various interests at stake. Child interests dictate that the child ’ s ties with his or her family be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see, as a recent authority, Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017 ). Article 8 of the Convention thus imposes on every State the obligation to aim at reuniting natural parents with his or her child (see Görgülü, cited above, § 45).",
"115. In the present case, the domestic authorities were faced with a difficult choice between allowing the applicants, who at that time were R. ’ s de facto family, to continue their relationship with him or taking measures to bring about the boy ’ s reunion with his biological family (compare Antkowiak ( dec. ), cited above, § 70 ). To that end, they were called upon to assess and fairly balance the competing interests of R. ’ s parents and those of the applicants. They also had to bear in mind that, in view of his special physical and psychological conditions, R. was a particularly vulnerable child. The domestic authorities were therefore required to show particular vigilance in assessing his interests and to afford him increased protection with due regard to his state of health.",
"116. In the above connection, the following considerations appear to be relevant. The Court notes, firstly, that, as pointed out by the applicants (see paragraph 101 above), R. spent the first nine years of his life in the first applicant ’ s care, a period during which she remained the boy ’ s primary carer, having fully assumed the role of his parent. The Court considers that, albeit undoubtedly a considerable period of time, this factor alone could not have ruled out the possibility of R. ’ s reunification with his biological family. Indeed, effective respect for family life requires that future relations between parent and child be determined in the light of all the relevant considerations and not by the mere passage of time (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015 ).",
"117. It further notes that it is true that R. ’ s parents acquiesced to the appointment of the first applicant as R. ’ s guardian. At the same time, as pointed out by the Government, they never formally renounced their parental authority over their son; neither were they restricted in, nor deprived of that authority (see paragraphs 16 and 39 above). Moreover, the domestic courts established that, although during the first eight years of R. ’ s life his parents had not maintained contact with him, they had nevertheless supported him financially and had accommodated the first applicant ’ s requests regarding medicine, food for a special diet for the boy, and the like ( see paragraph 18 above). Moreover, in 2009, they re-established their relationship with R. when the District Court determined their contact rights regarding him (see paragraphs 28 - 30 above). They therefore remained present in their son ’ s life, with the result that, even in the absence of any explicit time-limits or conditions for ending the first applicant ’ s guardianship in the text of the administrative decision of 23 November 2001, she could not have realistically assumed that R. would have remained in her care permanently. It thus rejects the first applicant ’ s argument to that end (see paragraph 99 above). The Court reiterates in that connection that care orders are by their very nature meant to be temporary measures, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Ageyevy, cited above, § 143, and S.S. v. Slovenia, no. 40938/16, § § 85 and 101, 30 October 2018).",
"118. Furthermore, the case file reveals that the domestic courts carefully assessed R. ’ s best interests, with due regard to his state of health and his needs. In various sets of court proceedings, they noted, in particular, the first applicant ’ s attachment and genuinely caring attitude towards the child; her proactive approach in taking care of him and addressing his health issues, which had ensured progress in his physical and psychological development and overall improvement of his conditions (see paragraphs 22 and 40 above). As regards the biological parents, initially the authorities had doubts about whether they were fit and capable of securing R. ’ s needs. In particular, the authorities pointed to the lack of personal contact between them and R. and urged them to take a more responsible attitude regarding their parental obligations (see paragraphs 15, 19 and 23 above). In that connection, the courts rejected R. ’ s parents first claim for the boy ’ s transfer to their care, noting that such an immediate transfer could traumatise him and compromise his health, and that an adaptation period was necessary for R. to get used to his natural parents (see paragraph 24 above). In the proceedings concerning R. ’ s parents ’ second claim for his transfer, however, the courts found that R. ’ s parents were fit to raise him. It is noteworthy that by that time the contact arrangements between R. and his parents had been in place for a year. When taking that decision, the domestic courts satisfied themselves, with due regard to written evidence, including psychological reports, and witness statements, that R. ’ s parents had re-established their relations with the child; that they could adequately understand his psychological particularities, emotional state, needs and capabilities; that they had appropriate living conditions for the child; and that the latter felt calm and comfortable with them (see paragraphs 35, 42 and 43 above).",
"119. Against that background, and with due regard to the fact that the domestic authorities had the benefit of contact with all those concerned, the Court considers that, when ordering R. ’ s transfer to his biological parents and the termination of the first applicant ’ s guardianship over him, the domestic authorities acted within their margin appreciation and in compliance with their obligation under Article 8 of the Convention to aim for the reunification of the child with his parents. It further considers that they provided “relevant and sufficient” reasons for the measure complained of. Whilst the Court acknowledges the emotional hardship that the said decision must have caused the applicants, their rights could not override the best interests of the child (compare Antkowiak ( dec. ), cited above, § 72).",
"120. Lastly, in so far as the decision-making process was concerned, the Court observes that the first applicant, acting on behalf of herself and on the other applicants ’ behalf, was fully involved in the relevant proceedings and legally represented at both levels of jurisdiction (see paragraphs 32 and 48 above). She was able to state her case, to present her arguments and submit evidence; numerous witnesses on her behalf were called and examined at the first-instance court (see paragraphs 40 above). The relevant court decisions reveal that her arguments were addressed and received reasoned replies. In such circumstances, the Court is satisfied that the decision ‑ making process was fair and provided the applicants with sufficient safeguards of their rights under Article 8 of the Convention.",
"121. In the light of the foregoing, the Court concludes that the decision to terminate the first applicant ’ s guardianship over R. and to transfer him to his biological family corresponded to his best interests, was taken within the authorities ’ margin of appreciation and was based on “relevant and sufficient” reasons. The interference with the applicants ’ family life was thus “necessary in a democratic society”.",
"122. There has accordingly been no violation of Article 8 of the Convention.",
"2. The applicants ’ access to R.",
"(a) Submissions by the parties",
"123. The applicants complained that the refusal of any access and any contact with R. had led to a total severance of their family ties with him and had been grossly disproportionate to any legitimate aims the authorities might have pursued. In their submission, the decision of the domestic courts to refuse them any contact rights with R. had been the result of a formalistic approach of those courts to the concept of family and of their failure to take into account the emotional ties between the applicants and R. It had also been rooted in the inadequacy of the domestic legislation which had afforded no protection to de facto family ties existing in the absence of biological kinship or and legal arrangements, such as guardianship. The applicants also argued that the domestic courts ’ refusal to order a comprehensive medical examination with a view to obtaining R. ’ s opinion on the matter, and their failure to adduce any evidence regarding R. ’ s best interests in the question of contact rights with the applicants had rendered their relevant decisions arbitrary.",
"124. The Government argued that the domestic courts had been justified in their decision not to grant the applicants access to R. They pointed out that Article 67 of the Russian Family Code had established an exhaustive list of individuals entitled to have access to a child (see paragraph 66 above). Since the applicants had had neither blood ties with R., nor – after the first applicant ’ s guardianship had been cancelled – legal ties with him, there had been no grounds in national law to grant them access to R. The Government also pointed out that – as had been established by the domestic courts – R. ’ s medical condition had made it impossible to ascertain whether he had had any attachment to the applicants, and that therefore their argument to that end had been without foundation. They insisted therefore that, by refusing the applicants contact with R., the domestic authorities had not breached their right to respect for their family life under Article 8 of the Convention.",
"(b) The Court ’ s assessment",
"125. The Court reiterates that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained (see Kocherov and Sergeyeva, cited above, § 98, and the authorities cited therein ). Moreover, even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see, for instance, Kacper Nowakowski, cited above, § 71, 10 January 2017).",
"126. The Court has also held that, in view of the great variety of family situations possibly concerned, a fair balancing of the rights of all individuals involved necessitates an examination of the particular circumstances of each case (see Schneider, cited above, § 100). Accordingly, Article 8 of the Convention can be interpreted as imposing on member States an obligation to examine on a case-by-case basis whether it is in the child ’ s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (see Nazarenko v. Russia, no. 39438/13, § 66, ECHR 2015 (extracts)).",
"127. In the present case, the domestic courts rejected the first applicant ’ s claims in respect of access to R., with reference to the absence of any legal link between her and the child after her guardianship had been terminated; they also pointed out to the lack of biological kinship between them, which pursuant to Article 67 of the Russian Family Code ruled out any possibility for the first applicant to seek access to the child (see paragraphs 55, 57 and 58 above).",
"128. In the Nazarenko case, cited above, which concerned a situation where the applicant lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, after it had been established that he was not her biological father, the Court has already expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who are entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person, who is not related to the child but who has taken care of him or her for a long period of time and has formed a close personal bond with him or her, is entirely and automatically excluded from the child ’ s life and cannot obtain contact rights in any circumstances, irrespective of the child ’ s best interests (see Nazarenko, cited above, §§ 65 and 67). The Court has found that the complete and automatic exclusion of the applicant from the child ’ s life after his parental status in respect of her was terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the child ’ s best interests – amounted to a failure to respect the applicant ’ s family life (ibid., § 68).",
"129. The Court discerns nothing in the reasoning of the domestic courts regarding the applicants ’ claim for access to R. which would enable it to reach a different conclusion in the present case. The texts of the court decisions reveal that the courts made no attempt to assess the particular circumstances of the present case, and, in particular, to take into consideration the relationship that existed between the applicants and R. prior to the termination of the first applicant ’ s guardianship over him; to give any consideration to the question of whether, and why contact between the applicants and R. might or might not be in R. ’ s best interests; to give any consideration to the question of whether and why the interests of R. ’ s natural parents might or might not override those of the applicants. In fact, in its final and binding decision, the appellate court limited itself to holding that the right to seek access to a child could in no circumstances be guaranteed to any individuals other than those listed in Article 6 7 of the Russian Family Code (see paragraphs 57 and 58 above). The Court cannot accept such reasoning as “relevant and sufficient” to deny the applicants access to R. Whilst it is not for the Court to speculate whether granting the applicants access to R. was in the child ’ s best interests, it cannot accept that the relevant court decisions were not based on the assessment of the individual circumstances of the present case and automatically rules out any possibility for the family ties between the applicants and R. to be maintained.",
"130. In the light of the foregoing considerations, the Court is bound to conclude that the domestic authorities failed in their obligation to fairly balance the rights of all individuals involved with due regard to particular circumstances of the present case, which amounted to a failure to respect the applicants ’ family life (compare Nazarenko, cited above, §§ 66 and 68).",
"131. There has accordingly been a violation of Article 8 of the Convention on that account.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"132. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"133. The applicants submitted that they had been deeply attached to R. and that they had suffered distress and anxiety since his transfer to his parents in view of their inability to maintain any contact with him. They claimed non-pecuniary damage in that connection, and in particular, 20,000 euros (EUR) to be awarded to the first applicant, EUR 10,000 to be awarded to each of the second and third applicants and EUR 5,000 to be awarded to each of the fourth to eighth applicants.",
"134. The Government contested that claim as excessive and unreasonable.",
"135. The Court notes that it has found a violation of the applicants ’ right to respect for their family life on account of the authorities ’ failure to provide a possibility for the family ties between the applicants and R. to be maintained. It considers that the applicants suffered non-pecuniary damage in that connection, which cannot be compensated by a mere finding of a violation. Accordingly, the Court awards the applicants jointly EUR 16, 00 0 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"136. The applicants also claimed 5,000 Russian roubles (RUB – approximately EUR 200 ) for the costs and expenses incurred before the domestic courts in the proceedings for contact rights.",
"137. The Government did not contest the indicated amount of the costs, or the fact that those had actually been paid; however, they argued that the applicants had been ordered to pay that amount in accordance with the relevant provisions of law on civil procedure, given the fact that they had lost the civil dispute. The Government therefore insisted that the applicants ’ claim for reimbursement should be rejected.",
"138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly sum of EUR 200 for costs and expenses in the relevant domestic proceedings.",
"C. Default interest",
"139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.",
"IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION",
"140. With reference to Article 46 of the Convention, the applicants requested that, without prejudice to any other measures that the respondent Government, subject to the supervision of the Committee of Ministers, may deem appropriate, individual measures be applied which would ensure restitutio in integrum in their case. In particular, they referred to the case of M.D. and Others v. Malta (no. 64791/10, 17 July 2012, §§ 85-90, with further references) and requested that the Court order the respondent Government to undertake all necessary and appropriate measures in order to restore and protect personal contact between R. and the applicants.",
"141. The Government argued that, by requesting individual measures, the applicants were encroaching on the competence of the Committee of Ministers.",
"142. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( restitutio in integrum ). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B ).",
"143. Having regard to the established principles cited above and to the particular circumstances of the case, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention."
] |
17 | Mikulić v. Croatia | 7 February 2002 | This case concerned a child born out of wedlock who, together with her mother, filed a paternity suit. The applicant complained that Croatian law did not oblige men against whom paternity suits were brought to comply with court orders to undergo DNA tests, and that the failure of the domestic courts to decide her paternity claim had left her uncertain as to her personal identity. She also complained about the length of the proceedings and the lack of an effective remedy to speed the process up. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It observed in particular that, in determining an application to have paternity established, the courts were required to have regard to the basic principle of the child’s interests. In the present case, it found that the procedure available did not strike a fair balance between the right of the applicant to have her uncertainty as to her personal identity eliminated without unnecessary delay and that of her supposed father not to undergo DNA tests. Accordingly, the inefficiency of the courts had left the applicant in a state of prolonged uncertainty as to her personal identity. The Court further held that there had been a violation of Articles 6 § 1 (right to a fair hearing within a reasonable time) and a violation of Article 13 (right to an effective remedy) of the Convention. | Children’s rights | Right to know one’s origins and actions to establish a legal parent-child relationship | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the applicant and her mother filed a civil suit against H.P. before the Zagreb Municipal Court ( Općinski sud u Zagrebu ) in order to establish paternity.",
"9. At the hearing on 17 June 1997 the Municipal Court pronounced judgment by default against the defendant. The adoption of such a judgment, however, is expressly prohibited by the Marriage and Family Act ( Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 and 1999) in “civil-status matters” ( statusni sporovi ). On 1 July 1997 the defendant appealed against that judgment.",
"10. At the hearing on 6 October 1997 the Zagreb Municipal Court annulled its own judgment. The next hearing was scheduled for 9 December 1997.",
"11. Meanwhile, H.P. filed a motion accusing the presiding judge of bias, which was allowed on 27 January 1998 by the President of the Zagreb Municipal Court. Consequently, on 23 February 1998 the case was transferred to another judge.",
"12. The hearing scheduled for 18 June 1998 was adjourned owing to the absence of H.P.'s counsel.",
"13. The hearing scheduled for 14 July 1998 was adjourned as H.P.'s counsel had died.",
"14. At the hearing on 14 October 1998 H.P.'s new counsel argued that the applicant's mother had had relations with persons other than H.P. at the relevant time ( exceptio plurium concubentium ) and invited the court to summon several witnesses.",
"15. At the hearing on 21 January 1999 only two witnesses were heard, as the other witnesses failed to appear.",
"16. At the next hearing on 18 March 1999 the court ordered a DNA blood test. The appointment at the relevant clinic was scheduled for 21 May 1999, but H.P. failed to appear.",
"17. The next appointment was scheduled for 18 June 1999, but H.P. informed the court that he would be absent from 1 June 1999 until 15 September 1999.",
"18. On 19 July 1999 the court ordered another appointment for the blood test, which was scheduled for 27 September 1999, but H.P. again failed to appear.",
"19. On 13 October 1999 the court ordered a fourth appointment, scheduled for 22 October 1999, but H.P. informed the court that he would be absent that day.",
"20. On 28 November 1999 the court ordered a fifth appointment, scheduled for 6 December 1999, and once again H.P. failed to appear.",
"21. The next hearing scheduled for 17 February 2000 was adjourned as H.P. did not appear.",
"22. At the hearing on 29 February 2000 the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for 25 April 2000, at which H.P. failed to appear.",
"23. The next hearing, scheduled for 5 June 2000, was adjourned, as H.P. did not appear.",
"24. On 12 July 2000 the court concluded the trial.",
"25. On 3 October 2000 the applicant's counsel received the Municipal Court's judgment of 12 July 2000 establishing the defendant's paternity and granting the applicant maintenance. The first-instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant's claim. On 27 November 2000 H.P. appealed against the judgment.",
"26. On 3 April 2001 the Zagreb County Court ( Županijski sud u Zagrebu ) quashed the first-instance judgment and remitted the case for retrial. The appellate court found that the first-instance court had failed to establish all the relevant evidence and that H.P.'s paternity could not have been established primarily on his avoidance of DNA tests. It ordered the first-instance court to hear several witnesses who, as alleged by H.P., had had intimate relationships with the applicant's mother during the critical period.",
"27. On 15 May and 13 July 2001 the applicant requested the President of the Supreme Court to speed up the proceedings.",
"28. The hearings scheduled for 26 July and 30 August 2001 in the Zagreb Municipal Court were adjourned because H.P. and his counsel did not appear.",
"29. At the hearing on 27 September 2001 H.P.'s counsel accused the presiding judge of bias.",
"30. On 19 November 2001 the court of first instance concluded the trial and gave judgment, establishing the defendant's paternity and granting the applicant maintenance. It found that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father.",
"31. On 7 December 2001 the applicant filed an appeal against the first-instance judgment, objecting to the amount of maintenance H.P. would have to pay her. H.P. also appealed against the judgment.",
"32. It appears that the proceedings are currently pending before the appellate court."
] | [
"II. RELEVANT DOMESTIC LAW",
"33. Section 8 of the Civil Procedure Act ( Zakon o građanskom postupku – Official Gazette nos. 53/1991, 91/1992 and 112/1999) provides that courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole and taking into consideration the results of the overall proceedings.",
"34. Section 59(4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 – “the Constitutional Court Act” ( Ustavni zakon o Ustavnom sudu )) reads as follows:",
"“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party's constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"35. The applicant alleged that the proceedings to establish H.P.'s paternity had not been concluded within a reasonable time, as required by Article 6 § 1 of the Convention, the relevant part of which reads:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”",
"A. Period to be taken into account",
"36. The Court observes that the proceedings commenced on 30 January 1997, when the applicant lodged a civil action to have H.P.'s paternity established by the Zagreb Municipal Court. However, the period which falls within the Court's jurisdiction did not begin on that date, but on 6 November 1997, after the Convention entered into force in respect of Croatia (see Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, pp. 18-19, § 53). The proceedings are currently pending before the appellate court. Thus they have so far lasted about five years, of which a period of about four years and two months falls to be examined by the Court.",
"37. The Court further notes that, in order to determine the reasonableness of the length of time in question, regard must also be had to the state of the case on 5 November 1997 (see, among other authorities, Styranowski v. Poland, judgment of 30 October 1998, Reports of Judgments and Decisions 1998-VIII). In this connection, the Court notes that at the time when the Convention came into force in respect of Croatia the proceedings had lasted nine months.",
"B. Applicable criteria",
"38. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation (see, as recent authorities, Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999, and Horvat v. Croatia, no. 51585/99, § 52, ECHR 2001-VIII).",
"C. Submissions of the parties",
"39. The Government submitted that special urgency was required in family proceedings. However, such proceedings were of a delicate nature due to the relationship between the parties involved. One of the principles of civil proceedings was that the courts enjoyed discretionary power to evaluate all relevant evidence and reach their conclusion as to the facts of the case. In this connection, the Government contended that in the present case the court had assessed the facts on the basis of the evidence produced by the parties.",
"40. As to the behaviour of the applicant, they contended that she had contributed to the extended length of the proceedings since, even though she had asked the court to carry out a medical assessment and blood analysis in her initial claim, she had not specifically asked that DNA tests be carried out until the proceedings had already lasted ten months. In addition, she had not submitted further evidence until February 2000.",
"41. The applicant contested the Government's submissions and argued that in her initial claim she had proposed that the blood analysis be carried out and that DNA tests were part of such an analysis.",
"42. As to the conduct of the courts, the Government submitted that the court had been prevented from proceeding speedily with the case as a result of the behaviour of the defendant, who had repeatedly ignored appointments for DNA tests and failed to attend court hearings.",
"43. The applicant argued that it had been for the court to ensure that the defendant complied with its orders. She further argued that the court had adopted a judgment by default, in breach of the provisions governing paternity disputes, and had thus provoked a delay in the proceedings, allowing the defendant to ask for the removal of the presiding judge. Eight months had elapsed between the adoption of the judgment and the date on which the judgment was quashed and the case transferred to another judge.",
"D. The Court's assessment",
"44. The Court reiterates that particular diligence is required in cases concerning civil status and capacity (see Bock v. Germany, judgment of 29 March 1989, Series A no. 150, p. 23, § 49). In view of what was at stake for the applicant in the present case, that is her right to have her paternity established or refuted and thus to have her uncertainty as to the identity of her natural father eliminated, the Court considers that the competent national authorities were required by Article 6 § 1 to act with particular diligence in ensuring the progress of the proceedings.",
"45. The Court notes that in the period to be taken into account the proceedings were altogether pending before the first-instance court for about four years and have been pending before the appellate court for about four months. The first-instance court scheduled fifteen hearings, six of which were adjourned owing to the defendant's absence. Not a single hearing was adjourned on account of the applicant's conduct. The first-instance court scheduled six appointments for DNA tests and the defendant did not attend any of those appointments. As to the Government's contention that the first-instance court was impeded in progressing with the proceedings because the defendant did not comply with the court's orders to attend the hearings and the DNA tests, the Court reiterates that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see, among other authorities, G.H. v. Austria, no. 31266/96, § 20, 3 October 2000).",
"46. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court considers that the length of the proceedings complained of, which are still pending, failed to satisfy the reasonable time requirement. There has, accordingly, been a violation of Article 6 § 1 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"47. The applicant further complained that her right to respect for her private and family life had been violated because the domestic courts had been inefficient in deciding her paternity claim and had therefore left her uncertain as to her personal identity. She relied on Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Applicability of Article 8",
"48. The Government maintained that the length of the paternity proceedings did not fall within the scope of Article 8 of the Convention. They argued that in the present case H.P. had not expressed a willingness to establish any kind of family relationship with the applicant.",
"49. The applicant submitted that she had been kept in a state of prolonged uncertainty as to her personal identity on account of the inefficiency of the domestic courts. Had the court promptly decided her case, her family relationship with her father might have been established at an earlier stage in her life.",
"50. The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect” for “private and family life” set forth in Article 8 of the Convention.",
"51. As regards paternity proceedings, the Court has held on numerous occasions that such proceedings do fall within the scope of Article 8 (see, for example, Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 13, § 33, and Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 18, § 45). In this connection, the Court has held that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships but may also encompass other de facto “family ties” where sufficient constancy is present (see, for example, Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, § 30).",
"52. The present case differs from the paternity cases cited above in so far as no family tie has been established between the applicant and her alleged father. The Court reiterates, however, that Article 8, for its part, protects not only “family” but also “private” life.",
"53. Private life, in the Court's view, includes a person's physical and psychological integrity and can sometimes embrace aspects of an individual's physical and social identity. Respect for “private life” must also comprise to a certain degree the right to establish relationships with other human beings (see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29).",
"There appears, furthermore, to be no reason of principle why the notion of “private life” should be taken to exclude the determination of the legal relationship between a child born out of wedlock and her natural father.",
"54. The Court has held that respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual's entitlement to such information is of importance because of its formative implications for his or her personality (see Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 16, § 39).",
"55. In the instant case the applicant is a child born out of wedlock who is seeking, by means of judicial proceedings, to establish who her natural father is. The paternity proceedings which she has instituted are intended to determine her legal relationship with H.P. through the establishment of the biological truth. Consequently, there is a direct link between the establishment of paternity and the applicant's private life.",
"The facts of the case accordingly fall within the ambit of Article 8.",
"B. Compliance with Article 8",
"56. The applicant argued in effect not that the State should refrain from acting but rather that it should take steps to ensure adequate measures, in the context of a paternity dispute, to efficiently resolve her uncertainty as to her personal identity. Thus, the applicant complained in substance not of something that the State did, but of its lack of action.",
"57. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, p. 422, § 33).",
"58. However, the boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see, for instance, Keegan, cited above, p. 19, § 49, and M.B. v. the United Kingdom, no. 22920/93, Commission decision of 6 April 1994, Decisions and Reports 77-A, p. 116).",
"59. The Court reiterates that its task is not to substitute itself for the competent Croatian authorities in determining the most appropriate methods for establishing paternity through judicial proceedings in Croatia, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Croatia, in handling the applicant's paternity claim, has been in breach of its positive obligation under Article 8 of the Convention (see, for instance, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; and, mutatis mutandis, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).",
"60. In the present case the only avenue by which the applicant may establish whether or not H.P. is her biological father is through judicial proceedings before a civil court, since H.P. denies paternity.",
"61. The Court notes in this connection that no measures exist under domestic law to compel H.P. to comply with the first-instance court's order that DNA tests be carried out. Nor is there any direct provision governing the consequences of such non-compliance. It is true, however, that in civil proceedings, pursuant to section 8 of the Civil Procedure Act, the courts must give judgment according to their own discretion after assessing the evidence presented individually and as a whole. The courts are, in this respect, free to reach conclusions taking into consideration the fact that a party has been obstructing the establishment of certain facts.",
"62. After three and a half years, during which time H.P. failed to appear at six appointments for DNA testing, the first-instance court concluded that H.P. was indeed the applicant's father. It based its conclusion on the testimony of the applicant's mother and on the fact that H.P. had been avoiding DNA tests. The appellate court, on the other hand, found this evidence insufficient for establishing his paternity. In this connection, the Court observes that a procedural provision of a general character, giving discretionary power to courts to assess evidence, is not in itself a sufficient and adequate means for establishing paternity in cases where the putative father is avoiding the court's order that DNA tests be carried out.",
"63. In addition, the first-instance court has been ineffective in resolving the question of paternity through the assessment of other relevant evidence. The Government argued that this was due to H.P.'s refusal to cooperate in the proceedings. It appears, however, that the court has been unable to find adequate procedural means to prevent H.P. from impeding the proceedings.",
"64. In the Court's opinion, persons in the applicant's situation have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity. On the other hand, it must be borne in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing.",
"The States parties to the Convention have different solutions to the problem that arises when a putative father refuses to comply with court orders to submit to the tests which are necessary to establish the facts. In some States the courts may fine or imprison the person in question. In others, non-compliance with a court order may create a presumption of paternity or constitute contempt of court, which may entail criminal prosecution.",
"A system like the Croatian one, which has no means of compelling the alleged father to comply with a court order for DNA tests to be carried out, can in principle be considered to be compatible with the obligations deriving from Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking the establishment of paternity must be secured when paternity cannot be established by means of DNA testing. The lack of any procedural measure to compel the alleged father to comply with the court order is only in conformity with the principle of proportionality if it provides alternative means enabling an independent authority to determine the paternity claim speedily. No such procedure was available to the applicant in the present case (see, mutatis mutandis, Gaskin, cited above, p. 20, § 49).",
"65. Furthermore, in determining an application to have paternity established, the courts are required to have regard to the basic principle of the child's interests. The Court finds that the procedure available does not strike a fair balance between the right of the applicant to have her uncertainty as to her personal identity eliminated without unnecessary delay and that of her supposed father not to undergo DNA tests, and considers that the protection of the interests involved is not proportionate.",
"66. Accordingly, the inefficiency of the courts has left the applicant in a state of prolonged uncertainty as to her personal identity. The Croatian authorities have therefore failed to secure to the applicant the “respect” for her private life to which she is entitled under the Convention.",
"There has, consequently, been a violation of Article 8 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"67. The applicant also submitted that she had no effective remedy whereby she could raise the issue of the excessive length of the proceedings in her case. Furthermore, the domestic legal system did not provide for any measure that would oblige defendants in paternity disputes to comply with a court order for DNA tests to be carried out. In her view, that amounted to a violation of Article 13 of the Convention, which provides:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"68. The Government invited the Court to find this part of the application manifestly ill-founded. They contended that the applicant had the possibility of lodging an application under section 59(4) of the Constitutional Court Act. In the Government's view, that option represented an effective remedy in respect of the length of the proceedings in the applicant's case.",
"69. The Court observes that the applicant's complaint under Article 13 of the Convention is twofold. Firstly, she complained that she had no effective remedy in respect of the length of the proceedings.",
"70. In this connection, the Court notes that in Horvat it found that section 59(4) of the Constitutional Court Act did not represent an effective remedy in respect of the length of civil proceedings (see Horvat, cited above, § 65).",
"71. Similarly, the Court finds that in the present case there has been a violation of Article 13 of the Convention in so far as the applicant has no domestic remedy whereby she may enforce her right to a “hearing within a reasonable time” as guaranteed by Article 6 § 1 of the Convention.",
"72. As to her second complaint under Article 13, the applicant contended that no measures existed under domestic law to ensure the presence of the defendant before the court in paternity proceedings.",
"73. The Court has already taken this aspect into account in its considerations under Article 8 of the Convention. Having regard to its findings with respect to Article 8 (see paragraphs 57-66 above), it does not find it necessary to examine the same issue under Article 13 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"74. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"75. The applicant sought an award of German 3,000,000 marks in compensation for the suffering she had endured as a result of the violations of the Convention.",
"76. The Government asked the Court to assess the amount of just satisfaction to be awarded on the basis of its case-law in civil cases in which normal diligence was required.",
"77. The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of the length of the proceedings. Furthermore, the Court has found that the applicant was the victim of procedural defects in the proceedings in issue, this aspect being intimately related to the failure of the State to comply with its positive obligations relating to the right to respect for private life.",
"78. The Court thus concludes that the applicant has sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant 7,000 euros.",
"B. Costs and expenses",
"79. The applicant, who received legal aid from the Council of Europe in connection with the preparation of her case, did not seek reimbursement of costs and expenses. Accordingly, the Court considers that no award should be made under this head.",
"C. Default interest",
"80. According to the information available to the Court, the statutory rate of interest applicable in Croatia at the date of adoption of the present judgment is 18% per annum."
] |
18 | Jäggi v. Switzerland | 13 July 2006 | The applicant was not allowed to have DNA tests performed on the body of a deceased man whom he believed to be his biological father. He was therefore unable to establish paternity. | The Court held that there had been a violation Article 8 (right to respect for private life) of the Convention, on account of the fact that it had been impossible for the applicant to obtain a DNA analysis of the mortal remains of his putative biological father. It observed in particular that the DNA test was not particularly intrusive, the family had cited no philosophical or religious objections and, if the applicant had not renewed the lease on the deceased man’s tomb, his body would already have been exhumed. | Children’s rights | Right to know one’s origins and actions to establish a legal parent-child relationship | [
"4. The applicant was born in 1939 and lives in Geneva.",
"5. On 14 July 1939, before the applicant ’ s birth, the State-appointed guardian brought an action against A.H., the applicant ’ s putative biological father, seeking a declaration of paternity and payment of a contribution towards his maintenance. A.H. admitted that he had had sexual relations with the applicant ’ s mother but denied paternity.",
"6. On 26 July 1939, after the applicant ’ s birth, his mother declared on registering the birth that the father was A.H., with whom she had had sexual relations during the period of conception.",
"7. On 30 January 1948 the Geneva Court of First Instance dismissed the action for a declaration of paternity. In the absence of an appeal, the judgment became final.",
"8. In 1958 the applicant, who had been placed with a foster family, met his mother, who informed him that his father was A.H. According to the applicant, he had regular contact with his father and received presents from him and a monthly payment of 10 Swiss francs ( ( CHF ) – 6.40 euros (EUR)) until he reached the age of majority. A .H. and his family denied those allegations. Only A.H. ’ s legitimate son admitted that he had received a telephone call from the applicant after A.H. ’ s death.",
"9. Furthermore, A.H. always refused to undergo tests to establish his paternity. In 1976, shortly after his death, a blood-type analysis carried out at the applicant ’ s request did not rule out his being the latter ’ s father.",
"10. In 1997 the applicant contacted the Geneva University Institute of Forensic Medicine to have a private paternity test carried out, but his request was refused.",
"11. On 3 December 1997 the applicant successfully applied to renew the lease for A.H. ’ s tomb until 2016 for the sum of CHF 2,600 (EUR 1,657).",
"12. On 6 May 1999 the applicant applied to the Canton of Geneva Court of First Instance for revision of the judgment of 30 January 1948. In the course of the proceedings he also requested a DNA test on the mortal remains of A.H.",
"13. On 25 June 1999 the Court of First Instance refused the request for a DNA test.",
"14. On 2 September 1999 the Canton of Geneva Court of Justice rejected the applicant ’ s application on the ground that it was impossible to obtain a declaration of paternity without also amending the register of births, deaths and marriages.",
"15. The Court of Justice argued that the applicant was not entitled to such an amendment of the register as a result of the 1976 revision of the Civil Code abolishing the exceptio plurium constupratorum, a defence which the putative biological father could use in a paternity suit. However, in his application to the Court of First Instance the applicant had sought revision of the 1948 judgment, in which the exceptio plurium had been relied on to the benefit of A.H.",
"16. The Court of Justice noted that before 1978 (when the revised Civil Code had come into force), an illegitimate child who was under ten years of age on 1 January 1978 had had the option of converting a maintenance claim into a civil action (paternity suit) where the exceptio plurium had been raised. However, this was no longer permitted under the revised Civil Code.",
"17. The Court of Justice accordingly held that, even supposing that the applicant had been awarded maintenance in 1948, he was no longer entitled to have the register of births, deaths and marriages amended, firstly because the law had changed, and secondly because he had been born more than ten years before the end of the transition period between the old and new laws.",
"18. His request for evidence to be taken by means of a DNA test was therefore refused.",
"19. On 22 December 1999 the Federal Court adopted a judgment, served on 18 May 2000, in which it rejected the applicant ’ s application on the following grounds:",
"“The right to know one ’ s parentage cannot be absolute in scope but must be weighed against the interests relating to protection of the personal freedom of others – in the instant case, the right of the deceased, deriving from human dignity, to protect his remains from interferences contrary to morality and custom, and the right of the close relatives to respect for the deceased and the inviolability of his corpse. ...",
"The right to know one ’ s parents is generally linked to the right to be raised by them. The applicant, who is 60 years old, has been able to develop his personality and pursue a large portion of his existence without suffering any medically attested damage to his physical or mental health as a result of his uncertainty as to his parentage, despite the vicissitudes of his childhood and adolescence. On the other hand, while the reasons of family devotion opposing the exhumation of the mortal remains of the late [A.H.] are understandable, the respondents have not advanced any religious or philosophical grounds in support of their position; in particular, they have not argued that they would have renewed the lease on their relative ’ s tomb had the applicant not done so.",
"However, in weighing up the conflicting interests, the refusal of the application for an expert examination may be upheld since, in the absence of any consequences of a civil-law nature, the applicant has not established that he has suffered sufficiently serious damage to his psychological well-being, as protected by the right to personal freedom, to justify the evidentiary measure requested. The measure appears excessive in view of the principle of proportionality, having regard to the applicant ’ s particular circumstances, from which it cannot be concluded that his personality or mental stability might be seriously threatened by the uncertainty that may still persist as regards his parentage, in spite of all the information in his possession suggesting that [A.H.] very probably is his father. The Court of Justice was therefore entitled to restrict the applicant ’ s personal freedom by taking into consideration that of the respondents, in view of the lack of public interest in having this parental tie established and the disproportionate nature of the steps required to establish it.”",
"20. Lastly, the Federal Court observed that there were no consequences of a civil-law nature that could justify implementing the measure sought."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"21. The applicant complained that he had been unable to have a DNA test carried out on a deceased person in order to ascertain whether the person was his biological father. He alleged that he had suffered a violation of his rights under Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"22. Relying on the Court ’ s position in Haas v. the Netherlands (no. 36983/97, § 43, ECHR 2004 ‑ I), the Government submitted, as their main argument, that Article 8 was not applicable in the instant case, seeing that the case related solely to obtaining evidence.",
"23. The applicant relied on the judgments in Van Kück v. Germany (no. 35968/97, § 69, ECHR 2003 ‑ VII), Pretty v. the United Kingdom (no. 2346/02, § 61, ECHR 2002 ‑ III), Mikulić v. Croatia (no. 53176/99, § 54, ECHR 2002 ‑ I), and Bensaid v. the United Kingdom (no. 44599/98, § 47, ECHR 2001 ‑ I). He submitted that the right to know one ’ s parentage lay at the heart of the right to respect for private life.",
"24. The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect” for “private and family life” set forth in Article 8.",
"25. The Court has held on numerous occasions that paternity proceedings fall within the scope of Article 8 (see Mikulić, cited above, § 51). In the instant case the Court is not called upon to determine whether the proceedings to establish parental ties between the applicant and his putative father concern “family life” within the meaning of Article 8, since in any event the right to know one ’ s ascendants falls within the scope of the concept of “private life”, which encompasses important aspects of one ’ s personal identity, such as the identity of one ’ s parents (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003 ‑ III, and Mikulić, cited above, § 53). There appears, furthermore, to be no reason of principle why the notion of “private life” should be taken to exclude the determination of a legal or biological relationship between a child born out of wedlock and his natural father (see, mutatis mutandis, Mikulić, ibid.).",
"26. In the instant case the applicant is a child born out of wedlock who is seeking, through the courts, to ascertain the identity of his natural father. Contrary to the circumstances in Haas, cited above, the proceedings brought by the applicant were intended solely to establish the biological ties between him and his putative father and did not in any way concern his inheritance rights. Consequently, there is a direct link between the establishment of paternity and the applicant ’ s private life.",
"The facts of the case accordingly fall within the ambit of Article 8 of the Convention.",
"27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"28. The applicant submitted that the refusal of his request for an expert opinion in order to establish his biological ties with his putative father amounted to a violation of his right under Article 8. Now that scientific progress allowed positive proof of paternity to be provided by DNA tests (whereas at the time of the 1948 judgment, blood analyses had merely afforded the possibility of ruling out paternity), the State should have authorised him to have such a test carried out. The applicant considered that his interest in ascertaining the identity of his biological father prevailed over that of the deceased ’ s legitimate family in opposing the taking of DNA samples.",
"29. The Government pointed out that the applicant had had the opportunity to exercise his right to establish his parentage by means of the proceedings that had ended on 30 January 1948.",
"30. The Government further submitted that there had been no interference, since Article 8 did not impose any absolute positive obligations on the State. In the instant case, contesting a judicial decision that had become final in 1948 would be contrary to legal certainty and would undermine the legitimate confidence placed by the public in the courts.",
"31. As to whether any interference that might have occurred had pursued a legitimate aim and been necessary, the applicant ’ s interest in obtaining information about his ascendants carried less weight, in the Government ’ s submission, than either the deceased ’ s interest in ensuring that his clearly expressed wish was respected, or his right to respect for his private life, which included both the inviolability of his body and the interest in protecting his remains from interferences that were contrary to morality and custom. The Government also referred to the interest of the deceased ’ s close relatives in securing respect for their own family life and the general interest of the community in ensuring legal certainty. They emphasised that, as an adult, the applicant had fully developed his personality, that, contrary to the position in Gaskin v. the United Kingdom ( 7 July 1989, Series A no. 160), he had already been in possession of information about his father and, lastly, that he had not shown that he had particularly suffered as a result of the persisting uncertainty as to the identity of his father.",
"32. The Government submitted in conclusion that, when called upon to settle a dispute between various competing interests, the domestic authorities had not overstepped the margin of appreciation inherent in Article 8.",
"33. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see Mikulić, cited above, §§ 57-58, and Odièvre, cited above, § 40).",
"34. The Court observes that in the instant case the Swiss authorities refused to sanction a DNA test which would have allowed the applicant to know for certain that A.H., his putative father, was indeed his biological father. That refusal affected the applicant ’ s private life.",
"35. The Government justified the refusal to allow the DNA test by citing the need to preserve both legal certainty and the interests of others.",
"36. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation. In this connection, there are different ways of ensuring respect for private life, and the nature of the State ’ s obligation will depend on the particular aspect of private life that is in issue (see Odièvre, cited above, § 46).",
"37. The extent of the State ’ s margin of appreciation depends not only on the right or rights concerned but also, as regards each right, on the very nature of the interest concerned. The Court considers that the right to an identity, which includes the right to know one ’ s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests.",
"38. The Court considers that persons seeking to establish the identity of their ascendants have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity. At the same time, it must be borne in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see Mikulić, cited above, § 64). The Court must examine whether a fair balance was struck between the competing interests in this case.",
"39. In weighing up the different interests at stake, consideration should be given, on the one hand, to the applicant ’ s right to establish his parentage and, on the other hand, to the right of third parties to the inviolability of the deceased ’ s body, the right to respect for the dead, and the public interest in preserving legal certainty.",
"40. Although it is true that, as the Federal Court observed in its judgment, the applicant, now aged 67, has been able to develop his personality even in the absence of certainty as to the identity of his biological father, it must be admitted that an individual ’ s interest in discovering his parentage does not disappear with age, quite the reverse. Moreover, the applicant has shown a genuine interest in ascertaining his father ’ s identity, since he has tried throughout his life to obtain conclusive information on the subject. Such conduct implies mental and psychological suffering, even if this has not been medically attested.",
"41. The Court notes that the Federal Court observed that the deceased ’ s family had not cited any religious or philosophical grounds for opposing the taking of a DNA sample, a measure which is, moreover, relatively unintrusive. It should also be noted that it was thanks to the applicant that the lease on the deceased ’ s tomb was renewed in 1997. Otherwise, the peace enjoyed by the deceased and the inviolability of his mortal remains would already have been disturbed at that time. In any event, the deceased ’ s body will be exhumed when the current lease expires in 2016. The right to rest in peace therefore enjoys only temporary protection.",
"42. With regard to the deceased ’ s own right to respect for his private life, the Court would refer to its position in Estate of Kresten Filtenborg Mortensen v. Denmark (( dec .), no. 1338/03, ECHR 2006 -V ), in which it found that the private life of a deceased person from whom a DNA sample was to be taken could not be adversely affected by a request to that effect made after his death.",
"43. The Court notes that the preservation of legal certainty cannot suffice in itself as a ground for depriving the applicant of the right to ascertain his parentage, seeing that the granting of a paternity suit constitutes an exception to a transitional law dating from the 1970s which would affect him alone. Indeed, the Government themselves asserted that recognition of biological paternity would have no effect on the register of births, deaths and marriages.",
"44. It follows that, having regard to the circumstances of the case and the overriding interest at stake for the applicant, the Swiss authorities did not secure to him the respect for his private life to which he is entitled under the Convention.",
"There has therefore been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"45. The applicant submitted that he had had no effective remedy by which he could have asserted his right to respect for his private life. He alleged a violation of Article 13 of the Convention, which provides:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"46. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996 ‑ V ).",
"47. The Court observes that the applicant was able to raise his complaints before three judicial bodies, which addressed his submissions in duly reasoned judgments. Accordingly, the complaint under Article 13 of the Convention must be declared inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4.",
"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"48. Relying on Article 14 of the Convention taken in conjunction with Article 8, the applicant complained that he had been subjected to discrimination that had not been based on objective grounds in that the Federal Court had taken into account his state of health and advanced age as reasons for justifying the refusal to perform a DNA test.",
"49. Article 14 of the Convention provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"50. The Court observes that this complaint is closely linked to the complaint under Article 8. It should therefore be declared admissible.",
"B. Merits",
"51. In view of its reasoning under Article 8 of the Convention, the Court does not consider it necessary to examine this complaint separately.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"52. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"53. The applicant claimed 100,000 Swiss francs ( ( CHF ) – 64, 842. 40 euros (EUR)) in respect of non-pecuniary damage.",
"54. The Government noted that the applicant had not submitted any claim in respect of pecuniary damage. As to non-pecuniary damage, they contended that the finding of a violation of Article 8 of the Convention would in itself constitute just satisfaction.",
"55. The Court considers that the finding of a violation of Article 8 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.",
"B. Costs and expenses",
"56. The applicant also claimed CHF 46,370.80 (EUR 30,068) for the costs and expenses incurred before the domestic courts and CHF 23,778.10 (EUR 15,418.30) for the proceedings before the Court.",
"57. The Government submitted that the sum of CHF 3,000 (EUR 1,939.86) would cover all the costs and expenses relating to the proceedings at domestic level and before the Court.",
"58. According to the Court ’ s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and were reasonable as to quantum. In the instant case, and having regard to the fact that the applicant was granted legal aid for the proceedings before it, the Court considers it reasonable to award him the sum of EUR 5,000 in respect of all his costs, less the sum of EUR 701 which the applicant has already received in legal aid.",
"C. Other measures sought by the applicant",
"59. The applicant asked the Court to find that he was entitled to apply to reopen the proceedings in the relevant Swiss courts in order to secure respect for his right to establish his parentage.",
"60. The Court observes that, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see Sejdovic v. Italy [GC], no. 5 6581/00, § 119, ECHR 2006 ‑ II ).",
"D. Default interest",
"61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
19 | Godelli v. Italy | 25 September 2012 | This case concerned the confidentiality of information concerning a child’s birth and the inability of a person abandoned by her mother to find out about her origins. The applicant maintained that she had suffered severe damage as a result of not knowing her personal history, having been unable to trace any of her roots while ensuring the protection of third-party interests. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, considering in particular that a fair balance had not been struck between the interests at stake since the Italian legislation, in cases where the mother had opted not to disclose her identity, did not allow a child who had not been formally recognised at birth and was subsequently adopted to request either non-identifying information about his or her origins or the disclosure of the birth mother’s identity with the latter’s consent. | Children’s rights | Right to know one’s origins and actions to establish a legal parent-child relationship | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, who was born on 28 March 1943 in Trieste, was abandoned by her mother at birth.",
"6. Her birth certificate records the following information:",
"“Today, 28 March 1943, at 7.30 a.m., a woman, who did not consent to being named, gave birth to a baby girl.”",
"7. The applicant was placed first in an orphanage and subsequently with the Godelli family. When she was six years old she was adopted by Mr and Mrs Godelli under the simple adoption ( affiliazione ) procedure, by a decision of the Trieste Guardianship Judge of 10 October 1949.",
"8. At the age of ten, after learning that she had been adopted, the applicant asked her adoptive parents to tell her who her birth parents were, but did not receive an answer. On an unspecified date she discovered that a young girl living in her village, who had been born on the same day as her, had been abandoned and subsequently adopted by another family under the simple adoption procedure. The applicant suspected that she was her twin sister. The adoptive parents of the two girls prohibited any contact between them.",
"9. The applicant stated that she had had a very difficult childhood because she had been unable to find out her origins.",
"10. In 2006 the applicant requested information about her origins from the Trieste Register Office, in accordance with section 28 of Law no. 184 of 4 May 1983 (Adoption Act: “Law no. 184/1993”), the regulations governing simple adoption having been repealed by that Law. The Register Office gave the applicant her birth certificate, on which her birth mother’s name did not appear because she had not agreed to have her identity disclosed.",
"11. On 19 March 2007 the applicant lodged an application with the Trieste City Court, under Article 96 of Presidential Decree no. 396/2000, seeking rectification of her birth certificate. On 4 May 2007 the court declined jurisdiction and dismissed the application on the ground that section 28(5) of Law no. 184/1983 provided that where persons aged over twenty-five were seeking access to information about their birth parents the court with the appropriate jurisdiction was the Family Court.",
"12. On 5 June 2007 the applicant lodged an application with the Trieste Family Court. On 11 June 2008 the court dismissed her application on the ground that, under section 28(7) of Law no. 184/983, she was prohibited from gaining access to information about her origins because her mother, at the time of the applicant’s birth, had not agreed to have her identity disclosed.",
"13. The applicant appealed to the Court of Appeal, which dismissed her appeal by a decision of 23 December 2008.",
"14. The court observed, in particular, that the Family Court had stressed the fact that the applicant’s birth mother had requested to keep her identity secret and that it had therefore correctly applied section 28(7) of Law no. 184 of 1983, even though the applicant had been adopted under a simple adoption order, as simple adoption did nevertheless create a family status. The Court of Appeal found that section 28(7) was designed to guarantee respect for the mother’s wishes. The prohibition on allowing the applicant access to information about her origins also served a public interest.",
"15. The applicant did not lodge an appeal on points of law."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE AND COMPARATIVE LAW",
"A. Domestic law and practice",
"16. Under Article 250 of the Civil Code, one of the parents may decide not to recognise his or her child. In order to exercise that right, the mother must, at the time of the birth, request the hospital to keep her identity secret. In such a case a medical file containing medical information about the mother and child is drawn up. Only the child’s general practitioner may have access to the file, with the permission of the child’s guardian.",
"17. Simple adoption (affiliazione ) was created in 1942 in order to provide assistance to abandoned or parentless children aged under eighteen. Unlike full adoption, this did not create an effective family relationship and the person being adopted did not have to be childless; however, he or she did have to be aged under eighteen. A simple adoption order could be requested by: the person with whom the child had been placed, the Health and Social Security Department, or the person who had been raising the child on their own initiative.",
"18. The Articles of the Civil Code providing for simple adoption were repealed as a result of the entry into force of Law no. 184 of 4 May 1983 (subsequently revised by Law no. 149 of 2001 and by Legislative Decree no. 196 of 30 June 2003).",
"19. Section 27 of Law no. 184/1983 guarantees the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority.",
"20. Under section 28(7) of Law no. 184/1983, a mother who decides not to keep her child can give birth in a hospital and at the same time remain anonymous on the declaration of birth. That anonymity lasts one hundred years, after which access to the birth certificate becomes possible.",
"21. An adoption order, once issued by the court, is sent to the register office so that a note can be made in the margin of the birth certificate. Any copies of the adopted child’s civil-status certificates must be issued with only the new family name shown and must bear no mention of the biological father or mother or any annotation regarding the adoption. However, where the registrar is expressly so authorised by the court, he or she may disclose this information.",
"22. Adopted children may have access to information about their origins and the identity of their birth parents on reaching the age of twenty-five. Where there are compelling and proven reasons relating to their physical and mental health, they may obtain that information on their majority. An application is lodged with the family court of their place of residence, which gives its decision after assessing the particular situation and hearing any persons whom it deems it necessary to hear.",
"23. Access to the information is refused where the birth mother has not recognised the child at birth and where one of the birth parents has declared their wish not to be named on the birth certificate or has given their consent to the adoption subject to remaining anonymous.",
"24. In a judgment of 16 November 2005, the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not wish to be identified was compatible with Articles 2, 3 and 32 of the Constitution.",
"25. The Constitutional Court observed, in particular, that section 28(7) of Law no. 184/1983 aimed to protect mothers who – in difficult circumstances – decided not to keep their child, by allowing them the possibility of giving birth in a hospital and at the same time remaining anonymous on the declaration of birth. In the court’s view, the mother could thus give birth in good conditions and was prevented from taking an irreversible decision. That possibility would be jeopardised if, under that provision, the mother were also to know that she might one day be called upon by the judicial authority to confirm or waive her decision.",
"26. Article 111 § 7 of the Italian Constitution provides: “Appeals to the Court of Cassation in cases of violations of the law are always admissible against judgments or measures affecting personal freedom pronounced by the ordinary or special courts”.",
"27. A government bill on access to personal origins has been before the Italian Parliament since 2008. The bill has two main objectives:",
"i) to permit and make provision for a procedure whereby confidentiality can be waived without calling into question the legal consequences of the decision initially taken by the mother;",
"ii) to make a waiver of confidentiality subject to the express agreement of the mother and child.",
"Under the provisions of the bill, anyone aged twenty-five or over who has been adopted and not recognised at birth may apply to the family court for access to information about their origins, subject to the mother’s agreement. Where the child seeks to discover his or her origins, the family court will take steps to find the mother and obtain her consent to waive confidentiality while respecting her private life. Where the mother has died and where the father has died or cannot be identified, the court will obtain information about their identity and any medical data that may disclose the existence of any transmissible hereditary diseases.",
"B. Right to knowledge of origins in the other member States of the Council of Europe",
"28. Whilst the system of anonymous or secret births would appear to exist in a minority of countries in Europe, it is not exceptional. In addition to France, where for many years the positive law has provided for a system of anonymous births, other national legislations, which are relatively recent as they have been drafted during the past decade, also provide for births in such conditions (Austria, Luxembourg, Russia, Slovakia).",
"In France the system of anonymous births tends to resemble that of secret births, like the practice in the Czech Republic where the secrecy of the birth mother’s identity is temporary, rather than definitive, as access to the relevant information is delayed.",
"29. The situation of children born anonymously or secretly is comparable to that of children who find it difficult, or even impossible, to gain access to their biological origins. The omission of the name of one or other or of both parents may sometimes be provided for by law, but this is very rare (Italy, Luxembourg, France). Usually factual circumstances will prevent the registrar from fully completing the child’s birth certificate; court proceedings are brought to determine paternity/maternity and may be available to persons other than the child alone. Notwithstanding the fact that such actions may not necessarily be effective in the particular circumstances, their very existence, allowing research to be done into personal ties maintained by a child with his birth family, provides a safeguard for the interested persons.",
"30. It should further be pointed out that the practice of abandoning children continues in modern forms: there is an undeniable increase in the number of “ windows ” or “baby hatches” reminiscent of foundling wheels in the Middle Ages. It is practically and materially impossible for the child to gain access to information about his or her birth family; the register of births will give a “ fictitious ” name to the child that bears no connection to that of its birth parents. The circumstances of the birth may be only partially secret (Spain, Hungary), but this will then necessarily mean that some data is available. Legal proceedings are generally available for children searching for their birth mother (Bulgaria, Croatia, the former Yugoslav Republic of Macedonia) or mothers who may be searching for their child (Ukraine).",
"31. In the case of full adoption, the child will often lose all contact with its birth family; the new parent-child relationship will totally erase any ties that may have existed during the child’s previous life with other adults (Austria, France, Monaco, Bulgaria, Russia and the former Yugoslav Republic of Macedonia). Access to the birth certificate is sometimes possible from a minimum age (Germany, Croatia, Hungary, Latvia, Portugal). The child may be authorised to gain access to a wider range of information (Bulgaria, Estonia, Lithuania, Switzerland, Spain), which often presupposes bringing legal proceedings whereby the competing interests may be examined.",
"32. The United Kingdom and Ireland have set up a mechanism making it easier for adopted persons to gain access to records about their adoption that goes a long way towards reconciling the right to information of the adopted child and respect for the private and family life of the mother or, more broadly, the birth family.",
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"33. The applicant complained of her inability to obtain non-identifying information about her birth family. She maintained that she had suffered severe damage as a result of not knowing her personal history. She stated that she had been denied access to non-identifying information about her birth mother and family that would have enabled her to trace some of her roots while ensuring the protection of third ‑ party interests. She also complained that, in weighing the two competing interests, the legislature had given preference to the mother’s interests alone without there being any possibility for the applicant to request, as in French law, a waiver of confidentiality of the mother’s identity subject to the latter’s agreement. She also submitted that she had been the subject of a simple adoption order, which had not created an effective family relationship. She relied on Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"34. The Government contested the applicant’s allegations.",
"B. The merits",
"1. The parties’ submissions",
"a) The applicant",
"35. The applicant submitted that, according to the Court’s case-law, Article 8 of the Convention applied to both the child and the mother, and the right to know one’s origins could not have the effect of simply denying a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions: the conflict was between two private interests – which moreover affected two adults each endowed with her own free will – which were not easily reconciled, on account of the complex and delicate nature of the question raised by the secrecy of information about a child’s origins regarding each and everyone’s right to their personal history, the choice of the birth parents, the existing family tie and the adoptive parents. She argued that the Court should seek to balance the competing interests and examine whether in the present case the Italian system had struck a reasonable balance between the competing rights and interests.",
"36. The applicant submitted that no other legislative system protected the mother’s anonymity to such an extent – giving birth anonymously and then abandoning the child anonymously – as that formalised and institutionalised in Italy.",
"37. Thus, the applicant pointed out that the United Nations Convention on the Rights of the Child of 20 November 1989 provided that a child had from birth “as far as possible, the right to know his or her parents” (Article 7). Likewise, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, which had been ratified by Italy, provided that the competent authorities of a Contracting State must ensure that information held by them concerning a child’s origins, in particular information concerning the identity of his or her parents, as well as the child’s medical history, would be preserved. The competent authorities were required to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State (Article 30).",
"38. In Recommendation 1443 (2000) of 26 January 2000 – “International adoption: respecting children’s rights” – the Parliamentary Assembly of the Council of Europe invited the States to “ensure the right of adopted children to learn of their origins at the latest on their majority and to eliminate from national legislation any clauses to the contrary”.",
"39. In the applicant’s submission, Italy had exceeded the limits of its margin of appreciation because the system in place did not take account of the child’s interests. In that connection she pointed out that the Italian system was very different from the French system that the Court had examined in the case of Odièvre v. France ([GC], no. 42326/98, ECHR 2003 ‑ III) as it precluded children from obtaining information about the identity of the mother and even non-identifying information about the mother and the birth family. The system did not provide for access to the file, even with the mother’s agreement. Accordingly, the child’s interest in knowing his or her origins was entirely sacrificed, without any balance being struck between the competing interests and without any possibility of weighing up the interests at stake. Italian law accepted the mother’s decision as a blanket ban on any request for information made by the applicant, regardless of the reason for or the legitimacy of that decision. A refusal by the mother was irreversibly and in all circumstances binding on the child, who had no legal means by which to contest her birth mother’s unilateral decision. The mother could thus, at her own discretion, bring a suffering child into the world who was condemned, for life, not to know its origins. A blind preference was given to the mother’s interests alone. Furthermore, the mother could also, in the same way, paralyse the rights of third parties, particularly those of the biological father or brothers and sisters, who could also be deprived of the rights guaranteed by Article 8 of the Convention.",
"40. The applicant complained that Italy had failed to guarantee respect for her private life on account of its legal system, which imposed a blanket ban on revealing any information about the birth mother where the latter had requested the non-disclosure of her identity and which, above all, prohibited the communication of non-identifying information about the mother, whether this be by the Child Welfare Service or any other body that could provide access to that information.",
"41. The applicant also submitted that although she had requested access to information about her origins once she had become an adult, a person’s vital interest in obtaining the information necessary to uncover the truth about an important aspect of his or her personal identity, which was an integral part of the right to private life safeguarded by Article 8 of the Convention, was a subjective and highly personal right and therefore not subject to statutory limitation.",
"b) The Government",
"42. The Government maintained that a woman’s right to request that the birth and her identity be kept secret was laid down by Article 250 of the Civil Code and section 28(7) of Law no. 184/1983, which guaranteed the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority. In the Government’s submission, this was an interference in accordance with the law which also served to protect a public interest.",
"43. The Government did not deny that the notion of private life, which was also referred to in Article 8 of the Convention, could sometimes encompass information enabling a person’s physical or social identity to be established. However, they pointed out that the State had not refused to furnish the applicant with information but had taken into account her mother’s refusal from the beginning to allow her identity to be disclosed.",
"44. With regard to the proportionality of the interference, the Government submitted that a request by the child for access to information about its identity could conflict with the freedom which all women enjoyed to decline their role as mother or to assume responsibility for the child. Under Italian law, maternity was considered an aspect of private life and received statutory protection on that account. That protection had been confirmed by the Constitutional Court, which had declared unfounded a request for a review of the constitutionality of section 28(7) of Law no. 184 of 1983. The Constitutional Court stated that Law no. 149 of 28 March 2001, which had amended Law no. 184/1983, had introduced into the new section 28(1) an obligation on the adoptive parents to inform the adopted child that he or she had been adopted. Whilst the adoptive parents had not enabled the applicant to find out her origins, it was noteworthy that the applicant had not decided to request information about her origins until 2006.",
"45. According to the Government, the Court should take account of the fact that the applicant, who was now nearly seventy years old, had been adopted when she was six and that non-consensual disclosure of her origins could be very difficult at this stage, having regard to the possible non-negligible risks for her health and her present family.",
"46. The Government submitted that the State enjoyed a margin of appreciation in the event of a conflict between two private interests. That margin of appreciation was enlarged in the instant case by the fact that no European consensus on the issue of a child’s access to information about its origins existed.",
"2. The Court’s assessment",
"47. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests, and in both contexts the State enjoys a certain margin of appreciation (see Mikulić, cited above, § 58).",
"48. As in the case of Odièvre (cited above), the applicant complained that the respondent State had failed to ensure respect for her private life by its legal system, which totally precluded an action to establish maternity being brought if the birth mother had requested confidentiality and, above all, prohibited the Child Welfare Service or any other body that could give access to such information from communicating non-identifying data about the mother.",
"49. The Court points out that it has already stated (see Odièvre, cited above, § 43) that the issue of access to information about one’s origins and the identity of one’s birth parents is not of the same nature as that of access to a case record concerning a child in care or to evidence of alleged paternity. The applicant in the present case is an adopted child who is trying to trace another person, her birth mother, by whom she was abandoned at birth and who has expressly requested that information about the birth remain confidential.",
"50. The Court notes that the expression “everyone” in Article 8 of the Convention applies to both the child and the mother. On the one hand, the child has a right to know its origins, that right being derived from the notion of private life (see paragraph 47 above). The child’s vital interest in its personal development is also widely recognised in the general scheme of the Convention (see, among many other authorities, Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Mikulić, cited above, § 64; or Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002-I). On the other hand, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied.",
"51. There is also a general interest at stake, as the Italian legislature has consistently sought to protect the mother’s and child’s health during pregnancy and birth and to avoid illegal abortions and children being abandoned other than under the proper procedure.",
"52. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Odièvre, cited above, § 46). The extent of the State’s margin of appreciation depends not only on the right or rights concerned but also, as regards each right, on the very nature of the interest concerned. The Court considers that the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up the competing interests.",
"53. The Court must examine whether a fair balance has been struck in the present case between the competing interests: on the one hand, the applicant’s right to have access to information about her origins and, on the other, the mother’s right to remain anonymous.",
"54. The Court has held that the States must be allowed to determine the means which they consider to be best suited to achieve the aim of reconciling the protection of the mother and the legitimate request on the part of the applicant to have access to information about her origins while protecting the general interest.",
"55. In the present case the Court observes that, unlike the situation in the case of Odièvre (cited above, § 48), the applicant did not have access to any information about her mother and birth family that would allow her to trace some of her roots, while ensuring the protection of third-party interests. The applicant’s request for information about her origins was totally and definitively refused, without any balancing of the competing interests or prospect of a remedy.",
"56. Whilst it is true that the applicant, who is now sixty-nine years old, has been able to develop her personality even in the absence of certainty as to the identity of her birth mother, it must be acknowledged that an individual’s interest in discovering his or her parentage does not disappear with age, quite the reverse. Moreover, the applicant has shown a genuine interest in ascertaining her mother’s identity, since she has tried to obtain conclusive information on the subject. Such conduct implies mental and psychological suffering, even if this has not been medically attested (see Jäggi v. Switzerland, no. 58757/00, § 40, ECHR 2006 ‑ X).",
"57. The Court notes that, unlike the French system examined in Odièvre, Italian law does not attempt to strike any balance between the competing rights and interests at stake. In the absence of any machinery enabling the applicant’s right to find out her origins to be balanced against the mother’s interests in remaining anonymous, blind preference is inevitably given to the latter. Moreover, in Odièvre the Court observed that the new Law of 22 January 2002 improved the prospect of obtaining agreement to waive confidentiality and would facilitate searches for information about a person’s biological origins as a National Council for Access to Information about Personal Origins had been set up. The law was of immediate application and now allowed the persons concerned to request disclosure of their mother’s identity, subject to the latter’s consent being obtained (see Odièvre, cited above, § 49), and to have access to non-identifying information. In Italy the bill amending Law no. 184/1983 has been before Parliament since 2008 (see paragraph 27 above).",
"58. In the present case the Court notes that where the birth mother has decided to remain anonymous, Italian law does not allow a child who was not formally recognised at birth and was subsequently adopted to request either access to non-identifying information concerning his or her origins or the disclosure of the mother’s identity. Accordingly, the Court considers that the Italian authorities failed to strike a balance and achieve proportionality between the interests at stake and thus overstepped the margin of appreciation which it must be afforded.",
"59. There has therefore been a violation of Article 8 of the Convention.",
"..."
] |
20 | Grzelak v. Poland | 15 June 2010 | The first two applicants, who were declared agnostics, were the parents of the third applicant. In conformity with the wishes of his parents, the latter did not attend religious instruction during his schooling. His parents systematically requested the school authorities to organise a class in ethics for him. However, no such class was provided throughout his entire schooling at primary and secondary level because there were not enough pupils interested. His school reports and certificates contained a straight line instead of a mark for “religion/ethics”. | The Court declared the application inadmissible (incompatible ratione personae) with respect to the parents and held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 9 of the Convention with respect to their child, finding in particular that the absence of a mark for “religion/ethics” on his school certificates throughout the entire period of his schooling had amounted to his unwarranted stigmatisation, in breach of his right not to manifest his religion or convictions. | Freedom of religion | Children’s education and parents’ religious convictions | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The first two applicants, Urszula and Czesław Grzelak, were born in 1969 and 1965 respectively. They are married and live in Sobótka. They are the parents of Mateusz Grzelak (“the third applicant”), who was born in 1991. The first two applicants are declared agnostics.",
"7. The third applicant began his schooling in primary school no. 3 in Ostrów Wielkopolski in 1998 (at the age of seven). In conformity with the wishes of his parents he did not attend religious instruction. It appears that he was the only pupil in his class who opted out of that subject. Religious instruction was scheduled in the middle of the school day, between various compulsory courses. The school, despite the wish expressed by the first two applicants, did not offer their son an alternative class in ethics. It appears that when other pupils in his class were following religious instruction the applicants'son was either left without any supervision in the corridor or spent his time in the school library or in the school club.",
"8. The Government, for their part, maintained that appropriate supervision had been provided for Mateusz Grzelak while religious instruction classes were in progress. The school had a general obligation of care and supervision towards all pupils who were on its premises at any time.",
"9. According to the first two applicants, their son was subjected to discrimination and physical and psychological harassment by other pupils on account of the fact that he did not follow religious instruction. For that reason, in the course of the third year of primary school the applicants moved their son to primary school no. 9 and subsequently to primary school no. 11 in the same town.",
"10. On 11 April 2001, when their son was in the third year of primary school, the applicants sent a letter to the headmistress of primary school no. 9 in Ostrów Wielkopolski. They drew her attention to the fact that their son had been ridiculed and harassed by other pupils in the class. They stated that their son was being discriminated against by the majority of his classmates because he did not attend religious education classes. The applicants requested the assistance of the school in resolving the issue.",
"11. According to the Government, the applicants did not wait for a reply to their letter of 11 April 2001 and moved their son to primary school no. 11. In a letter of 26 June 2001 the headmistress of primary school no. 9 explained that Mateusz Grzelak had attended that school from 23 October 2000 to 19 April 2001. She noted that he had frequently provoked his colleagues by mocking religious symbols and children who attended religious instruction. The class tutor had informed Mr and Mrs Grzelak about their son's behaviour but they had not responded. The headmistress explained further that the school did not ask for a written declaration as to children's attendance at religious instruction. It sufficed for a parent who did not wish for his or her child to attend religious instruction to report that fact to the class tutor.",
"12. The Government further maintained that Mr and Mrs Grzelak had requested primary school no. 11 to provide their son with a course in ethics. According to the Government, the headmistress of that school had contacted the Poznań Education Authority ( kuratorium oświaty ) to establish whether it was possible to provide such a course for an inter-school group. Since that was not possible owing to the lack of sufficient numbers of interested pupils and parents, the school proposed to the third applicant that he participate in alternative classes in the school club or school library. It appears that the applicants did not report any problems to the school concerning their son's education.",
"13. On 1 May 2001 the applicants sent a letter to the Minister of Education, stating that since the beginning of their son's education they had encountered religious intolerance and that the school authorities had failed to react. They put a number of questions to the Minister concerning the Ordinance on the organisation of religious instruction in State schools (see relevant domestic law and practice below). In particular, the applicants raised the following matters in their letter:",
"1. Why did some schools require declarations from parents as to whether their children would be following religious instruction?",
"2. Was the school obliged to organise a class in ethics just for one pupil?",
"3. Why should children like the applicants'son pass their time unproductively in the school club while other children were attending religious instruction or when the schools were closed for Lent retreat?",
"4. Did the fact that a child had a straight line instead of a mark for “religion/ethics” on a school report indicate that the Ordinance of 14 April 1992 of the Minister of Education on the organisation of religious instruction in State schools (“the Ordinance”) infringed the Education Act and human rights instruments?",
"5. What could parents do when their child was discriminated against and harassed for not having attended religious instruction?",
"14. On 29 May 2001 the Ministry of Education replied to the applicants. In respect of the issues raised by the applicants it informed them as follows:",
"Re question 1: Religious instruction and courses in ethics were organised at the parents'request, and where a declaration to that effect was asked for, it was for organisational reasons only.",
"Re question 2: If only one pupil was interested in following a course in ethics, then the school authorities should enquire whether it would be possible to follow that course in an inter-school group. If in a given municipality there was no such group, then the school had to arrange for supervision of the pupil during the religious education class.",
"Re question 3: In the case referred to above the school should organise other activities for pupils not following religious instruction or supervise them adequately by allowing them to do their homework or to use the library, etc.",
"Re question 4: Paragraph 9 of the Ordinance regulated the manner in which marks for “religion/ethics” were entered in school reports. That provision had been interpreted by the Constitutional Court in its judgment of 20 April 1993 (see relevant domestic law and practice below). The Constitutional Court had noted that the inclusion of marks for “religion/ethics” in a school report was a consequence of providing courses in those subjects in State schools. Furthermore, the Constitutional Court observed that this rule did not breach the right to freedom of conscience and religion.",
"Re question 5: Discrimination against pupils on the ground of their not having attended religious instruction amounted to a breach of the Ordinance and should be reported to the relevant education authorities.",
"15. The applicants also applied to the Ombudsman on 14 June 2001, alleging that in their son's case Articles 53 § 7 and 31 § 2 of the Constitution, Articles 9 and 14 of the Convention and various other provisions had been breached. The Ombudsman replied that he could not challenge the Ordinance again following the judgment of the Constitutional Court of 20 April 1993. The problems raised in their letter had more to do with the inappropriate behaviour of some teachers and pupils than the law itself.",
"16. On 17 October 2001 the applicants sent a letter to the President of the Republic. They requested him to amend the Ordinance with a view to providing guarantees for non-religious children. On 6 November 2001 the President's Office requested the Ministry of Education to reply to the applicants'letter.",
"17. On 10 December 2001 the Ministry of Education confirmed its position as set out in the letter of 29 May 2001. In addition to the issues already addressed, the Ministry replied to the applicants'complaint concerning the obligation to make a declaration as to whether the child would follow religious instruction. The Ministry informed the applicants that the school authorities could not require parents to make a “negative declaration”, that is, a declaration that their child would not follow religious instruction. Such a practice would contravene the provisions of the Ordinance and should be reported to the education authorities. The Ministry further informed the applicants that the parents'declaration could not be understood as a declaration concerning their beliefs.",
"18. The applicants submitted that they had made repeated requests to the school authorities, asking for their son to be allowed to follow a course in ethics instead of religious instruction. However, none of the primary schools attended by their son had provided a course in ethics. The refusals had been based on the lack of suitable teachers, financial reasons and insufficient numbers of pupils interested in following a course in ethics.",
"19. In September 2004 the third applicant began his secondary education.",
"20. On 16 July 2009 Mr and Mrs Grzelak complained to the Poznań Education Authority ( kuratorium oświaty ) that their son had not been offered a course in ethics at Ostrów Wielkopolski secondary school no. 2. Their petition ( skarga ) was referred to the Ostrów District ( powiat ) which, as the authority responsible for the school, was competent in the matter. On 27 August 2009 the Council of the Ostrów District dismissed the petition as unfounded. It found that Mateusz Grzelak was the only student in all the schools run by the Ostrów District whose parents wished him to follow a class in ethics. Accordingly, the conditions for the provision of such a class, as set out in the Ordinance, had not been met.",
"School reports of the third applicant",
"21. The school report of the third applicant for the first three years of primary school contained three subjects: behaviour ( zachowanie ), religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line.",
"22. The school report for the fourth year contained a list of courses that the third applicant had followed, including “religion/ethics”. Once again, there was a straight line against the subject “religion/ethics”.",
"23. In the school report for the fifth year in respect of the subject “religion/ethics” there was a straight line and the word ethics was crossed out. A similar situation applied to the primary school leaving certificate which the third applicant obtained in June 2004.",
"24. In September 2004 the third applicant began his secondary education in lower secondary school ( gimnazjum ) no. 4 in Ostrów Wielkopolski. His school reports for the first two years at that school and the leaving certificate of June 2007 had a straight line in the space for “religion/ethics”.",
"25. In September 2007 the third applicant began studying at Ostrów Wielkopolski secondary school no. 2 ( liceum ). On 4 September 2007 his parents requested the school to allow him to take a class in ethics, but it appears that no such class was organised. The school reports for the first and second year in that school had a straight line in the space for the subject “religion/ethics”. The third applicant failed German language in the second year of the liceum and from the school year 2009/2010 he moved to the Ostrów Wielkopolski vocational secondary school."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"1. Relevant constitutional provisions prior to the adoption of the 1997 Constitution",
"26. Article 82 of the Constitution of 1952 retained in force by the Constitutional Act of 17 October 1992 provided as follows:",
"“1. The Republic of Poland shall ensure to its citizens freedom of conscience and religion. The church and other religious organisations may freely exercise their religious functions. Citizens shall not be compelled not to participate in religious practices or rites. No one shall be compelled to participate in religious practices or rites.",
"2. The church shall be separated from the State. The principles of relations between the State and church and legal and financial position of religious organisations shall be determined by statutes.”",
"2. The Law of 17 May 1989 on guarantees for freedom of conscience and religion (“the Freedom of Conscience and Religion Act”)",
"27. Section 1 of the Freedom of Conscience and Religion Act provides in so far as relevant:",
"“1. Poland ... shall secure to its citizens freedom of conscience and religion.",
"2. Freedom of conscience and religion shall include freedom to choose one's religion or beliefs and freedom to manifest one's religion or beliefs, either alone or in community with others, in private and in public. ...”",
"Section 2 of the Act states, in so far as relevant:",
"“In the exercise of their freedom of conscience and religion, citizens may in particular: ...",
"(2)(a) belong, or not belong, to churches or other religious communities;",
"(3) express their religious opinions;",
"(4) raise their children in conformity with their religious convictions;",
"(5) remain silent as to their religion or convictions ... .”",
"3. Religious instruction in State schools",
"(a) The situation prior to the 1991 Education Act",
"28. The majority of schoolchildren attend State schools. On 3 and 24 August 1990 the Minister of Education issued two circulars ( instrukcje ), introducing instruction in Roman Catholicism and other religions into State schools on a voluntary basis. According to these circulars, parents of primary school pupils and parents and/or pupils in secondary schools were to make a declaration as to whether they wished to attend religious instruction.",
"29. The Ombudsman challenged the conformity of certain provisions of these circulars with the constitutional provisions in force at the time and the statutory law. She stressed that the problem of religious instruction should be regulated by statute and not by subordinate legislation. The Ombudsman submitted that declarations by parents or students concerning attendance of religious instruction classes constituted a form of public manifestation of their religious convictions. Such a practice ran contrary, in the Ombudsman's view, to the Freedom of Conscience and Religion Act, which stipulated that citizens had the right not to disclose their religion or beliefs. In its judgment of 30 January 1991 (case no. K 11/90), the Constitutional Court held that the provisions challenged by the Ombudsman were in conformity with the Constitution and the statutes.",
"(b) The 1991 Education Act",
"30. On 7 September 1991 Parliament enacted the Law on education (“the 1991 Education Act”). Section 12 of the Act expressly provided that religious instruction could be provided in State schools at the request of parents or of pupils who had reached the age of majority.",
"(c) The Ordinance of the Minister of Education of 14 April 1992",
"31. On 14 April 1992 the Minister of Education issued the Ordinance on the organisation of religious instruction in State schools ( Rozporządzenie w sprawie warunków i sposobu organizowania nauki religii w szkołach publicznych – “the Ordinance”). The Ordinance replaced the two ministerial circulars issued in 1990.",
"32. The Ordinance provided that religious education and ethics were optional subjects. Parents of pupils [1] who wished their children to follow either of those subjects were to make a declaration to the school authorities to that effect. If the number of pupils in a given class interested in following any of these subjects was less than seven, then the school was to organise the relevant course for pupils of different classes from the same school (an inter-class group). If the inter-class group was smaller than seven pupils, the authorities were to organise the relevant course in cooperation with other schools in the municipality (inter-school group), provided that there was a minimum of three pupils interested in following it.",
"33. Paragraph 9 of the Ordinance provided, in so far as relevant:",
"“1. The mark for religion or ethics is placed on the school certificate directly after the mark for behaviour. In order to eliminate any possible manifestations of intolerance the school certificate shall not contain any data that would indicate which religion (or ethics) course was followed by a pupil.”",
"2. The mark for religion (ethics) has no influence on whether a pupil moves up to the next grade.”",
"(d) The Ombudsman's challenge against the Ordinance",
"34. In August 1992 the Ombudsman challenged the conformity of numerous provisions of the Ordinance with the constitutional provisions in force at the material time and the Freedom of Conscience and Religion Act.",
"35. The Ombudsman objected to, among other provisions, paragraph 9 of the Ordinance, arguing that the insertion of a mark for “religion/ethics” on school reports was unacceptable since reports were official documents issued by State schools and the teaching of religion was the prerogative of the Church. In addition, this provision created the risk of intolerance. He further alleged that the provision in question was in breach of the constitutional principle of separation of Church and State and the principle of the State's neutrality, as provided for in the Freedom of Conscience and Religion Act.",
"36. The Ombudsman also contested the obligation imposed on parents (pupils) to make a “negative declaration” to the effect that they did not wish their children to follow religious instruction in a State school (paragraph 3(3) of the Ordinance). He argued that no public authority in the State, which had a duty to remain neutral in the sphere of religious beliefs and philosophical convictions, could require citizens to make such declarations.",
"37. The Ombudsman further alleged that paragraph 12 of the Ordinance allowed for excessive display of crucifixes in other places in schools than classrooms designated for religious instruction.",
"(e) The judgment of the Constitutional Court of 20 April 1993 (case no. U 12/92)",
"38. The Constitutional Court upheld for the most part the constitutionality and legality of the Ordinance. It noted that the inclusion of religious instruction in the State school curriculum did not infringe the constitutional principle of separation of Church and State and the principle of the State's secular character and neutrality. According to the Constitutional Court, the principles in question required that both State and Church remain autonomous in their respective spheres of activity. However, their autonomy should not lead to isolation or even competition between them, but on the contrary should allow them to cooperate in those areas, such as the ethical education of children, which served the common good and the development of the individual. The Constitutional Court further observed that the secular character of the State and its neutrality could not amount to a prohibition on providing religious instruction in State schools. Moreover, according to the Education Act, the provision of religious instruction was always subject to parents'wishes. Referring, among other provisions, to Article 2 of Protocol No. 1 to the Convention, the Constitutional Court noted that the State could not escape its obligation to provide religious education which conformed to parents'wishes.",
"39. The Constitutional Court held that the Ordinance should be construed as granting each pupil the right to follow classes in both religion and ethics as opposed to the alternative of choosing only one of them. Adopting such an interpretation of the Ordinance would deal with the Ombudsman's concerns about the division of pupils into believers and non ‑ believers.",
"40. As to the insertion of marks for religious instruction in school reports, the Constitutional Court found it to be in conformity with the Education Act. Furthermore, it observed that this was a consequence of the provision of religious instruction, on a voluntary basis, by State schools. In accordance with the Education Act, school reports should contain marks for all subjects (compulsory and optional) taken by a pupil in a given school year. This rule applied equally to marks for religion if that subject was taught in a State school.",
"41. Replying to the Ombudsman's concerns, the Constitutional Court held as follows:",
"“In order to dispel possible doubts in this respect, the Constitutional Court indicated in the seventh point of the operative part of its judgment that a mark on a school report may refer not just to religious instruction alone or to ethics alone; in cases where a pupil follows both those courses he or she may be given a joint mark [for the two subjects]. The impugned provision therefore contains a dual safeguard. First, a mark shown on the school report does not indicate any specific religion, and secondly it is not known whether such a mark relates to religious instruction, ethics or both subjects jointly.”",
"42. As to the obligation to make a “negative declaration”, the Constitutional Court struck down paragraph 3(3) of the Ordinance on the grounds of its incompatibility with the Education Act. Paragraph 3(3) of the Ordinance as amended made no reference to a “negative declaration”. It entered into force on 9 September 1993.",
"43. As regards the display of the crucifix in State schools, the Constitutional Court found that the paragraph 12 of the Ordinance provided for such a possibility but did not mandate the presence of the crucifix in schools. Accordingly, this provision was compatible with Article 82 of the Constitution.",
"4. The Constitution of 2 April 1997 and the relevant case law of the Constitutional Court",
"(a) The relevant constitutional provisions",
"44. Article 25 § 2 of the 1997 Constitution provides:",
"“Public authorities in the Republic of Poland shall be impartial in matters of religious and philosophical convictions, and shall ensure freedom to express them in public life.”",
"Article 48 § 1 of the Constitution provides:",
"“Parents shall have the right to raise their children in accordance with their own convictions. The child's upbringing shall respect his degree of maturity as well as his freedom of conscience and belief and also his convictions.”",
"Article 53 of the Constitution provides as follows:",
"“1. Freedom of conscience and religion shall be secured to everyone.",
"2. Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the availability of sanctuaries and other places of worship designed to meet the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services.",
"3. Parents shall have the right to provide their children with a moral and religious upbringing and teaching in accordance with their convictions. The provisions of Article 48 § 1 shall apply as appropriate.",
"4. The religion of a church or other legally recognised religious organisation may be taught in schools, but other peoples'freedom of religion and conscience shall not be infringed thereby.",
"5. The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others.",
"6. No one shall be compelled to participate or not participate in religious practices.",
"7. No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or beliefs.",
"(b) The judgment of the Constitutional Court of 5 May 1998 (case no. K 35/97)",
"45. The Constitutional Court was asked to review the constitutionality of amendments to the Freedom of Conscience and Religion Act. The amendments repealed the provisions of a number of laws regulating relations between certain Churches and the State, which granted the former the right to have marks for their religious instruction entered in school reports. The Constitutional Court upheld the constitutionality of the impugned provisions and held that the Churches concerned were not, in fact, divested of the above-mentioned right. Following the entry into force of the amendments, the Churches simply had to fulfil the conditions set out in the Ordinance of the Minister of Education on the organisation of religious instruction in State schools, which were equally applicable to all Churches and religious organisations.",
"(c) The judgment of the Constitutional Court of 2 December 2009 (case no. U 10/07)",
"46. The Constitutional Court was asked to examine the constitutionality of the amended Ordinance of the Minister of Education of 13 July 2007 on the marking of pupils'work ( Rozporządzenie Ministra Edukacji Narodowej z dnia 13 lipca 2007 r. zmieniające rozporządzenie w sprawie warunków i sposobu oceniania, klasyfikowania i promowania uczniów i słuchaczy oraz przeprowadzania sprawdzianów i egzaminów w szkołach publicznych ). The amended Ordinance introduced for the first time the rule that marks obtained for religious instruction or ethics, as well as other optional courses, would be counted towards the “average mark” obtained by a pupil in a given school year and at the end of a given level of schooling. The amended Ordinance entered into force on 1 September 2007.",
"47. The Constitutional Court in its judgment of 2 December 2009 held that the impugned amendments to the Ordinance on the marking of pupils'work were compatible with Articles 25, 32, 48 § 1 and 53 § 3 of the Constitution. The Constitutional Court found, inter alia, as follows:",
"“The counting of the mark for religion towards the average annual mark and the final mark is – as the [Constitutional] Court emphasises again – a consequence of the introduction of religious education into the school curriculum and of the recording of marks for religion on school reports in State schools. It is a consequence of the constitutional guarantees of religious freedom rather than of support for theistic beliefs. On the basis of the existing regulations, pupils (or their parents or legal guardians) have the possibility to choose between classes in a specific religion or classes in ethics as an alternative subject for those who do not hold religious beliefs. The Constitution does not provide specific guarantees for instruction in the beliefs enumerated by the claimant (atheistic, pantheistic or deistic). It would be difficult even from an organisational viewpoint to offer such a range of subjects to choose from. The knowledge necessary at this level of teaching can be gained by interested [pupils], for instance, in the framework of the subject'ethics'or other subjects coming into the category of'additional educational courses'which are mentioned in the impugned ordinance.”",
"48. In the reasoning, the Constitutional Court relied on and confirmed the findings made in its judgment of 20 April 1993. It held, inter alia, as follows:",
"“The Constitutional Court points out that the issue of conformity of the inclusion of marks for religion in official school reports with section 10(1) of the Freedom of Conscience and Religion Act, which stipulates that'the Republic of Poland is a secular State, neutral in the sphere of religion and beliefs', was already reviewed by the Constitutional Court in its judgment of 20 April 1993, case no U. 12/92. The subject of the review (also under Article 82 § 2 of the then Constitution) was paragraph 9 of the Ordinance of 14 April 1992. ... Ruling in the above case, inter alia, that paragraph 9 of the Ordinance of 14 April 1992 was compatible with section 10(1) (and with Article 82 of the then Constitution), the Court held that:",
"' The recording of marks for religion in school reports is a consequence of the organisation of religious instruction by State schools. ... A school report covers all school courses – compulsory and optional – and thus there are no grounds for excluding religious instruction. Clearly, the Minister of Education could decide otherwise and do away with the obligation to include marks on a school report. ...'",
"Endorsing the above findings, the Constitutional Court wishes to underline in connection with the case in issue that the counting of marks for religion towards the average annual mark and the final average mark is in turn a consequence of the recording of marks for religion on school reports in State schools. ... .”",
"The Constitutional Court further noted:",
"“The Constitutional Court is aware of the fact that in specific cases, given the dominant position of the Roman Catholic faith in the religious make-up of Polish society, the choice of an additional subject (religion or ethics) by parents or pupils may not be entirely free, but may be taken under pressure from “local” public opinion. The free choice of the additional subject depends to a large extent on the respect for the principles of pluralism and tolerance for different convictions and beliefs in local communities. In specific cases in which external pressure – impinging on the free choice – was exerted it would have been the result of a low level of democratic culture. This important issue, while it is noted by the Constitutional Court, lies outside its jurisdiction. ... ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 9 OF THE CONVENTION",
"49. The applicants alleged that the school authorities had failed to organise a class in ethics for the third applicant and complained about the absence of a mark in his school reports in the space reserved for “religion/ethics”. They claimed that the third applicant had been subjected to discrimination and harassment for not having followed religious education classes. The applicants invoked Articles 9 and 14 of the Convention. The Court raised of its own motion a complaint under Article 8 of the Convention, namely whether the facts of the case disclose a breach of the State's positive obligation to ensure effective respect for the applicants'private life within the meaning of that provision.",
"50. The Court considers that it is appropriate to examine these complaints under Article 14 taken in conjunction with Article 9 of the Convention as regards the absence of a mark for the subject “religion/ethics”. Article 9 of the Convention provides as follows:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14 reads:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"1. Compatibility ratione personae",
"51. The Government pleaded that the first two applicants did not have victim status in respect of the complaints under Articles 9 and 14 of the Convention. In particular, they submitted that Mr and Mrs Grzelak could not be considered victims of any violations of Articles 9 and 14 caused by the actions or omissions of the public authorities with regard to the provision of religious instruction (ethics) or with regard to the form of school reports, as those issues concerned exclusively the rights of Mateusz Grzelak, the third applicant. The applicants did not comment.",
"52. The Court recalls that the complaint under Article 14 taken in conjunction with Article 9 concerns the absence of a mark for the subject “religion/ethics” in the third applicant's school reports. Having regard to the scope of the complaint under Article 14 taken in conjunction with Article 9, it accepts the Government's argument and notes that the issues arising under this provision of the Convention concern only the third applicant, Mateusz Grzelak (see, mutatis mutandis, Valsamis v. Greece, 18 December 1996, § 34, Reports of Judgments and Decisions 1996 ‑ VI). The Article 14 complaint taken in conjunction with Article 9 is therefore incompatible ratione personae with respect to the first and second applicants.",
"2. Exhaustion of domestic remedies",
"(a) The Government",
"53. The Government claimed that the third applicant had not exhausted domestic remedies with regard to his allegations of discriminatory treatment because no class in ethics had been provided as an alternative to religious instruction and because of the form of the school reports. They submitted that the Ordinance regulated in a comprehensive manner the duties of school authorities regarding the organisation of classes in religion or ethics. It imposed no obligation on schools to provide a class in ethics, as that depended on parents or pupils requesting it and on there being sufficient numbers of interested pupils. If Mr and Mrs Grzelak had considered that their son was being discriminated against by the school authorities on account of the absence of a course in ethics, they should have challenged the provisions of the Ordinance which did not provide for compulsory teaching of ethics instead of religious instruction. In their view, the applicant should have lodged a constitutional complaint against the manner of organising classes in ethics provided for in paragraphs 1 to 3 of the Ordinance.",
"54. The Government submitted that the Constitutional Court, in its judgment of 20 April 1993, had reviewed the constitutionality of the Ordinance in the light of the then applicable constitutional provisions. However, following the entry into force of the new Constitution in 1997 the applicants could have lodged a constitutional complaint relying on its provisions, in particular Article 53 § 4.",
"55. The Constitutional Court held in its judgment of 20 April 1993 that the Ordinance should be construed so as to allow every pupil to follow classes in both religious education and ethics. Thus, the Government maintained that the Constitutional Court had not reviewed the optional character of courses in ethics as an alternative to religious instruction in the light of the constitutional principles of equality (Article 32) and freedom of thought, conscience and religion (Article 53). Similar considerations applied should the applicants wish to challenge the very fact of giving a mark for “religion/ethics” or the lack of such a mark on their son's school report. In that case, they should have challenged paragraph 9(1) of the Ordinance.",
"(b) The third applicant",
"56. The third applicant argued that he had exhausted all domestic remedies. Regarding the possibility of a constitutional complaint, he submitted that it had not been available in his case. The Constitutional Court Act stipulated that a constitutional complaint could be lodged after legal remedies had been exhausted, in so far as such remedies were available, and within three months following the service of a final decision. The third applicant submitted that in his case no final decision had been given on the basis of the unconstitutional Ordinance and that he could not therefore have availed himself of that remedy. Furthermore, he had put the matter to the Ombudsman in June 2001, who had informed him that he was bound by the Constitutional Court's judgment of 20 April 1993 and could not challenge the same provisions of the Ordinance again.",
"(c) The Court",
"57. The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual's Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI).",
"58. Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006 ‑ ... ).",
"59. The Court notes that before lodging a constitutional complaint a claimant is obliged to obtain a final decision from a court or an administrative authority. More importantly, the Court points out that a constitutional complaint can be recognised as an effective remedy only where the individual decision which allegedly violated the Convention was adopted in direct application of an unconstitutional provision of national legislation (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003, and Pachla v. Poland (dec.), no. 8812/02, 8 November 2005). However, in the present case the applicants could not obtain any judicial or administrative decision in respect of their request that their son be taught a course in ethics instead of religious instruction and the Government did not claim that they could have obtained such decision. The Court observes in this connection that no such course was provided as the number of pupils interested was below the minimum number required by the Ordinance. Consequently, Mateusz Grzelak did not follow a course in ethics and had a straight line on his school reports in the space reserved for “religion/ethics”.",
"60. Moreover, the Court notes that the Constitutional Court, in its judgment of 2 December 2009 (case no. U 10/07 – see relevant domestic law and practice above) reviewing the compatibility with the 1997 Constitution of the amended Ordinance of the Minister of Education on the marking of pupils, upheld the findings made in its earlier judgment of 20 April 1993, in particular with regard to the constitutionality of providing religious instruction (ethics) and the resulting insertion of marks for those subjects. It is true that the Constitutional Court on both occasions did not address the specific issue of the non-insertion of a mark or the insertion of a straight line. However, the Court notes that in its judgment of 20 April 1993 the Constitutional Court did not accept the argument that the recording of marks for religion in school reports amounted to a breach of the principle of separation of Church and State and the principle of the State's neutrality. The Constitutional Court further considered that the recording of such marks did not give rise to an issue as regards the right not to reveal one's religion or convictions as provided in section 2 (5) of the Freedom of Conscience and Religion Act. In these circumstances, the Court finds that any attempt to mount a successful challenge to the issue of the non-insertion of a mark for “religion/ethics” would be futile. For the above reasons, the Court considers that a constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the present case.",
"61. It follows that the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.",
"3. Conclusion as to admissibility",
"62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible with respect to the third applicant.",
"B. Merits",
"1. The third applicant's submissions",
"63. The third applicant alleged a breach of Article 9 of the Convention since his school reports did not feature a mark for “religion/ethics”. In addition, despite numerous requests submitted by his parents to the various primary and secondary schools attended by the third applicant, he had been unable to follow a class in ethics. Moreover, Mateusz Grzelak had been discriminated against on account of his and his parents'convictions.",
"64. The third applicant submitted that the entire education system in Poland was geared towards Catholicism and that those who did not share that faith were discriminated against. He argued that in practice classes in ethics were not provided in State schools. For that reason many non-Catholic parents sent their children to religious instruction classes in order to avoid the problems which the third applicant had been confronted with.",
"65. The third applicant claimed that in the conditions prevailing in Poland a person could not freely decide on his own or with the help of his parents about such a fundamental issue as belief in God and choosing one's religion. In his view, the possibility to make independent decisions in that sphere was one of the most important human rights. He claimed that he had been deprived of the right to freedom of thought, conscience and religion on account of the defective Ordinance and its unreasonable application. He referred to the specific circumstances of his case, such as the obligation to submit a declaration stating that he would not follow religious instruction, the impossibility of his following a class in ethics owing to organisational difficulties, the presence of a straight line instead of a mark on his school reports, the fact that teachers tolerated his humiliation and the failure of the State authorities to react to these problems. The third applicant stressed that the issues concerned might not appear particularly serious when viewed in isolation, but that their cumulative effect meant that the he had been deprived of his right to freedom of thought, conscience and religion.",
"66. The third applicant maintained that that freedom was very important to him and that he had fought hard for it. The price he paid was humiliation, social ostracism, being forced to change schools and being subjected to physical violence. These examples of suffering showed that the third applicant had been personally stigmatised. He concluded that the facts of their case amounted to a breach of Articles 9 and 14 of the Convention.",
"2. The Government's submissions",
"67. In Poland there was no form of compulsory religious or ethical education in State schools, which made the present case entirely different from Folgerø and Others v. Norway ([GC], no. 15472/02, ECHR 2007 ‑ VIII). The Government stressed firstly that in accordance with paragraph 1(1) of the Ordinance, religion or ethics classes could be provided only at the request of parents or of pupils who had reached the age of majority. Secondly, the teaching of religion or ethics could be organised only if sufficient numbers of parents (pupils) expressed such a wish (see relevant domestic law and practice above). The Government submitted that in cases where it was particularly justified, either of these optional subjects could be organised in a different manner from that specified in the Ordinance, depending on the resources available to the local authority which ran the school. There was no obligation to organise such classes where there were insufficient numbers of interested pupils in a municipality, if the latter did not have adequate resources to cover the costs involved. Having regard to the above, the Government maintained that the school authorities or the authority which administered the schools attended by Mateusz Grzelak had not been obliged to organise a course in ethics for him, given that there were not enough interested pupils in the same school or municipality.",
"68. The Government submitted that the circumstances of the case gave no indication of any interference with the third applicant's rights under Article 9 of the Convention on account of the fact that no ethics class had been organised for him in State schools. There were no indications that the third applicant had been in any way indoctrinated or subjected to any form of pressure as to his personal beliefs. Article 9 of the Convention did not deal with States'obligations regarding the content of school curricula.",
"69. As to the absence of a mark for “religion/ethics”, the Government pointed out that the Convention institutions had already dealt with this issue on two occasions. In C.J., J.J. and E.J. v. Poland (no. 23380/94, 16 January 1996), the European Commission of Human Rights had declared the application manifestly ill-founded. In the case of Saniewski v. Poland ((dec.), no. 40319/98, 26 June 2001), the Court had found that the applicant had not substantiated his claim that the absence of a mark for “religion/ethics” on his school report might prejudice his future educational or employment prospects. Furthermore, no conclusions could be drawn on the basis of the school report as to whether the applicant had chosen not to attend the courses for which no mark was given or whether those courses had simply not been organised in his school in that particular year.",
"70. The Government argued that the third applicant's situation in the present case was very similar to the Saniewski case. The school report was an official document which contained objective information as to the attendance and assessment of a pupil's achievements in courses which had been organised and had been attended by him or her. It might happen that a pupil did not attend some courses for various reasons, for instance because he or she was exempted from physical education on health grounds. Where pupils did not attend a given course, such as a course in religion or ethics or physical education, this was normally reflected in the standard school reports, as it would be unreasonable to expect that those pupils should receive their reports in a different form.",
"71. The Government stressed that the lack of a mark for “religion/ethics” on the third applicant's school reports did not constitute interference with his rights under Article 9, as the reports did not disclose his philosophical or religious beliefs. The absence of a mark or the presence of a line on a school report could not be interpreted as anything more than official information as to whether or not a pupil had been following a religion/ethics class in a particular year. Hence, the third applicant's right to remain silent with regard to his philosophical or religious beliefs had been fully respected. Furthermore, the Government claimed that the applicant had not provided any evidence that the form of the school reports constituted interference with his Article 9 rights. He had not pointed to any inconvenience of a sufficient degree of seriousness to be considered as a breach of his rights under Article 9.",
"72. The Government further submitted that the mark for “religion/ethics” was not included in the calculation of the so-called “average mark” ( średnia ), with the result that pupils not following those courses were not discriminated against compared with those who followed them. As to the 2007 amendments to the relevant Ordinance of the Minister of Education on the marking of pupils'work which changed the above rule, the Government maintained that counting the mark for religion/ethics towards the “average mark” was just a consequence of the choice made with respect to attendance at religion/ethics classes.",
"73. In addition, the mark for “religion/ethics” on the school diplomas awarded at the end of primary school or gimnazjum did not influence a pupil's prospects in respect of the level of his or her subsequent education, since access to both junior secondary schools and to secondary schools depended solely on the results of the examination taken at the end of the relevant education period. The Government stressed that under no circumstances would the absence of such a mark be problematic when it came to admission to university.",
"74. Furthermore, the Government claimed that it was difficult to deduce a positive obligation to conceal whether a pupil followed a religion/ethics class in a State school in terms of the protection of Article 9 rights. The provisions of the Ordinance contained sufficient positive measures to protect pupils and their parents against having to reveal their convictions and beliefs. Any “special” protective or positive measures in respect of pupils whose parents did not wish them to follow religion/ethics classes could turn against the children themselves; this would hardly be desirable. There was no objective justification for awarding different school diplomas for pupils given a mark for “religion/ethics” and those with no such mark.",
"75. The Government observed that the issue of whether or not pupils followed religion/ethics courses was a delicate one, since the parents'choice, taken in conformity with their own convictions, might cause their child to belong to a minority in a certain class or school. The authorities should do their utmost to minimise the risk of a child's stigmatisation because he or she did not follow a religion/ethics course. It was the school's duty to provide pupils who did not follow a class in religion or ethics with care and supervision whenever they were on the school premises. It was also the school's duty to react to all manifestations of intolerance towards such children. The Government claimed that those obligations had been complied with in the present case. They also noted that, owing to the nature of the issue, it was not only the school which had positive obligations with respect to freedom of thought, conscience and religion; it was first and foremost the parents'duty to ensure that their children understood the choice made by them as regards religion/ethics education at school. The Government observed that the press articles attached to the application lodged by Mr and Mrs Grzelak did not support the assertion that it was their intention to protect their personal beliefs from being disclosed.",
"76. The Government submitted that the Ordinance did not focus on any particular religion, although it was true that the vast majority of religion classes concerned the Catholic faith.",
"3. The third-party intervener's comments",
"77. According to the Helsinki Foundation for Human Rights, statistical data showed that there was a huge disparity between the availability of classes in religious education and classes in ethics. As indicated by the Ministry of Education, of 32,136 schools, 27,500 (85.57%) organised religious instruction classes (all religions), while ethics was taught only in 334 schools (1.03%). There were 21,370 teachers of religion and only 412 teachers of ethics [2].",
"78. The lack of clear provisions and guidelines concerning the teaching of ethics made the right to choose it as an alternative to religious instruction only a theoretical possibility. The minimum number of seven pupils per class for inter-class teaching, as provided for in the Ordinance, resulted in indirect discrimination of pupils belonging to minorities, whether religious or non-believing. At national level the relevant criteria were met only by the Catholic Church, and on the regional level by the Orthodox Church and the Lutheran Church. In 2003 the number of Catholics was estimated at 34,443,998 (90.1% of the whole population), the number of Orthodox Christians at 510,712 (1.34%) and the number of Protestants at 162,102 (0.42%).",
"79. The criterion of a minimum of seven children for a class or inter-class group, while it appeared practical, was set at a high level. It could be lower, as was the case regarding the teaching of national or ethnic minority languages [3]. Financial considerations could not provide a convincing explanation for the differences in the provision of teaching in minority languages and the teaching of ethics. Moreover, individual classes could be organised for gifted children, those who were ill or those who had difficulties with the curriculum, and the same opportunities should be available to pupils who wanted to follow ethics classes. The minimum number of three pupils for an inter-school group was more reasonable. However, such groups were not organised since the Ordinance did not provide any details regarding the procedure for organising them, by contrast to the rules concerning minority languages. Accordingly, the relevant provisions of the Ordinance were illusory and ineffective. In Warsaw such inter-school groups were never organised.",
"80. The third party observed that the Ordinance focused primarily on the rights of followers of the Catholic Church. That was evident, inter alia, from its structure, as the majority of provisions concerned the teaching of religion. In some cases the rules concerning the organisation of religious instruction, which were to be applied by analogy to the organisation of courses in ethics, did not have any equivalent in relation to the latter. Furthermore, there were no curriculum guidelines ( podstawa programowa ) for courses in ethics in the first three years of primary school. The lack of courses in ethics created a certain pressure on pupils to attend religious instruction, even leaving aside the intentions of the school staff.",
"81. The third party maintained that the unavailability of courses in ethics in Polish schools meant that there was no option to attend such a course. As a result, interested pupils would have either no mark for “religion/ethics” on their school reports, or a straight line. This signified that a particular pupil had not followed the religious instruction which was organised in almost all schools. Not following that course did not in itself mean that the pupil was a non-believer; however the cultural context of a given country had to be taken into consideration in this respect. In a Catholic society such pupils were very likely to be perceived as non-believers. There was a risk of discrimination in that regard.",
"82. The third party argued that the right not to disclose one's religion or convictions was a fundamental right. However, where no mark or a straight line was given for “religion/ethics”, the person's convictions were disclosed indirectly. The third party pointed out that the Constitutional Court, in its judgment of 20 April 1993, had held that the mark for “religion/ethics” made it impossible to determine which of the two subjects had been followed by a pupil. However, where courses in ethics were not provided in schools, there were many pupils who had a straight line or no mark for “religion/ethics”. The risk of discrimination associated with revealing on a school report that a pupil attended religion or ethics classes had been acknowledged by the Minister of Education, as evidenced by the second sentence of paragraph 9(1) of the Ordinance. The third party maintained that a school report was a public document which should not contain information concerning a person's convictions, as this could adversely influence the rights of the individual in a predominantly Catholic society. In its opinion, supported by research carried out in 1996, discrimination on the basis of beliefs was not merely a fringe phenomenon in Polish schools.",
"83. The problems described by the third party would become even more acute starting in the 2007/2008 school year. The relevant Ordinance of the Minister of Education on the marking of pupils had been amended in such a way that the mark obtained for “religion/ethics” would have a real impact on whether or not a pupil moved up to the next class, because the mark would count towards the average overall grade achieved by the pupil in a given school year. In those circumstances, there was a risk that pupils would follow religious instruction against their will in order to have the mark counted as part of their average mark.",
"4. The Court's assessment",
"84. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997-I, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000-X).",
"85. Further, the Court reiterates that freedom of thought, conscience and religion, as enshrined in Article 9, is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260 ‑ A, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 ‑ I).",
"86. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom of thought, conscience and religion in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected (see Kokkinakis, cited above, § 33). The Court has frequently emphasised the State's role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 ‑ XI).",
"87. The Court reiterates that freedom to manifest one's religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs (see, Alexandridis v. Greece, no. 19516/06, § 38, ECHR 2008 ‑ ..., and, mutatis mutandis, Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 76 in fine, ECHR 2007 ‑ XI ). The Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers like the third applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.",
"88. Having regard to the foregoing, the Court finds that the absence of a mark for “religion/ethics” on the successive school reports of the third applicant falls within the ambit of the negative aspect of freedom of thought, conscience and religion protected by Article 9 of the Convention as it may be read as showing his lack of religious affiliation. It follows that Article 14 taken in conjunction with Article 9 is applicable in the instant case.",
"89. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( Van Raalte v. the Netherlands, cited above, § 39; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999 ‑ I; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006 ‑ ... ).",
"90. The third applicant complained of the discriminatory nature of the non-provision of courses in ethics and the resultant absence of a mark for “religion/ethics” on his school reports. The Court considers it appropriate to limit its examination of the alleged difference in treatment between the third applicant, a non-believer who wished to follow ethics classes, and those pupils who followed religion classes to the latter aspect of the complaint, namely the absence of a mark.",
"91. The Court observes that in the present case the parents of the third applicant systematically requested the school authorities to organise a class in ethics for him, as provided for in the Ordinance. However, no such class was organised for the third applicant between the 1998/1999 school year and the 2008/2009 school year, that is to say, throughout his entire schooling at primary and secondary level up to the present day. It appears that the reason was the lack of sufficient numbers of pupils interested in following such a class, in accordance with the requirements set out in the Ordinance. As no ethics class was provided throughout the third applicant's schooling, his school reports and leaving certificates contained a straight line instead of a mark for “religion/ethics”.",
"92. The Court takes the view that the provisions of the Ordinance which provide for a mark to be given for “religion/ethics” on school reports cannot, as such, be considered to infringe Article 14 taken in conjunction with Article 9 of the Convention as long as the mark constitutes neutral information on the fact that a pupil followed one of the optional courses offered at a school. However, a regulation of this kind must also respect the right of pupils not to be compelled, even indirectly, to reveal their religious beliefs or lack thereof.",
"93. The Court reiterates that religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person's lifetime (see, mutatis mutandis, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002 ‑ X; and Sinan Işık v. Turkey, no. 21924/05, § 42, 2 February 2010). Although the above cases concerned identity cards, documents of arguably greater significance in a person's life than school reports for primary and secondary education, the Court nonetheless finds that similar considerations apply to the present case.",
"94. When reviewing the issue of a mark for “religion/ethics” on school reports, the Constitutional Court in its judgment of 20 April 1993 dismissed the arguments concerning the risk of a division between believers and non-believers (see paragraphs 40-41 above). The Constitutional Court's judgment was based on the assumption that any interested pupil would be able to follow a class in either of the two subjects concerned. Consequently, there would always be a mark on the school report for “religion/ethics”. The Constitutional Court further held that a pupil could even follow both subjects in the same year, in which case his or her mark for “religion/ethics” would be an average mark for the two subjects. Having regard to the above, the Constitutional Court held that an outside observer would not be in a position to determine whether a pupil had followed a class in religion or in ethics.",
"95. The Court notes that the above analysis of the Constitutional Court, while unquestionable in its substance, appears to overlook other situations which may arise in practice. In the present case the pupil had no mark for “religion/ethics” on his school reports because the schools could not organise ethics classes despite repeated requests from his parents. The Court considers that the absence of a mark for “religion/ethics” would be understood by any reasonable person as an indication that the third applicant did not follow religious education classes, which were widely available, and that he was thus likely to be regarded as a person without religious beliefs. The Government in their submissions indicated that the vast majority of religious education classes concerned Roman Catholicism. The fact of having no mark for “religion/ethics” inevitably has a specific connotation and distinguishes the persons concerned from those who have a mark for the subject (see, Sinan Işık, cited above, § 51). This finding takes on particular significance in respect of a country like Poland where the great majority of the population owe allegiance to one particular religion.",
"96. Further, the Court notes that from 1 September 2007 onwards the situation of pupils like the third applicant would become even more problematic on account of the entry into force of the amended Ordinance of the Minister of Education of 13 July 2007 on the marking of pupils'work (see paragraph 46 above). The amended Ordinance introduced the rule that marks obtained for religious education class or ethics would be included in the calculation of the “average mark” obtained by a pupil in a given school year and at the end of a given level of schooling. In this respect the Court observes that the above rule may have a real adverse impact on the situation of pupils like the applicant who could not, despite their wishes, follow a course in ethics. Such pupils would either find it more difficult to increase their average mark as they could not follow the desired optional subject or might feel pressurised – against their conscience – to attend a religion class in order to improve their average. It is noteworthy in this respect that the Constitutional Court in its judgment of 2 December 2009 referred to the risk that the choice of religion as an optional subject could have been the result of pressure from local public opinion, but nevertheless did not address this issue as lying outside its jurisdiction (see paragraph 48 in fine above).",
"97. For those reasons the Court is not persuaded by the Government's submissions to the effect that the absence of a mark for “religion/ethics” is entirely neutral and simply reflects the fact of following or not following a class in religious education or in ethics. This argument is further undermined by the fact that on the third applicant's primary school leaving certificate there was a straight line and the word “ethics” was crossed out. The message conveyed by such a document is unambiguous and anything but neutral: the ethics class was not available as an optional subject to the third applicant and he chose not to attend religion class.",
"98. Nor is the Court convinced by the Government's arguments that there are close similarities between the Saniewski inadmissibility decision and the present case. It finds that the present case can be distinguished from Saniewski on at least three grounds. Firstly, differently from Saniewski, in the instant case the allegations concern all the consecutive school reports of the third applicant, including his leaving certificate for primary and lower secondary schools. Secondly, in the present case the Court has examined the issues raised in the light of Article 14 taken in conjunction with Article 9 (in its negative aspect). Thirdly, the relevant new factor for the Court is the amended Ordinance of 2007 referred to above.",
"99. Having regard to the foregoing, the Court finds that the absence of a mark for “religion/ethics” on the third applicant's school certificates throughout the entire period of his schooling amounted to a form of unwarranted stigmatisation of the third applicant.",
"100. In these circumstances, the Court is not satisfied that the difference in treatment between non- believers who wished to follow ethics classes and pupils who followed religion classes was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. The Court considers that the State's margin of appreciation was exceeded in this matter as the very essence of the third applicant's right not to manifest his religion or convictions under Article 9 of the Convention was infringed.",
"101. There has accordingly been a violation of Article 14 taken in conjunction with Article 9 of the Convention in respect of the third applicant.",
"II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION",
"102. The first two applicants complained that the school authorities had not organised a class in ethics for their son in conformity with their convictions. They relied on Article 2 of Protocol No. 1 to the Convention.",
"103. The Government claimed that the first two applicants had not complained of any breach of their rights under Article 2 of Protocol No. 1. The Court notes that the first two applicants expressly alleged a breach of that provision in their application, and for that reason dismisses the Government's objection.",
"104. The Court reiterates that the general principles concerning the interpretation of Article 2 of Protocol No. 1 were recapitulated in the case of Folgerø and Others (cited above, § 84). In that case the Court reviewed under Article 2 of Protocol No. 1 the arrangements for a compulsory subject in Christianity, Religion and Philosophy taught during the ten years of compulsory schooling in Norway. The model existing in Poland is different in a number of respects. Religious education and ethics are organised on a parallel basis, for each religion according to its own system of principles and beliefs and, at the same time, it is provided that teaching of ethics is offered to interested pupils. Both subjects are optional and the choice depends on the wish of parents or pupils, subject to the proviso that a certain minimum number of pupils were interested in following any of the two subjects. The Court notes that it remains, in principle, within the national margin of appreciation left to the States under Article 2 of Protocol No. 1 to decide whether to provide religious instruction in public schools and, if so, what particular system of instruction should be adopted. The only limit which must not be exceeded in this area is the prohibition of indoctrination (see, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 53, Series A no. 23). The Court observes that the system of teaching religion and ethics as provided for by Polish law – in its model application – falls within the margin of appreciation as to the planning and setting of the curriculum accorded to States under Article 2 of Protocol No. 1.",
"105. Accordingly, the Court finds that the alleged failure to provide ethics classes does not disclose any appearance of a violation of the rights of the first and second applicants under Article 2 of Protocol No. 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"106. The first two applicants further complained under Article 9 of the Convention that they had been requested to make a declaration as to whether their son would follow religious instruction and had thus been exposed to a risk of disclosure of their convictions. The Court observes that the first two applicants failed to substantiate this complaint. In any event, it notes that under the version of the Ordinance applicable to the facts of the present case the school authorities could not ask parents to make a “negative declaration” to the effect that their child would not follow religious instruction.",
"107. The applicants also alleged a breach of Article 13 of the Convention in that there had been no effective remedies available in their case. However, the Court notes that this complaint was formulated in very general terms and without having specified which substantive Article of the Convention it was related to.",
"108. Consequently, the Court finds that the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"109. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"110. The applicants claimed 150,00 0 euros (EUR) in respect of non ‑ pecuniary damage for the suffering and distress occasioned by the violation.",
"111. The Government submitted that the claim was exorbitant. Alternatively, they invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.",
"112. The Court considers that in the particular circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage which may have been sustained by the third applicant.",
"B. Costs and expenses",
"113. The applicants also claimed an unspecified sum for the cost of legal representation, to be awarded in accordance with the applicable rules.",
"114. The Government submitted that any award should be limited to those costs and expenses which were actually and necessarily incurred and were reasonable.",
"115. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that the applicants failed to produce any documents showing that the sum claimed had been incurred, the Court rejects the claim for costs and expenses."
] |
21 | Cyprus v. Turkey | 10 May 2001 (Grand Chamber) | In this case, which related to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus, Cyprus alleged, among other things, a violation of Article 10 (freedom of expression) of the Convention, as regards the Karpas Greek Cypriots, because of the excessive censorship of school-books. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school had been subject to excessive measures of censorship. | Children’s rights | Freedom of expression (Article 10) | [
"THE CIRCUMSTANCES OF THE CASE",
"A. General context",
"13. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court's consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 ( merits ), Reports of Judgments and Decisions 1996-VI, p. 2223, §§ 16-17):",
"“16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army's headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.",
"17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns 'TRNC citizens' by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the 'TRNC'.”",
"14. A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the “ Turkish Republic of Northern Cyprus ” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985.",
"This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.",
"15. According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations.",
"16. United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General's Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”.",
"Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations.",
"B. The previous inter-State applications",
"17. The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that “the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute”. In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute (see paragraph 16 above). The Committee of Ministers viewed this decision as completing its consideration of the case.",
"The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission's 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed.",
"C. The instant application",
"18. The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”.",
"These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.",
"D. The Commission's findings of fact in the instant application",
"19. The Court considers it appropriate at this stage to summarise the Commission's findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission.",
"1. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives",
"20. The applicant Government essentially claimed in their application that about 1,491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State.",
"21. The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention.",
"22. The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention.",
"23. To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission's opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life.",
"24. In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons.",
"25. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission's earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries.",
"26. The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims' relatives.",
"27. The Commission further concluded that its examination of the applicant Government's complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP's investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory.",
"2. Alleged violations of the rights of the displaced persons to respect for their home and property",
"28. The Commission established the facts under this heading against the background of the applicant Government's principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with “TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the “TRNC” authorities without payment of compensation and its re-assignment, together with “title deeds”, to State bodies, Turkish Cypriots and settlers from Turkey.",
"29. The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the “TRNC” authorities.",
"30. The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government.",
"31. The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the “TRNC” authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion.",
"32. Nor did the respondent Government dispute the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the “abandoned” property and its allocation. The beneficiaries of allocations were issued with “possessory certificates” but not “deeds of title” to the properties concerned. However, as from June 1989 the practice changed and thereafter “title deeds” were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of “Article 159 § 1 (b) of the TRNC Constitution” of 7 May 1985 and “Law no. 52/1995” purporting to give effect to that provision.",
"33. Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district.",
"3. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus",
"34. The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “TRNC” courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus.",
"35. The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the “TRNC”. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made.",
"36. The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the “TRNC” courts on the availability of remedies in the “TRNC”; “TRNC legislation” and decisions of the “TRNC Council of Ministers” on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General's progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called “Karpas Brief”.",
"37. Furthermore, the Commission's delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the “Karpas Brief” as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits.",
"38. The Commission considered the above-mentioned “Karpas Brief” an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General's progress reports on the “Karpas Brief” recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any “TRNC legislation” and were in the nature of administrative practices.",
"39. The Commission further found that there existed a functioning court system in the “TRNC” which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested.",
"40. In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the “TRNC” authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus.",
"41. In the absence of legal proceedings before the “TRNC” courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the “TRNC Constitution”. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “TRNC Council of Ministers”, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts.",
"42. Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications.",
"43. The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the “TRNC Council of Ministers” of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced “entry fee”.",
"44. As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish-Cypriot administration.",
"45. Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television.",
"46. The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the “TRNC” police or that their telephones were tapped.",
"47. As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south.",
"48. Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots.",
"4. Alleged violations in respect of the rights of Turkish Cypriots and the Turkish-Cypriot Gypsy community in northern Cyprus",
"49. The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education.",
"50. The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “TRNC” to aggrieved persons.",
"51. The Commission's investigation into the applicant Government's allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission's delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998.",
"52. The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the “TRNC” policy of full integration for the settlers.",
"53. Furthermore, while there was a significant incidence of emigration from the “TRNC” for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the “TRNC” out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “TRNC” police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “TRNC” authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention.",
"54. Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa.",
"55. In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the “TRNC” authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration."
] | [
"THE LAW",
"I. PRELIMINARY issues",
"56. The Court observes that, in the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission, at the admissibility stage of the proceedings, considered these objections under the following heads: (1) alleged lack of jurisdiction and responsibility of the respondent State in respect of the acts complained of; (2) alleged identity of the present application with the previous applications introduced by the applicant Government; (3) alleged abuse of process by the applicant Government; (4) alleged special agreement between the respective Governments to settle the dispute by means of other international procedures; (5) alleged failure of aggrieved persons concerned by the application to exhaust domestic remedies; and (6) alleged failure by the applicant Government to comply with the six-month rule.",
"57. The Court further observes that the Commission, in its admissibility decision of 28 June 1996, rejected the respondent Government's challenges under the third and fourth heads and decided to reserve to the merits stage the issues raised under the remaining heads.",
"58. The Court notes that on account of the respondent Government's failure to participate in the written and oral proceedings before it (see paragraphs 11 and 12 above), the objections which Turkey relied on before the Commission have not been re-submitted by her for consideration. Although it is open to the Court in these circumstances, in application of Rule 55 of the Rules of Court, to refuse to entertain the respondent Government's pleas of inadmissibility, it nevertheless considers it appropriate to examine them in the form of preliminary issues. It observes in this connection that the applicant Government have devoted a substantial part of their written and oral pleadings to these issues, including their relevance to the merits of their various allegations.",
"Issues reserved by the Commission to the merits stage",
"1. As to the applicant Government's locus standi",
"59. In the proceedings before the Commission, the respondent Government claimed that the applicant Government were not the lawful government of the Republic of Cyprus. Referring to it as the “Greek-Cypriot administration”, they maintained that the applicant Government lacked standing to bring the instant application.",
"60. The applicant Government refuted this assertion with reference, inter alia, to the Court's conclusions in its Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ) (Series A no. 310) and to the reaction of the international community to the proclamation of the establishment of the “TRNC” in 1983, in particular the two resolutions adopted by the United Nations Security Council and the resolution of the Council of Europe's Committee of Ministers condemning this move in the strongest possible terms (see paragraph 14 above).",
"61. The Court, like the Commission, finds that the respondent Government's claim cannot be sustained. In line with its Loizidou judgment ( merits ) (loc. cit.), it notes that it is evident from international practice and the condemnatory tone of the resolutions adopted by the United Nations Security Council and the Council of Europe's Committee of Ministers that the international community does not recognise the “TRNC” as a State under international law. The Court reiterates the conclusion reached in its Loizidou judgment ( merits ) that the Republic of Cyprus has remained the sole legitimate government of Cyprus and on that account their locus standi as the government of a High Contracting Party cannot therefore be in doubt (loc. cit., p. 2231, § 44; see also the above-mentioned Loizidou judgment ( preliminary objections ), p. 18, § 40).",
"62. The Court concludes that the applicant Government have locus standi to bring an application under former Article 24 (current Article 33) of the Convention against the respondent State.",
"2. As to the applicant Government's legal interest in bringing the application",
"63. The respondent Government pleaded before the Commission that Resolutions DH (79) 1 and DH (92) 12 adopted by the Committee of Ministers on the previous inter-State applications (see paragraph 17 above) were res judicata of the complaints raised in the instant application which, they maintained, were essentially the same as those which were settled by the aforementioned decisions of the Committee of Ministers.",
"64. In their reply, the applicant Government stated that neither of the above-mentioned resolutions precluded the Court's examination of the complaints raised in the instant application. In the first place, the Committee of Ministers never took any formal decision on the findings contained in either of the Commission's reports under former Article 31. Secondly, the application currently before the Court was to be distinguished from the earlier applications in that it set out new violations of the Convention, invoked complaints which were not the subject of any definitive finding by the Commission in its earlier reports and was, moreover, premised on the notion of continuing violations of Convention rights.",
"65. The Commission agreed with the applicant Government's reasoning and rejected the respondent Government's challenge under this head.",
"66. The Court, like the Commission, accepts the force of the applicant Government's reasoning. It would add that this is the first occasion on which it has been seised of the complaints invoked by the applicant Government in the context of an inter-State application, it being observed that, as regards the previous applications, it was not open to the parties or to the Commission to refer them to the Court under former Article 45 of the Convention read in conjunction with former Article 48. It notes in this connection that Turkey only accepted the compulsory jurisdiction of the Court by its declaration of 22 January 1990 (see the Mitap and Müftüoğlu v. Turkey judgment of 25 March 1996, Reports 1996-II, p. 408, § 17).",
"67. Without prejudice to the question of whether and in what circumstances the Court has jurisdiction to examine a case which was the subject of a decision taken by the Committee of Ministers pursuant to former Article 32 of the Convention, it must be noted that, in respect of the previous inter-State applications, neither Resolution DH (79) 1 nor Resolution DH (92) 12 resulted in a “decision” within the meaning of Article 32 § 1. This is clear from the terms of these texts. Indeed, it is to be further observed that the respondent Government accepted in their pleadings on their preliminary objections in the Loizidou case that the Committee of Ministers did not endorse the Commission's findings in the previous inter ‑ State cases (see the Loizidou judgment ( preliminary objections ) cited above, pp. 21-22, § 56).",
"68. The Court accordingly concludes that the applicant Government have a legitimate legal interest in having the merits of the instant application examined by the Court.",
"3. As to the respondent State's responsibility under the Convention in respect of the alleged violations",
"69. The respondent Government disputed Turkey's liability under the Convention for the allegations set out in the application. In their submissions to the Commission, the respondent Government claimed that the acts and omissions complained of were imputable exclusively to the “Turkish Republic of Northern Cyprus” (the “TRNC”), an independent State established by the Turkish-Cypriot community in the exercise of its right to self-determination and possessing exclusive control and authority over the territory north of the United Nations buffer-zone. The respondent Government averred in this connection that the Court, in its Loizidou judgments ( preliminary objections and merits ), had erroneously concluded that the “TRNC” was a subordinate local administration whose acts and omissions engaged the responsibility of Turkey under Article 1 of the Convention.",
"70. As in the proceedings before the Commission, the applicant Government contended before the Court that the “TRNC” was an illegal entity under international law since it owed its existence to the respondent State's unlawful act of invasion of the northern part of Cyprus in 1974 and to its continuing unlawful occupation of that part of Cyprus ever since. The respondent State's attempt to reinforce the division of Cyprus through the proclamation of the establishment of the “TRNC” in 1983 was vigorously condemned by the international community, as evidenced by the adoption by the United Nations Security Council of Resolutions 541 (1983) and 550 (1984) and by the Council of Europe's Committee of Ministers of its resolution of 24 November 1983 (see paragraph 14 above).",
"71. The applicant Government stressed that even if Turkey had no legal title in international law to northern Cyprus, Turkey did have legal responsibility for that area in Convention terms, given that she exercised overall military and economic control over the area. This overall and, in addition, exclusive control of the occupied area was confirmed by irrefutable evidence of Turkey's power to dictate the course of events in the occupied area. In the applicant Government's submission, a Contracting State to the Convention could not, by way of delegation of powers to a subordinate and unlawful administration, avoid its responsibility for breaches of the Convention, indeed of international law in general. To hold otherwise would, in the present context of northern Cyprus, give rise to a grave lacuna in the system of human-rights protection and, indeed, render the Convention system there inoperative.",
"72. The applicant Government requested the Court to find, like the Commission, that the Loizidou judgments ( preliminary objections and merits ) defeated the respondent Government's arguments since they confirmed that, as long as the Republic of Cyprus was unlawfully prevented from exercising its rightful jurisdiction in northern Cyprus, Turkey had “jurisdiction” within the meaning of Article 1 of the Convention and was, accordingly, accountable for violations of the Convention committed in that area.",
"73. In a further submission, the applicant Government requested the Court to rule that the respondent State was not only accountable under the Convention for the acts and omissions of public authorities operating in the “TRNC”, but also those of private individuals. By way of anticipation of their more detailed submissions on the merits, the applicant Government claimed at this stage that Greek Cypriots living in northern Cyprus were racially harassed by Turkish settlers with the connivance and knowledge of the “TRNC” authorities for whose acts Turkey was responsible.",
"74. The Commission rejected the respondent Government's arguments. With particular reference to paragraph 56 (pp. 2235-36) of the Court's Loizidou judgment ( merits ), it concluded that Turkey's responsibility under the Convention had now to be considered to extend to all acts of the “TRNC” and that that responsibility covered the entire range of complaints set out in the instant application, irrespective of whether they related to acts or omissions of the Turkish or Turkish-Cypriot authorities.",
"75. The Court recalls that in the Loizidou case the respondent State denied that it had jurisdiction in northern Cyprus and to that end invoked arguments similar to those raised before the Commission in the instant case. The Court rejected those arguments in its Loizidou judgment ( merits ) with reference to the imputability principles developed in its preceding judgment on the respondent State's preliminary objections to the admissibility of the case.",
"76. More precisely, the Court considered in its Loizidou judgment ( merits ) (pp. 2234-36) and in connection with that particular applicant's plight:",
"“52. As regards the question of imputability, the Court recalls in the first place that in its above-mentioned Loizidou judgment ( preliminary objections ) (pp. 23-24, § 62) it stressed that under its established case-law the concept of “jurisdiction” under Article 1 of the Convention is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration...",
"...",
"54. It is important for the Court's assessment of the imputability issue that the Turkish Government have acknowledged that the applicant's loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the 'TRNC'... Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property...",
"However, throughout the proceedings the Turkish Government have denied State responsibility for the matters complained of, maintaining that its armed forces are acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous 'TRNC' authorities.",
"...",
"56. ...",
"It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the 'TRNC'. It is obvious from the large number of troops engaged in active duties in northern Cyprus ... that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the 'TRNC'... Those affected by such policies or actions therefore come within the 'jurisdiction' of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.”",
"77. It is of course true that the Court in the Loizidou case was addressing an individual's complaint concerning the continuing refusal of the authorities to allow her access to her property. However, it is to be observed that the Court's reasoning is framed in terms of a broad statement of principle as regards Turkey's general responsibility under the Convention for the policies and actions of the “TRNC” authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey's “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.",
"78. In the above connection, the Court must have regard to the special character of the Convention as an instrument of European public order ( ordre public ) for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties” (see the Loizidou judgment ( preliminary objections ) cited above, p. 31, § 93). Having regard to the applicant Government's continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention's fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court.",
"79. The Court observes that the applicant Government raise the issue of imputability throughout their pleadings on the merits. Having regard to its conclusion on this issue, the Court does not consider it necessary to re ‑ address the matter when examining the substance of the applicant Government's complaints under the Convention.",
"80. The Court concludes, accordingly, and subject to its subsequent considerations on the issue of private parties (see paragraph 81 below), that the matters complained of in the instant application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State's responsibility under the Convention.",
"81. As to the applicant Government's further claim that this “jurisdiction” must also be taken to extend to the acts of private parties in northern Cyprus who violate the rights of Greek Cypriots or Turkish Cypriots living there, the Court considers it appropriate to revert to this matter when examining the merits of the specific complaints raised by the applicant Government in this context. It confines itself to noting at this stage that the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State's responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention.",
"4. As to the requirement to exhaust domestic remedies",
"82. The respondent Government maintained in the proceedings before the Commission that the “TRNC” had a fully developed system of independent courts which were accessible to every individual. Furthermore, Greek Cypriots and Maronites living in northern Cyprus were regarded as “TRNC” citizens and enjoyed the same rights and remedies as Turkish Cypriots living there. To illustrate their view of the effectiveness of local remedies, the respondent Government drew the Commission's attention to cases in which Greek Cypriots living in the Karpas region of northern Cyprus successfully sued the Attorney-General of the “TRNC” under the Civil Wrongs Law in respect of property matters. The respondent Government claimed in this connection that the applicant Government actively discouraged Greek Cypriots and Maronites living in northern Cyprus from recognising “TRNC” institutions, with the result that they did not seek redress for their grievances through the “TRNC” legal system.",
"83. The applicant Government, in the proceedings before the Court, maintained their opposition to the above arguments. They stressed that the description given by the respondent Government of the “TRNC”'s constitutional and legal order disregarded the context of total unlawfulness in which the “constitution and laws” were created. The applicant Government reiterated their view that the establishment of the “TRNC” in 1983 and its legal and constitutional apparatus stemmed directly from the aggression waged against the Republic of Cyprus by Turkey in 1974. This aggression continued to manifest itself in the continuing unlawful occupation of northern Cyprus. The applicant Government contended that, having regard to the continuing military occupation and to the fact that the “TRNC” was a subordinate local administration of the respondent State, it was unrealistic to expect that the local administrative or judicial authorities could issue effective decisions against persons exercising authority with the backing of the occupation army in order to remedy violations of human rights committed in furtherance of the general policies of the regime in the occupied area.",
"84. The applicant Government stated before the Court that their primary starting-point was that the relevant applicable law in northern Cyprus remained that of the Republic of Cyprus and that it was inappropriate to consider other laws. However if, and only if, the Court were minded to consider such laws, this should not lead to approval of the Commission's findings and reasoning in relation to Articles 6, 13 and former Article 26 of the Convention. They submitted that, contrary to the Commission's view, it was not a necessary corollary of the “TRNC” being considered a subordinate local administration of the respondent State that the remedies available before the “TRNC” had to be regarded as “domestic remedies” of the respondent State for the purposes of former Article 26 of the Convention. The applicant Government pleaded in this connection that even the respondent State did not consider “TRNC” remedies to be remedies provided by Turkey as a Contracting Party. Moreover, given that the local administration was subordinated to and controlled by the respondent State not through the principle of legality and democratic rule but through military control and occupation, “TRNC” courts could not be considered to be “established by law” within the meaning of Article 6 of the Convention. The applicant Government claimed that it would be wrong in such circumstances to expect aggrieved individuals to have recourse to remedies for the purposes of the former Article 26 exhaustion requirement when these remedies did not fulfil the standards of either Article 6 or, it must follow, Article 13 of the Convention.",
"85. In the applicant Government's submission, the Commission, at paragraphs 123 and 124 of its report, misconstrued the scope of the Advisory Opinion of the International Court of Justice in the Namibia case (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16).",
"86. The Commission, for its part, recalled that, with the exception of the respondent State, the “TRNC”'s claim to independent statehood was rejected and condemned by the international community. However, it further observed that the fact that the “TRNC” regime de facto existed and exercised de facto authority under the overall control of Turkey was not without consequences for the question of whether the remedies which the respondent State claimed were available within the “TRNC system” required to be exhausted by aggrieved individuals as a precondition to the admissibility of their complaints under the Convention. The Commission noted in this respect, and with reference to the above-mentioned Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 85 above), that even if the legitimacy of a State was not recognised by the international community, “international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, ... the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory” (loc. cit. p. 56, § 125). On the understanding that the remedies relied on by the respondent State were intended to benefit the entire population of northern Cyprus, and to the extent that such remedies could be considered effective, account must in principle be taken of them for the purposes of former Article 26 of the Convention.",
"87. In the Commission's conclusion, whether or not a particular remedy could be regarded as effective, and had therefore to be used, had to be determined in relation to the specific complaint at issue. The Commission observed in this regard that, to the extent that the applicant Government alleged that the complaints set out in the application resulted from administrative practices imputable to the respondent State, proof of the existence of such practices depended on the absence of effective remedies in relation to the acts alleged to constitute the said practices.",
"88. Having regard to these considerations, the Commission concluded that, for the purposes of former Article 26 of the Convention, remedies available in northern Cyprus were to be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness had to be considered in the specific circumstances where it arose.",
"89. The Court notes that the Commission avoided making general statements on the validity of the acts of the “TRNC” authorities from the standpoint of international law and confined its considerations to the Convention-specific issue of the application of the exhaustion requirement contained in former Article 26 of the Convention in the context of the “constitutional” and “legal” system established within the “TRNC”. The Court endorses this approach. It recalls in this connection that, although the Court in its Loizidou judgment ( merits ) refused to attribute legal validity to such provisions as “Article 159 of the TRNC Constitution”, it did so with respect to the Convention (p. 2231, § 44). This conclusion was all the more compelling since the Article in question purported to vest in the “TRNC” authorities, irreversibly and without payment of any compensation, the applicant's rights to her land in northern Cyprus. Indeed, the Court in its judgment did not “consider it desirable, let alone necessary, in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the 'TRNC'” (ibid., p. 2231, § 45).",
"90. In the Court's opinion, and without in any way putting in doubt either the view adopted by the international community regarding the establishment of the “TRNC” (see paragraph 14 above) or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see paragraph 61 above), it cannot be excluded that former Article 26 of the Convention requires that remedies made available to individuals generally in northern Cyprus to enable them to secure redress for violations of their Convention rights have to be tested. The Court, like the Commission, would characterise the developments which have occurred in northern Cyprus since 1974 in terms of the exercise of de facto authority by the “TRNC”. As it observed in its Loizidou judgment ( merits ) with reference to the Advisory Opinion of the International Court of Justice in the Namibia case, international law recognises the legitimacy of certain legal arrangements and transactions in situations such as the one obtaining in the “TRNC”, for instance as regards the registration of births, deaths, and marriages, “the effects of which can only be ignored to the detriment of the inhabitants of the [t]erritory” (loc. cit., p. 2231, § 45).",
"91. The Court disagrees with the applicant Government's criticism of the Commission's reliance on this part of the Advisory Opinion. In its view, and judged solely from the standpoint of the Convention, the Advisory Opinion confirms that where it can be shown that remedies exist to the advantage of individuals and offer them reasonable prospects of success in preventing violations of the Convention, use should be made of such remedies. In reaching this conclusion, the Court considers that this requirement, applied in the context of the “TRNC”, is consistent with its earlier statement on the need to avoid in the territory of northern Cyprus the existence of a vacuum in the protection of the human rights guaranteed by the Convention (see paragraph 78 above).",
"92. It appears evident to the Court, despite the reservations the Greek ‑ Cypriot community in northern Cyprus may harbour regarding the “TRNC” courts, that the absence of such institutions would work to the detriment of the members of that community. Moreover, recognising the effectiveness of those bodies for the limited purpose of protecting the rights of the territory's inhabitants does not, in the Court's view and following the Advisory Opinion of the International Court of Justice, legitimise the “TRNC” in any way.",
"93. The Court recalls that, in its Advisory Opinion on Namibia, the International Court of Justice stated the following (1971 ICJ Reports, p. 56, § 125):",
"“In general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”",
"94. The Court observes that this passage was included in the Opinion as a result of various arguments made in the course of the proceedings preparatory to its adoption. Thus, the representative of the Netherlands pointed out to the International Court of Justice that the non-recognition of South Africa's illegal rule in Namibia “does not exclude taking into account the fact of exercise of powers in so far as that taking into account is necessary in order to do justice to the legitimate interest of the individual [who] is, in fact, subjected to that power” (Pleadings, vol. II, p. 130). The representative of the United States said that “[i]t would, for example, be a violation of the rights of individuals if a foreign State refused to recognise the right of Namibians to marry in accordance with the laws in force ... or would consider their children to be illegitimate. A contract for the sale of goods also should not be declared invalid merely because it was entered into in accordance with ordinary commercial laws applied to Namibia by South Africa” (Pleadings, vol. II, p. 503). These statements, by logical necessity, must be taken to extend to decisions taken by courts and relating to such everyday relations. The above citations show that, despite having been invited to do so by the Secretary-General of the United Nations, the International Court resolutely rejected the approach refusing any effect to unlawful de facto regimes.",
"95. The Court notes that this rejection was echoed and amplified in the separate opinions of Judges Dillard, de Castro and Onyeama. Judge Dillard (1971 ICJ Reports, pp. 166-67) pointed out that the maxim “ ex injuria jus non oritur ” was not an absolute one and added that “[w]ere it otherwise the general interest in the security of transactions would be too greatly invaded and the cause of minimising needless hardship and friction would be hindered rather that helped”. Judge de Castro (ibid., pp. 218-19) drew a distinction between acts of the de facto authorities in Namibia relating to acts or transactions “relating to public property, concessions, etc.” and “acts and rights of private persons” which “should be regarded as valid (validity of entries in the civil registers and in the Land Registry, validity of marriages, validity of judgments of the civil courts, etc.)”. Judge Onyeama said that, although there was an obligation for third States not to recognise the legality of South Africa's presence in Namibia, that duty did not necessarily extend “to refusing to recognise the validity of South Africa's acts on behalf of or concerning Namibia in view of the fact that the administration of South Africa over Namibia (illegal though it is) still constitutes the de facto government of the territory”.",
"96. It is to be noted that the International Court's Advisory Opinion, read in conjunction with the pleadings and the explanations given by some of that court's members, shows clearly that, in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.",
"97. The Court notes that the view expressed by the International Court of Justice in the context described in the preceding paragraph is by no means an isolated one. It is confirmed both by authoritative writers on the subject of de facto entities in international law and by existing practice, particularly judgments of domestic courts on the status of decisions taken by the authorities of de facto entities. This is true, in particular, for private-law relationships and acts of organs of de facto authorities relating to such relationships. Some State organs have gone further and factually recognised even acts related to public-law situations, for example by granting sovereign immunity to de facto entities or by refusing to challenge takings of property by the organs of such entities.",
"98. For the Court, the conclusion to be drawn is that it cannot simply disregard the judicial organs set up by the “TRNC” in so far as the relationships at issue in the present case are concerned. It is in the very interest of the inhabitants of the “TRNC”, including Greek Cypriots, to be able to seek the protection of such organs; and if the “TRNC” authorities had not established them, this could rightly be considered to run counter to the Convention. Accordingly, the inhabitants of the territory may be required to exhaust these remedies, unless their inexistence or ineffectiveness can be proved – a point to be examined on a case-by-case basis.",
"99. The Court, like the Commission, will thus examine in respect of each of the violations alleged by the applicant Government whether the persons concerned could have availed themselves of effective remedies to secure redress. It will have regard in particular to whether the existence of any remedies is sufficiently certain not only in theory but in practice and whether there are any special circumstances which absolve the persons concerned by the instant application from the obligation to exhaust the remedies which, as alleged by the respondent Government before the Commission, were at their disposal. The Court recalls in this latter respect that the exhaustion rule is inapplicable where an administrative practice, namely a repetition of acts incompatible with the Convention and official tolerance by the State authorities, has been shown to exist and is of such a nature as to make proceedings futile or ineffective (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 66-67).",
"100. In view of the above considerations, the Court does not consider it necessary at this stage to examine the applicant Government's broader criticism of the court and administrative system in the “TRNC” under Articles 6 and 13 of the Convention.",
"101. The Court does wish to add, however, that the applicant Government's reliance on the illegality of the “TRNC” courts seems to contradict the assertion made by that same Government that Turkey is responsible for the violations alleged in northern Cyprus – an assertion which has been accepted by the Court (see paragraphs 75-81 above). It appears indeed difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully occupied and administered by it and to deny that State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts. To allow that opportunity to the respondent State in the framework of the present application in no way amounts to an indirect legitimisation of a regime which is unlawful under international law. The same type of contradiction arises between the alleged unlawfulness of the institutions set up by the “TRNC” and the applicant Government's argument, to be examined at a later stage (see, for example paragraphs 318-21 below), that there has been a breach of Article 13 of the Convention: it cannot be asserted, on the one hand, that there has been a violation of that Article because a State has not provided a remedy while asserting, on the other hand, that any such remedy, if provided, would be null and void.",
"102. The Court concludes accordingly that, for the purposes of former Article 26 (current Article 35 § 1) of the Convention, remedies available in the “TRNC” may be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises.",
"5. As to the requirement of the six-month rule",
"103. The Court observes that although the Commission reserved this issue to the merits stage, neither Government submitted any arguments thereon; nor have the applicant Government reverted to the matter in their written or oral pleadings before the Court.",
"104. The Court, in line with the Commission's approach, confirms that in so far as the applicant Government have alleged continuing violations resulting from administrative practices, it will disregard situations which ended six months before the date on which the application was introduced, namely 22 November 1994. Therefore, and like the Commission, the Court considers that practices which are shown to have ended before 22 May 1994 fall outside the scope of its examination.",
"II. THE ESTABLISHMENT OF THE facts AND ASSESSMENT OF THE EVIDENCE",
"105. The Court notes that the Commission had regard to written as well as, in respect of certain categories of complaints, oral evidence in order to clarify and establish the facts underlying the allegations advanced by the applicant Government. As appropriate, the Commission further relied on the findings contained in its 1976 and 1983 reports (see paragraph 17 above) as well as documentary materials obtained of its own motion and, as a principal source, materials submitted by the parties. As to the written evidence of the parties, it observes that the Commission admitted to the case file all written submissions made by both Governments at the admissibility and merits stages up until 14 September 1998. The Commission's strict adherence to this deadline resulted in its decision of 5 March 1999 to reject the respondent Government's request to have admitted to the file an aide - mémoire on “measures relating to the living conditions of Greek Cypriots and Maronites in the Turkish Republic of Northern Cyprus”. The Court notes that this was the only document excluded by the Commission, all other materials having been admitted in accordance with respect for the requirements of procedural equality between the parties.",
"106. The Court observes that where it was impossible to guarantee full respect for the principle of equality of arms in the proceedings before the Commission, for example on account of the limited time available to a party to reply fully to the other's submissions, the Commission took this factor into account in its assessment of the evidential value of the material at issue. Although the Court must scrutinise any objections raised by the applicant Government to the Commission's findings of fact and its assessment of the evidence, it notes that, as regards documentary materials, both parties were given a full opportunity to comment on all such materials in their pleadings before the Court, including the above-mentioned aide-mémoire, which was admitted to the file by virtue of a procedural decision taken by the Court on 24 November 1999.",
"107. As regards oral evidence, the Court notes that the Commission appointed three delegates to hear evidence on the Convention issues relating to the general living conditions of the so-called “enclaved” Greek Cypriots and the situation of Turkish Cypriots living in northern Cyprus, in particular political dissidents and members of the Turkish-Cypriot Gypsy minority. Witnesses were heard in Strasbourg on 27 and 28 November 1997, in Nicosia (mostly) on 22 and 23 February 1998, and in London on 22 April 1998. The investigation also involved visits to certain localities (the Ledra Palace crossing-point over the demarcation line, the court building in northern Nicosia and Greek-Cypriot villages in the Karpas area). Oral statements were taken by the delegates from a number of officials and other persons encountered during the visit to northern Cyprus including the Karpas peninsula. At the first hearing, ten witnesses proposed by the applicant Government gave evidence, three of whom remained unidentified. At the second hearing, the Commission delegates heard the evidence of twelve witnesses, seven of whom were proposed by the respondent Government and five by the applicant Government (including four unidentified witnesses). At the third hearing in London, the delegates heard five witnesses proposed by the applicant Government, four of whom remained unidentified.",
"108. The Court observes that the Commission delegates took all necessary steps to ensure that the taking of evidence from unidentified witnesses complied with the fairness requirements of Article 6 of the Convention.",
"109. It further observes that, in so far as the respondent Government were critical of the arrangements drawn up by the delegates to hear the evidence of the unidentified witnesses proposed by the applicant Government, those arrangements were consistent with the screening procedure requested by the respondent State itself to ensure the security of unnamed witnesses in an earlier and unrelated case (Sargın and Yağci v. Turkey, applications nos. 14116-14117/88). In the Court's opinion, the handicaps alleged by the respondent Government in the proceedings before the Commission were sufficiently counterbalanced by the procedures followed by the Commission. It also observes that the Commission, in its assessment of the evidence given by unidentified witnesses, adopted a cautious approach by ascertaining its evidential value with reference to the particular nature of each of the witnesses' testimony, and its findings were not based either solely or to a decisive extent on anonymous witness statements (see the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 712, §§ 54-55).",
"110. The applicant Government, in the proceedings before the Court, have not contested the modalities used for hearing the evidence of unidentified witnesses. They have, on the other hand, disputed the limits placed by the delegates on the number of witnesses who could be heard by them. This is particularly true of the Commission's inquiry into their allegations concerning the situation of Turkish Cypriots and members of the Gypsy community in northern Cyprus (see paragraph 338 below). Although the Court must revert to this matter when conducting its own assessment of whether the facts found by the Commission bear out the applicant Government's allegations, it considers it appropriate at this juncture to examine the substance of their criticism. It notes in this regard that the applicant Government were in fact requested by the Commission to select a limited number of witnesses to testify to the claim that the Convention rights of Turkish Cypriots and members of the Gypsy community in northern Cyprus were being violated by the respondent State. The Court does not consider that the Commission's approach can be criticised from the standpoint of procedural fairness. In the first place, the delegates heard the testimony of five witnesses proposed by the applicant Government and there is no reason to doubt that they were specifically selected in accordance with the applicant Government's perception of the importance of their testimony. Secondly, the effective discharge of the Commission's fact-finding role necessarily obliged it to regulate the procedure for the taking of oral evidence, having regard to constraints of time and to its own assessment of the relevance of additional witness testimony.",
"111. For these reasons, the Court rejects the applicant Government's criticism in this respect.",
"112. The Court also observes that in its assessment of the evidence in relation to the various complaints declared admissible, the Commission applied the standard of proof “beyond reasonable doubt” as enunciated by the Court in its Ireland v. the United Kingdom judgment of 18 January 1978 (Series A no. 25), it being noted that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., pp. 64-65, § 161).",
"113. The Court, for its part, endorses the application of this standard, all the more so since it was first articulated in the context of a previous inter ‑ State case and has, since the date of the adoption of the judgment in that case, become part of the Court's established case-law (for a recent example, see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).",
"Moreover, as regards the establishment of the existence of administrative practices, the Court does not rely on the concept that the burden of proof is borne by one or the other of the two Governments concerned. Rather, it must examine all the material before it, irrespective of its origin (see the above-mentioned Ireland v. the United Kingdom judgment, p. 64 § 160).",
"114. The Court notes, however, that the applicant Government have disputed the appropriateness of applying the above-mentioned standard of proof with respect to their allegations that the violations of the Convention of which they complain result from administrative practices on the part of the respondent State. In their submission, the Commission erred in not having regard to the existence of “substantial evidence” of administrative practices and its reliance on the “beyond reasonable doubt” standard prevented it from reaching the correct conclusion on the facts as regards a number of complaints. For the applicant Government, the standard of proof applied by the Commission is at variance with the approach followed by the Court in its Ireland v. the United Kingdom judgment, an approach which, they maintain, had already been anticipated in the Commission's decision in the “Greek case” (Yearbook 12).",
"115. The Court recalls however that in its Ireland v. the United Kingdom judgment, it rejected the Irish Government's submission that the “beyond reasonable doubt” standard of proof was an excessively rigid standard for establishing the existence of an administrative practice of violation of Article 3 of the Convention (loc. cit., pp. 64-65, § 161). The “beyond reasonable doubt” standard was applied in that case in order to determine whether the evidence bore out the allegation of a practice of violation. The Court will accordingly assess the facts as found by the Commission with reference to this standard. Furthermore, the Court will apply the definition of an administrative practice incompatible with the Convention set out in its Ireland v. the United Kingdom judgment, namely an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system (ibid., p. 64, § 159).",
"116. The Court further recalls that, in the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. In the context of the instant case, it is incumbent on the respondent Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the aggrieved individuals' complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant Government to establish that the remedy advanced by the respondent Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving the persons concerned from the requirement of exhausting that remedy. One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what the authorities have done in response to the scale and seriousness of the matters complained of (see, mutatis mutandis, the above-mentioned Akdivar and Others judgment, p. 1211, § 68).",
"117. Having regard to the above considerations, the Court recalls its settled case-law to the effect that under the Convention system prior to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission's findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among many authorities, the above-mentioned Akdivar and Others judgment, p. 1214, § 78; and, more recently, Salman cited above, § 89).",
"118. The Court has already noted that the applicant Government have impugned the findings of the Commission as regards certain of their allegations, considering them to be against the weight of the evidence adduced. The Court proposes to address the applicant Government's challenges when considering the merits of their allegations.",
"III. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives",
"A. Greek-Cypriot missing persons",
"1. As to the facts established by the Commission",
"119. At the hearing before the Court the applicant Government stated that the number of missing persons was currently 1,485 and that the evidence clearly pointed to the fact that the missing persons were either detained by, or were in the custody of or under the actual authority and responsibility of, the Turkish army or its militia and were last seen in areas which were under the effective control of the respondent State. They maintained, in addition, that the Court should proceed on the assumption that the missing persons were still alive, unless there was evidence to the contrary.",
"120. The Court notes at the outset that the applicant Government have not contested the facts as found by the Commission (see paragraphs 25-27 above). For its part, it does not see any exceptional circumstances which would lead it to depart from the Commission's findings of fact, bearing in mind the latter's careful analysis of all material evidence including the findings reached by it in its 1976 and 1983 reports. Like the Commission, the Court does not consider it appropriate to estimate the number of persons who fall into the category of “missing persons”. It limits itself to observing that figures are communicated by the applicant Government to the United Nations Committee on Missing Persons (“CMP”) and revised in accordance with the most recent information which becomes available.",
"121. Furthermore, the Court shares the Commission's concern to limit its inquiry to ascertaining the extent, if any, to which the authorities of the respondent State have clarified the fate or whereabouts of the missing persons. It is not its task to make findings on the evidence on whether any of these persons are alive or dead or have been killed in circumstances which engage the liability of the respondent State. Indeed, the applicant Government have requested the Court to proceed on the assumption that the persons at issue are still alive. The Court will revert to this point in the context of the applicant Government's allegations under Article 2 of the Convention.",
"122. On the above understanding the Court will examine the merits of the applicant Government's allegations.",
"2. As to the merits of the applicant Government's complaints",
"(a) Article 2 of the Convention",
"123. The applicant Government requested the Court to find that the facts disclosed a continuing violation of Article 2 from the standpoint of both the procedural and substantive obligations contained in that provision. Article 2 provides as relevant:",
"“1. Everyone's right to life shall be protected by law...”",
"124. In the applicant Government's submission, the procedural violation alleged was committed as a matter of administrative practice, having regard to the continuing failure of the authorities of the respondent State to conduct any investigation whatsoever into the fate of the missing persons. In particular, there was no evidence that the authorities of the respondent State had carried out searches for the dead or wounded, let alone concerned themselves with the burial of the dead. Furthermore, the respondent State, by virtue of the presence of its armed forces, directly continued to prevent investigations in the occupied area to trace those persons who were still missing and continued to refuse to account for their fate.",
"125. The applicant Government further stressed that the procedural obligation to protect the right to life devolving on the respondent State in application of Article 2 could not be discharged with reference to the ongoing work of the CMP (see paragraph 16 above), having regard to the limited scope of that body's mandate and to the characteristics of an “effective investigation” as defined in the Court's case-law in the context of the Convention provision at issue.",
"126. From the standpoint of the substantive obligation contained in Article 2, the applicant Government requested the Court to find and declare, in line with the Commission's conclusion, that the respondent State had failed to take the necessary operational measures to protect the right to life of the missing persons all of whom had disappeared in life-threatening circumstances known to, and indeed, created by, the respondent State.",
"127. The Commission observed that the missing persons had disappeared in circumstances which were life-threatening, having regard, inter alia, to the fact that their disappearance had occurred at a time when there was clear evidence of large-scale killings including as a result of acts of criminal behaviour outside the fighting zones. For the Commission, and with reference to the Court's case-law, the authorities of the respondent State had a positive obligation under Article 2 to conduct effective investigations into the circumstances surrounding the disappearances. Moreover, this obligation had to be seen as a continuing one in view of the consideration that the missing persons might have lost their lives as a result of crimes not subject to limitation.",
"128. The Commission found accordingly that Article 2 had been violated by virtue of a lack of effective investigation by the authorities of the respondent State and that that failing could not be compensated for by the respondent State's contribution to work undertaken by the CMP.",
"129. The Court observes that the applicant Government contend first and foremost that the missing persons must be presumed to be still alive unless there is clear evidence to the contrary (see paragraph 119 above). Although the evidence adduced before the Commission confirms a very high incidence of military and civilian deaths during the military operations of July and August 1974, the Court reiterates that it cannot speculate as to whether any of the missing persons have in fact been killed by either the Turkish forces or Turkish-Cypriot paramilitaries into whose hands they may have fallen. It is true that the head of the “TRNC”, Mr Denktaş, broadcast a statement on 1 March 1996 admitting that the Turkish army had handed over Greek-Cypriot prisoners to Turkish-Cypriot fighters under Turkish command and that these prisoners had then been killed (see paragraph 25 above). It is equally the case that, in February 1998, Professor Yalçin Küçük, who was a serving Turkish officer in 1974, asserted that the Turkish army had engaged in widespread killings of civilians (see paragraph 25 above). Although all of these statements have given rise to undoubted concern, especially in the minds of the relatives of the missing persons, the Court considers that they are insufficient to establish the respondent State's liability for the deaths of any of the missing persons. It is mere speculation that any of these persons were killed in the circumstances described in these accounts.",
"130. The Court notes that the evidence given of killings carried out directly by Turkish soldiers or with their connivance relates to a period which is outside the scope of the present application. Indeed, it is to be noted that the Commission was unable to establish on the facts whether any of the missing persons were killed in circumstances for which the respondent State can be held responsible under the substantive limb of Article 2 of the Convention. The Court concludes, therefore, that it cannot accept the applicant Government's allegations that the facts disclose a substantive violation of Article 2 of the Convention in respect of any of the missing persons.",
"131. For the Court, the applicant Government's allegations must, however, be examined in the context of a Contracting State's procedural obligation under Article 2 to protect the right to life. It recalls in this connection that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State (see, mutatis mutandis, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 329, § 105) or by non-State agents (see, mutatis mutandis, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1778, § 82; the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 100; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 103, ECHR 1999-IV).",
"132. The Court recalls that there is no proof that any of the missing persons have been unlawfully killed. However, in its opinion, and of relevance to the instant case, the above-mentioned procedural obligation also arises upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the State, subsequently disappeared in a context which may be considered life-threatening.",
"133. Against this background, the Court observes that the evidence bears out the applicant Government's claim that many persons now missing were detained either by Turkish or Turkish-Cypriot forces. Their detention occurred at a time when the conduct of military operations was accompanied by arrests and killings on a large scale. The Commission correctly described the situation as life-threatening. The above-mentioned broadcast statement of Mr Denktaş and the later report of Professor Küçük, if not conclusive of the respondent State's liability for the death of missing persons are, at the very least, clear indications of the climate of risk and fear obtaining at the material time and of the real dangers to which detainees were exposed.",
"134. That the missing persons disappeared against this background cannot be denied. The Court cannot but note that the authorities of the respondent State have never undertaken any investigation into the claims made by the relatives of the missing persons that the latter had disappeared after being detained in circumstances in which there was real cause to fear for their welfare. It must be noted in this connection that there was no official follow-up to Mr Denktaş's alarming statement. No attempt was made to identify the names of the persons who were reportedly released from Turkish custody into the hands of Turkish-Cypriot paramilitaries or to inquire into the whereabouts of the places where the bodies were disposed of. It does not appear either that any official inquiry was made into the claim that Greek-Cypriot prisoners were transferred to Turkey.",
"135. The Court agrees with the applicant Government that the respondent State's procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP. Like the Commission, the Court notes that, although the CMP's procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body's investigations (see paragraph 27 above).",
"136. Having regard to the above considerations, the Court concludes that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances.",
"(b) Article 4 of the Convention",
"137. The applicant Government requested the Court to find and declare that the circumstances of the case also disclosed a breach of Article 4 of the Convention, which states as relevant:",
"“1. No one shall be held in slavery or servitude.",
"...”",
"138. The applicant Government contended that, in the absence of any conclusive findings that the missing persons were now dead, it should be presumed that they were still being detained in conditions which, given the length of the period which had elapsed since the events of 1974, should be described as servitude. In the applicant Government's view, this proposition could only be contradicted if the Court were to find it proved that the missing persons were now dead, in which case it should be concluded that the respondent State was in breach of its obligations under Article 2.",
"139. The Commission found that there had been no breach of Article 4, being of the view that there was nothing in the evidence which could support the assumption that during the relevant period any of the missing persons were still in Turkish custody and were being held in conditions which violated Article 4.",
"140. The Court agrees with the Commission's finding. It notes in this respect that, like the Commission, it has refused to speculate on the fate or whereabouts of the missing persons. Furthermore, it has accepted the facts as established by the Commission.",
"141. It follows that no breach of Article 4 of the Convention has been established.",
"(c) Article 5 of the Convention",
"142. The applicant Government maintained that Article 5 of the Convention had been breached by the respondent Government as a matter of administrative practice. Article 5 provides as relevant:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...”",
"143. According to the applicant Government, the fact that the authorities of the respondent State had failed to carry out a prompt and effective investigation into the well-documented circumstances surrounding the detention and subsequent disappearance of a large but indefinite number of Greek-Cypriot missing persons gave rise to a violation of the procedural obligations inherent in Article 5. The applicant Government reiterated their assertion that the respondent State was presumed responsible for the fate of the missing persons since the evidence clearly established that they were last seen in the control and custody of the Turkish military or their agents.",
"144. Furthermore, the detention of the missing persons could not be justified with reference to the requirements of Article 5 and was to be considered unlawful. The applicant Government averred in this connection that the respondent State had failed to keep any accurate or reliable records of the persons detained by its authorities and agents or to take any other effective measures which would have served to safeguard against the risk of disappearance.",
"145. The Commission concluded that the respondent State had failed in its obligation to carry out a prompt and effective investigation in respect of an arguable claim that Greek-Cypriot persons who were detained by Turkish forces or their agents in 1974 disappeared thereafter. For the Commission, a breach of the Article 5 obligation had to be construed as a continuing violation, given that the Commission had already found in its 1983 report on application no. 8007/77 that no information had been provided by the respondent Government on the fate of missing Greek Cypriots who had disappeared in Turkish custody. The Commission stressed that there could be no limitation in time as regards the duty to investigate and inform, especially as it could not be ruled out that the detained persons who had disappeared might have been the victims of the most serious crimes, including war crimes or crimes against humanity.",
"146. The Commission, on the other hand, found there had been no violation of Article 5 by virtue of actual detention of Greek-Cypriot missing persons. It noted in this regard that there was no evidence to support the assumption that during the period under consideration any missing Greek Cypriots were still detained by the Turkish or Turkish-Cypriot authorities.",
"147. The Court stresses at the outset that the unacknowledged detention of an individual is a complete negation of the guarantees of liberty and security of the person contained in Article 5 of the Convention and a most grave violation of that Article. Having assumed control over a given individual, it is incumbent on the authorities to account for his or her whereabouts. It is for this reason that Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1185, § 124).",
"148. The Court refers to the irrefutable evidence that Greek Cypriots were held by Turkish or Turkish-Cypriot forces. There is no indication of any records having been kept of either the identities of those detained or the dates or location of their detention. From a humanitarian point of view, this failing cannot be excused with reference either to the fighting which took place at the relevant time or to the overall confused and tense state of affairs. Seen in terms of Article 5 of the Convention, the absence of such information has made it impossible to allay the concerns of the relatives of the missing persons about the latter's fate. Notwithstanding the impossibility of naming those who were taken into custody, the respondent State should have made other inquiries with a view to accounting for the disappearances. As noted earlier, there has been no official reaction to new evidence that Greek-Cypriot missing persons were taken into Turkish custody (see paragraph 134 above).",
"149. The Court has addressed this allegation from the angle of the procedural requirements of Article 5 of the Convention and the obligations devolving on the respondent State as a Contracting Party to the Convention. Like the Commission, and without questioning the value of the humanitarian work being undertaken by the CMP, the Court reiterates that those obligations cannot be discharged with reference to the nature of the CMP's investigation (see paragraph 135 above).",
"150. The Court concludes that, during the period under consideration, there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared.",
"151. The Court, on the other hand finds, like the Commission, that it has not been established that during the period under consideration any of the Greek-Cypriot missing persons were actually being detained by the Turkish ‑ Cypriot authorities.",
"(d) Articles 3, 6, 8, 13, 14 and 17 of the Convention",
"152. The Court observes that, at the merits stage of the proceedings before the Commission, the applicant Government submitted that the facts of the case disclosed violations of the above-mentioned Articles. The Commission concluded that these complaints were outside the scope of its admissibility decision and on that account could not be examined.",
"153. The Court further observes that the applicant Government have not pursued these complaints either in their memorial or at the public hearing; nor have they sought to dispute the Commission's interpretation of the scope of its admissibility decision. In these circumstances the Court considers that there is no reason to consider either its jurisdiction to examine these complaints or their merits.",
"The Court concludes therefore that it is not necessary to examine the applicant Government's complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons.",
"B. Greek-Cypriot missing persons' relatives",
"1. Article 3 of the Convention",
"154. The applicant Government, for the reasons given by the Commission, requested the Court to rule that the continuing suffering of the families of missing persons constituted not only a continuing but also an aggravated violation of Article 3 of the Convention, which states:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"155. In the Commission's opinion, the circumstances relied on by the applicant Government disclosed a continuing violation of Article 3 regarding the relatives of the missing persons. For the Commission, in view of the circumstances in which their family members disappeared following a military intervention during which many persons were killed or taken prisoner and where the area was subsequently sealed off and became inaccessible to the relatives, the latter must undoubtedly have suffered most painful uncertainty and anxiety. Furthermore, their mental anguish did not vanish with the passing of time. The Commission found that the treatment to which the relatives of the missing persons were subjected could properly be characterised as inhuman within the meaning of Article 3.",
"156. The Court recalls that the question whether a family member of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court further recalls that the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather in the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct (see Çakici v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV).",
"157. The Court observes that the authorities of the respondent State have failed to undertake any investigation into the circumstances surrounding the disappearance of the missing persons. In the absence of any information about their fate, the relatives of persons who went missing during the events of July and August 1974 were condemned to live in a prolonged state of acute anxiety which cannot be said to have been erased with the passage of time. The Court does not consider, in the circumstances of this case, that the fact that certain relatives may not have actually witnessed the detention of family members or complained about such to the authorities of the respondent State deprives them of victim status under Article 3. It recalls that the military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of families. The overall context must still be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endure the agony of not knowing whether family members were killed in the conflict or are still in detention or, if detained, have since died. The fact that a very substantial number of Greek Cypriots had to seek refuge in the south coupled with the continuing division of Cyprus must be considered to constitute very serious obstacles to their quest for information. The provision of such information is the responsibility of the authorities of the respondent State. This responsibility has not been discharged. For the Court, the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attains a level of severity which can only be categorised as inhuman treatment within the meaning of Article 3.",
"158. For the above reasons, the Court concludes that, during the period under consideration, there has been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek-Cypriot missing persons.",
"2. Articles 8 and 10 of the Convention",
"159. The applicant Government further submitted in their memorial that the persistent failure of the authorities of the respondent State to account to the families of the missing persons constituted a grave disregard for their right to respect for family life and, in addition, a breach of their right to receive information. In the applicant Government's submission the responsibility of the respondent State was engaged in respect of Articles 8 and 10 of the Convention, both of which provisions should be considered to have been breached in the circumstances.",
"160. The Court observes that the Commission was of the view that the applicant Government's complaints under Articles 8 and 10 were in essence directed at the treatment to which the relatives of the missing persons were subjected in their attempts to ascertain the latter's fate. On that understanding the Commission confined its examination to the issues which such treatment raised from the standpoint of Article 3.",
"161. The Court agrees with the Commission's approach. In view of its conclusion under Article 3, with its emphasis on the effect which the lack of information had on the families of missing persons, it finds it unnecessary to examine separately the complaints which the applicant Government have formulated in terms of Articles 8 and 10 of the Convention.",
"IV. Alleged violations of the rights of displaced persons to respect for their home and property",
"A. As to the facts established by the Commission",
"162. The applicant Government endorsed the facts as found by the Commission (see paragraphs 30-33 above). In respect of those findings they requested the Court to conclude that the facts disclosed violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 as well as of Article 14 of the Convention taken in conjunction with these provisions. They further submitted that the facts at issue gave rise to violations of Articles 3, 17 and 18 of the Convention.",
"163. The Court considers that there are no exceptional circumstances which would lead it to take a different view of the facts established by the Commission (see paragraphs 30-33 above). It notes in this regard that the Commission was able to draw on the findings contained in its 1976 and 1983 reports and took into account the impact of “legislative” and other texts in force in the “TRNC” on the enjoyment of the rights invoked by the applicant Government. It further notes that the respondent Government did not contest the accuracy of several allegations of fact made by the applicant Government in the proceedings before the Commission (see paragraph 29 above).",
"164. The Court will accordingly examine the merits of the applicant Government's complaints with reference to the facts established by the Commission.",
"B. As to the merits of the applicant Government's complaints",
"1. Article 8 of the Convention",
"165. The applicant Government maintained that it was an unchallengeable proposition that it was the respondent State's actions which had prevented the displaced Greek Cypriots from returning to their homes, in violation of Article 8 of the Convention which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"166. The applicant Government declared that the policy of the respondent State, aimed at the division of Cyprus along racial lines, affected 211,000 displaced Greek Cypriots and their children as well as a number of Maronites, Armenians, Latins and individual citizens of the Republic of Cyprus who had exercised the option under the Constitution to be members of the Greek-Cypriot community. They submitted that the continuing refusal of the “TRNC” authorities to allow the displaced persons to return to the north violated not only the right to respect for their homes but also the right to respect for their family life. In this latter connection, the applicant Government observed that the impugned policy resulted in the separation of families.",
"167. In a further submission, the applicant Government requested the Court to find that the facts also disclosed a policy of deliberate destruction and manipulation of the human, cultural and natural environment and conditions of life in northern Cyprus. The applicant Government contended that this policy was based on the implantation of massive numbers of settlers from Turkey with the intention and the consequence of eliminating Greek presence and culture in northern Cyprus. In the view of the applicant Government, the notions of “home” and “private life” were broad enough to subsume the concept of sustaining existing cultural relationships within a subsisting cultural environment. Having regard to the destructive changes being wrought to that environment by the respondent State, it could only be concluded that the rights of the displaced persons to respect for their private life and home were being violated in this sense also.",
"168. The Commission observed in the first place that the issue of whether the persons concerned by the impugned measures could have been expected to use local remedies to seek redress for their grievances did not have to be examined. In the Commission's opinion, the refusal of the “TRNC” authorities to allow the displaced persons to return to their homes reflected an acknowledged official policy and, accordingly, an administrative practice. In these circumstances there was no Convention requirement to exhaust domestic remedies.",
"169. As to the merits of the complaints concerning the plight of the displaced persons, the Commission found, with reference to its conclusions in its 1976 and 1983 reports and the findings of fact in the instant case (see paragraphs 30-33 above), that these persons, without exception, continued to be prevented from returning to or even visiting their previous homes in northern Cyprus. In the Commission's opinion, the facts disclosed a continuing violation of Article 8 in this respect, irrespective of the respondent Government's appeal to the public-safety considerations set out in the second paragraph of Article 8. As to the respondent Government's view that the claim of Greek-Cypriot displaced persons to return to the north and to settle in their homes had to be solved in the overall context of the inter-communal talks, the Commission considered that these negotiations, which were still very far from reaching any tangible result on the precise matter at hand, could not be invoked to justify the continuing maintenance of measures contrary to the Convention.",
"170. Having regard to its Article 8 finding as well as to its conclusions on the applicant Government's complaint under Article 1 of Protocol No. 1 (see paragraph 183 below), the Commission considered that it was not necessary to examine the applicant Government's further allegations concerning the manipulation of the demographic and cultural environment of the displaced persons' homes.",
"171. The Court notes that in the proceedings before the Commission the respondent Government did not dispute the applicant Government's assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. It was their contention that this situation would remain unchanged pending agreement on an overall political solution to the Cypriot question. In these circumstances the Court, like the Commission, considers that the issue of whether the aggrieved persons could have been expected to avail themselves of domestic remedies in the “TRNC” does not arise.",
"172. The Court observes that the official policy of the “TRNC” authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them.",
"173. The Court further notes that the situation impugned by the applicant Government has obtained since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in “legislation” and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed, it is claimed, to minimise the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General (see paragraph 16 above).",
"174. The Court would make the following observations in this connection: firstly, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8 § 2 of the Convention (see paragraph 173 above); secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing.",
"175. In view of these considerations, the Court concludes that there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.",
"176. As to the applicant Government's further allegation concerning the alleged manipulation of the demographic and cultural environment of the displaced persons' homes, the Court, like the Commission, considers that it is not necessary to examine this complaint in view of its above finding of a continuing violation of Article 8 of the Convention.",
"177. Furthermore, the Court considers it appropriate to examine the applicant Government's submissions on the issue of family separation (see paragraph 166 above) in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots.",
"2. Article 1 of Protocol No. 1",
"178. The applicant Government maintained that the respondent State's continuing refusal to permit the return of the displaced persons to northern Cyprus not only prevented them from having access to their property there but also prevented them from using, selling, bequeathing, mortgaging, developing and enjoying it. In their submission, there were continuing violations of all the component aspects of the right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1, which states:",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"179. The applicant Government contended that the respondent State had adopted a systematic and continuing policy of interference with the immovable property of the displaced persons. They stated, inter alia, that the properties in question, of which the displaced persons were unlawfully dispossessed following their eviction from the north, were transferred into Turkish possession. Steps were then taken to “legalise” the illegal appropriation of the properties and their allocation to “State” bodies, Turkish Cypriots and settlers from the Turkish mainland. This was effected by means such as the assignment of “title deeds” to their new possessors. No compensation had ever been awarded to the victims of these interferences. Furthermore, specific measures had been taken to develop and exploit commercially land belonging to displaced persons, Church-owned land had been transferred to the Muslim religious trust, and agricultural produce from Greek-Cypriot land was now being exported accompanied by Turkish certificates.",
"180. In the applicant Government's submission, the continuing violation of property rights clearly engaged the responsibility of the respondent State under the Convention in view of the conclusions reached by the Court in its Loizidou judgment ( merits ). Quite apart from that consideration, the applicant Government pointed out that, in so far as the respondent State sought to justify the interferences with the displaced persons' property rights by invoking the derogation contained in Article 1 of Protocol No. 1, the “legal” measures relied on had necessarily to be considered invalid since they emanated from an illegal secessionist entity and could not for that reason be considered to comply with the qualitative requirements inherent in the notion of “provided for by law”.",
"181. The Commission observed that the applicant Government's complaints were essentially directed at the “legislation” and the acknowledged administrative practice of the “TRNC” authorities. On that account, the persons aggrieved were not required to take any domestic remedies, it being noted by the Commission that, in any event, it did not appear that any remedies were available to displaced Greek Cypriots deprived of their property in northern Cyprus.",
"182. As to the merits, the Commission considered that the nature of the alleged interferences with the property rights of displaced Greek Cypriots was in essence the same as the interference of which Mrs Loizidou had complained in her application. Although that application concerned one particular instance of the general administrative practice to which the complaints in the present case relate, the Court's reasoning at paragraphs 63 and 64 of its Loizidou judgment ( merits ) (pp. 2237-38) must also apply to the administrative practice as such.",
"183. The Commission, essentially for the reasons set out by the Court in the above-mentioned judgment, concluded that during the period under consideration there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.",
"184. The Court agrees with the Commission's analysis. It observes that the Commission found it established on the evidence that at least since June 1989 the “TRNC” authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus (see paragraph 32 above). This purported deprivation of the property at issue was embodied in a constitutional provision, “Article 159 of the TRNC Constitution”, and given practical effect in “Law no. 52/1995”. It would appear that the legality of the interference with the displaced persons' property is unassailable before the “TRNC” courts. Accordingly, there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints.",
"185. The Court would further observe that the essence of the applicant Government's complaints is not that there has been a formal and unlawful expropriation of the property of the displaced persons but that these persons, because of the continuing denial of access to their property, have lost all control over, as well as possibilities to enjoy, their land. As the Court has noted previously (see paragraphs 172-73 above), the physical exclusion of Greek-Cypriot persons from the territory of northern Cyprus is enforced as a matter of “TRNC” policy or practice. The exhaustion requirement does not accordingly apply in these circumstances.",
"186. The Court recalls its finding in the Loizidou judgment ( merits ) that that particular applicant could not be deemed to have lost title to her property by operation of “Article 159 of the TRNC Constitution”, a provision which it held to be invalid for the purposes of the Convention (p. 2231, § 44). This conclusion is unaffected by the operation of “Law no. 52/1995”. It adds that, although the latter was not invoked before the Court in the Loizidou case, it cannot be attributed any more legal validity than its parent “Article 159” which it purports to implement.",
"187. The Court is persuaded that both its reasoning and its conclusion in the Loizidou judgment ( merits ) apply with equal force to displaced Greek Cypriots who, like Mrs Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the “TRNC” authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. It further notes that, as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights.",
"188. The Court notes that the respondent Government, in the proceedings before the Commission, sought to justify the interference with reference to the inter-communal talks and to the need to rehouse displaced Turkish-Cypriot refugees. However, similar pleas were advanced by the respondent Government in the Loizidou case and were rejected in the judgment on the merits (pp. 2237-38, § 64). The Court sees no reason in the instant case to reconsider those justifications.",
"189. For the above reasons the Court concludes that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights.",
"3. Article 13 of the Convention",
"190. The applicant Government asserted that the manifest failure of the respondent State to provide an effective or indeed any remedy to displaced persons in respect of the violations of Article 8 of the Convention and Article 1 of Protocol No. 1 was in clear breach of Article 13 of the Convention, which provides:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"191. The applicant Government approved in the main the reasoning which led the Commission to find a breach of Article 13.",
"192. The Commission referred to its finding that the displaced persons' rights under Article 8 of the Convention and Article 1 of Protocol No. 1 were violated as a matter of administrative practice. In so far as these practices were embodied in “legislation” of the “TRNC”, the Commission noted that no provision was made to allow Greek Cypriots to contest their physical exclusion from the territory of northern Cyprus. On that account the Commission found that displaced persons had no remedies to contest interferences with their rights under these Articles and that there was a violation of Article 13 in consequence.",
"193. The Court notes that in the proceedings before the Commission the respondent Government pleaded that, pending the elaboration of an agreed political solution to the overall Cyprus problem, there could be no question of a right of displaced persons either to return to the homes and properties which they had left in northern Cyprus or to lay claim to any of their immovable property vested in the “TRNC” authorities by virtue of “Article 159 of the TRNC Constitution” and allocated to Turkish Cypriots with full title deeds in accordance with implementing “Law no. 52/1995”. The respondent Government did not contend before the Commission that displaced persons could avail themselves of local remedies to contest this policy of interference with their rights. Indeed, the Court considers that it would be at variance with the declared policy to provide for any challenge to its application. The Court further recalls in this connection that, as regards the violations alleged under Article 8 of the Convention and Article 1 of Protocol No. 1, it concluded that no issue arose in respect of the exhaustion requirement. It refers to the reasons supporting those conclusions (see paragraphs 171-75 and 184-89 above).",
"194. For these reasons, the Court, like the Commission, concludes that there has been a violation of Article 13 of the Convention by reason of the respondent State's failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1.",
"4. Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1",
"195. The applicant Government stated that the administrative practices, “legislation” and “constitutional provisions” at issue violated not only the rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 but, being exclusively directed against Greek Cypriots not living in northern Cyprus, also Article 14 of the Convention. Article 14 of the Convention provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"196. Elaborating on their submission, the applicant Government maintained that the aim of the respondent State was to discriminate against Greeks and Greek Cypriots since only these classes of persons were disentitled to acquire immovable property in the “TRNC”. Other “aliens” such as British retired persons were not prevented from acquiring immovable property in the “TRNC”, inter alia property which had been “abandoned” by Greek-Cypriot displaced persons. Furthermore, Turks from Turkey not resident in the “TRNC” were not treated as having abandoned their property and were permitted to acquire new property holdings or homes.",
"197. The applicant Government further submitted that, as a matter of practice, the respondent State failed, on a discriminatory basis, to provide remedies for Greek Cypriots and Greeks in respect of their property rights. In their submission, there was a breach of Article 14 of the Convention in conjunction with Article 13.",
"198. The Commission concluded that the interferences with the rights under Article 8 of the Convention and Article 1 of Protocol No. I concerned exclusively Greek Cypriots not residing in northern Cyprus and were imposed on them for the very reason that they belonged to this class of person. There was accordingly a breach of Article 14 read together with Article 8 of the Convention and Article 1 of Protocol No. 1. The Commission did not pronounce on the applicant Government's complaint under Article 13 taken together with Article 14.",
"199. The Court considers that, in the circumstances of the present case, the applicant Government's complaints under this heading amount in effect to the same complaints, albeit seen from a different angle, as those which the Court has already considered in relation to Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. It has found that those Articles have been violated. In considers that it is not necessary to examine whether in this case there has been a violation of Article 14 taken in conjunction with those Articles by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy.",
"5. Article 3 of the Convention",
"200. The applicant Government claimed that the treatment to which the displaced persons were subjected amounted to an infringement of Article 3 of the Convention, which provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"201. The applicant Government pleaded that the Court should find a violation of Article 3 since, in their view, treatment especially singling out categories of persons on racial and ethnic grounds, subjecting them to severe hardship, denying them or interfering with their Convention rights, and doing so specifically and publicly, amounted to conduct which was an affront to human dignity to the point of being inhuman treatment.",
"202. The Commission considered that it was unnecessary to examine whether the discrimination at issue also constituted inhuman or degrading treatment within the meaning of Article 3, having regard to its finding under Article 14.",
"203. Bearing in mind its own conclusion on the applicant Government's complaints under Article 14 of the Convention (see paragraphs 195 and 199 above) as well as its finding of a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, the Court, for its part, does not consider it necessary to examine whether the facts alleged also give rise to a breach of Article 3 of the Convention.",
"6. Articles 17 and 18 of the Convention",
"204. The applicant Government submitted that the facts of the case disclosed a violation of Articles 17 and 18 of the Convention, which provide:",
"Article 17",
"“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”",
"Article 18",
"“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”",
"205. The applicant Government maintained that Article 17 had been violated since the respondent State limited the rights and freedoms of persons, mainly Greek Cypriots, to a greater extent than was provided for in the Convention. They further submitted that the respondent State applied restrictions to the Convention rights for a purpose other than the one for which they had been prescribed, in violation of Article 18 of the Convention.",
"206. The Court considers that it is not necessary to examine separately these complaints, having regard to the conclusions which it has reached on the applicant Government's complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.",
"V. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus",
"207. The applicant Government asserted that the living conditions to which the Greek Cypriots who had remained in the north were subjected gave rise to substantial violations of the Convention. They stressed that these violations were committed as a matter of practice and were directed against a depleted and now largely elderly population living in the Karpas area of northern Cyprus in furtherance of a policy of ethnic cleansing, the success of which could be measured by the fact that from some 20,000 Greek Cypriots living in the Karpas in 1974 only 429 currently remained. Maronites, of whom there were currently 177 still living in northern Cyprus, also laboured under similar, if less severe, restrictions.",
"208. The applicant Government invoked Articles 2, 3, 5, 6, 8, 9, 10, 11, 13, 14 of the Convention and Articles 1 and 2 of Protocol No. 1.",
"A. As to the facts established by the Commission",
"209. By way of a general submission the applicant Government maintained that the Commission, as regards certain of their complaints, erroneously concluded against the weight of the evidence that there was no violation of the Convention. In the applicant Government's submission, the Commission's findings on matters such as restrictions on the importation of books other than school-books, interference with correspondence and denial of access to medical services were not only at variance with the written and oral evidence of witnesses but also with the clear findings contained in the “Karpas Brief” (see paragraph 36 above) and the reviews of the action taken by the “TRNC” authorities to give effect to the proposals for remedying the suffering which resulted for the Greek-Cypriot and Maronite populations from administrative practices of violating their Convention rights. The applicant Government further claimed that witnesses, whose number was regrettably restricted, only had a limited time to recount their experiences to the Commission's delegates. Furthermore, the applicant Government's lawyers were only left with negligible time in which to draw out all the relevant facts following the witnesses' statements.",
"210. The applicant Government insisted that the Court have regard to these and other shortcomings in the taking of evidence when reviewing the Commission's findings. They further submitted that, regarding the plight of the Maronites living in northern Cyprus, the Court should procure and examine the Humanitarian Review drawn up on this community. They observed in this connection that the United Nations Secretary-General offered to release the Review in the proceedings before the Commission. However, the objection of the respondent Government prevented its being included in the case file.",
"211. The Court recalls that the Commission established the facts with reference, inter alia, to the oral evidence given by witnesses proposed by both sides. It further recalls that it rejected the applicant Government's criticism of the manner in which the delegates heard the evidence and reaffirms that the hearing of witnesses was organised in a way which respected the principle of procedural equality between both parties (see paragraphs 110-11 above). It is to be noted in addition that, with a view to its establishment of the facts, the Commission made extensive use of documentary materials including the “Karpas Brief” on the living conditions of the enclaved Greek-Cypriot population in northern Cyprus and the UN Secretary-General's progress reports on the proposals for remedial action formulated in the Brief.",
"212. The Court observes that the applicant Government accept much of the Commission's findings of fact. Their criticism is directed at certain conclusions which the Commission drew from those facts. For its part, and having regard to the wide-ranging and thorough analysis of the evidence conducted by the Commission, the Court does not consider that there are any exceptional circumstances which would lead it to depart from the facts as established by the Commission. It will, on the other hand, scrutinise carefully whether the facts bear out all of the applicant Government's complaints. It reiterates that it will do so using the “beyond reasonable doubt” standard of proof including with respect to the alleged existence of an administrative practice of violating the Convention rights relied on (see paragraphs 114-15 above).",
"213. As to the applicant Government's request that the Humanitarian Review dealing with the living conditions of the Maronite community in northern Cyprus be obtained, the Court observes that the respondent Government have not signalled that they have lifted their objection to the release of the document. It observes that, in any event, major aspects of the Review have been made public and have been included in the case file.",
"214. The Court notes that the Commission, in its examination of the merits of the applicant Government's complaints, made an overall assessment of the living conditions of Greek Cypriots living in northern Cyprus from the standpoint of Articles 3, 8 and 14 of the Convention. At the same time, the Commission examined the merits of the complaints about the living conditions under the relevant Convention Article (Articles 2, 5, 6, 9, 10 and 11 of the Convention and Articles 1 and 2 of Protocol No. 1), while addressing in the framework of its global assessment the specific complaints raised by the applicant Government under Article 8 concerning interferences with the right of the Karpas Greek Cypriots to respect for their private and family life, home and correspondence. Having regard to the fact that the applicant Government's arguments on the latter aspects of Article 8 are interwoven with their broader submissions on the violation of that provision, the Court considers that it is appropriate to discuss those arguments in the context of the living conditions of the Karpas Greek Cypriots seen from the angle of Article 8.",
"215. The Court will accordingly follow the Commission's approach in this regard.",
"B. As to the merits of the applicant Government's complaints",
"1. Article 2 of the Convention",
"216. The applicant Government maintained that the restrictions on the ability of the enclaved Greek Cypriots and Maronites to receive medical treatment and the failure to provide or to permit receipt of adequate medical services gave rise to a violation of Article 2 of the Convention.",
"217. In their submission, the respondent State must be considered, as a matter of administrative practice, to have failed to protect the right to life of these communities, having regard to the absence in northern Cyprus of adequate emergency and specialist services and geriatric care. In support of their submission, the applicant Government observed that aged Greek Cypriots were compelled to transfer to the south to obtain appropriate care and attention.",
"218. The Commission found that there had been no violation of Article 2 by virtue of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus. It considered in this respect that, although there may have been shortcomings in individual cases, in general access to medical services, including hospitals in the south, was available to them. In view of this conclusion the Commission did not consider it necessary to examine whether, in relation to this complaint, any domestic remedies which might have been available in the “TRNC” had been exhausted.",
"219. The Court observes that an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of health care which they have undertaken to make available to the population generally. It notes in this connection that Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). It notes, however, that the Commission was unable to establish on the evidence that the “TRNC” authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. It observes that during the period under consideration medical visits were indeed hampered on account of restrictions imposed by the “TRNC” authorities on the movement of the populations concerned and that in certain cases delays did occur. However, it has not been established that the lives of any patients were put in danger on account of delay in individual cases. It is also to be observed that neither the Greek-Cypriot nor Maronite populations were prevented from availing themselves of medical services including hospitals in the north. The applicant Government are critical of the level of health care available in the north. However, the Court does not consider it necessary to examine in this case the extent to which Article 2 of the Convention may impose an obligation on a Contracting State to make available a certain standard of health care.",
"220. The Court further observes that the difficulties which the Greek ‑ Cypriot and Maronite communities experience in the area of health care under consideration essentially stem from the controls imposed on their freedom of movement. Those controls result from an administrative practice which is not amenable to challenge in the “TRNC” courts (see paragraph 41 above). On that account, the Court considers that the issue of non-exhaustion need not be examined.",
"221. The Court concludes that no violation of Article 2 of the Convention has been established by virtue of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus.",
"222. The Court will revert to the applicant Government's complaint in respect of the alleged interference with access to medical facilities in the context of the overall assessment of compliance with Article 8 of the Convention (see paragraphs 281 et seq. below).",
"2. Article 5 of the Convention",
"223. The applicant Government maintained that the evidence clearly established that the personal security of the enclaved Greek Cypriots had been violated as a matter of practice. The applicant Government relied on Article 5 of the Convention in this respect, the relevant part of which reads:",
"“1. Everyone has the right to liberty and security of person...”",
"224. In the applicant Government's submission, the Commission was incorrect in its conclusion that this complaint was not borne out by the evidence. The applicant Government asserted that the written and oral testimony of witnesses clearly demonstrated the vulnerability and fear of the enclaved population and the impunity with which those responsible for crimes against the person and property could act. As to the latter point, the applicant Government observed that, although notified of complaints, the police failed to take action and without identification of assailants and suspects civil action, even if remedies were available, was impossible. They stressed that account had to be taken of the fact that the victims of these acts of criminality were aged and that the evidence given by certain witnesses to the Commission's delegates had to be seen against the background of their fear of retaliation.",
"225. The Commission noted that there were no cases of actual detention of enclaved Greek Cypriots during the period under consideration; nor did it find that the allegations of threats to personal security had been substantiated. In these circumstances, no issue as to the exhaustion of domestic remedies fell to be considered. It concluded that there had been no violation of Article 5.",
"226. The Court notes that the applicant Government have not claimed that any members of the enclaved Greek-Cypriot population were actually detained during the period under consideration. Their complaint relates to the vulnerability of what is an aged and dwindling population to the threat of aggression and criminality and its overall sense of insecurity. However, the Court considers that these are matters which fall outside the scope of Article 5 of the Convention and are more appropriately addressed in the context of its overall assessment of the living conditions of the Karpas Greek Cypriots seen from the angle of the requirements of Article 8 (see paragraphs 281 et seq. below).",
"227. For the above reason, the Court concludes that there has been no violation of Article 5 of the Convention.",
"3. Article 6 of the Convention",
"228. The applicant Government, referring to their earlier arguments on the issue of domestic remedies raised in the context of the preliminary issues (see paragraphs 83-85 above), claimed that Greek Cypriots in northern Cyprus were denied the right to have their civil rights and obligations determined by independent and impartial courts established by law. They requested the Court to find a violation of Article 6 of the Convention, which provides as relevant:",
"“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”",
"229. The applicant Government criticised the Commission's failure to have regard to the essential illegality of the regime under which the “TRNC” courts function. They submitted in this connection that it could not be contended that those courts were “established by law” within the meaning of Article 6 as interpreted in the Court's case-law. Regrettably, the Commission erroneously considered that the “TRNC” courts had a sufficient legal basis within the “constitutional and legal system of the TRNC”. Furthermore, the Commission overlooked clear evidence which supported the applicant Government's view that the enclaved Greek-Cypriot population had no faith in the independence and impartiality of the court system and that any rulings which might be given in favour of litigants were rendered meaningless on account of intimidation by Turkish settlers. To this were to be added the facts, firstly, that there was no system of legal aid which could facilitate the bringing of proceedings and, secondly, the authorities themselves did nothing to prevent intimidation by settlers, with the result that court decisions remained unenforceable. Furthermore, due account had also to be taken of the fact that the possibility of taking litigation was frustrated on account of the restrictions imposed on the movement of the enclaved Greek Cypriots and hence on their access to courts. In the applicant Government's submission, these severe impediments to justice were confirmed by the findings in the “Karpas Brief”.",
"230. The Commission found on the facts that Greek Cypriots living in northern Cyprus were not prevented from bringing civil actions before the “TRNC” courts. In the Commission's conclusion, the applicant Government had not made out their claim that there was a practice in the “TRNC” of denying access to court.",
"231. As to the applicant Government's claim that “TRNC” courts failed to satisfy the criteria laid down in Article 6, the Commission noted, firstly, that there was nothing in the institutional framework of the “TRNC” legal system which was likely to cast doubt either on the independence and impartiality of the civil courts or the subjective and objective impartiality of judges, and, secondly, those courts functioned on the basis of the domestic law of the “TRNC” notwithstanding the unlawfulness under international law of the “TRNC”' s claim to statehood. The Commission found support for this view in the Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 86 above). Moreover, in the Commission's opinion due weight had to be given to the fact that the civil courts operating in the “TRNC” were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus.",
"232. The Commission accordingly concluded that, during the period under consideration, there had been no violation of Article 6 of the Convention in respect of Greek Cypriots living in northern Cyprus.",
"233. The Court notes that the applicant Government have confined their submissions under this head to the civil limb of Article 6 of the Convention. It recalls in this connection that the first paragraph of Article 6 embodies the right of access to a court or tribunal in respect of disputes over civil rights or obligations which can be said, at least on arguable grounds, to be recognised under domestic law; it does not of itself guarantee any particular content for such rights and obligations in the substantive law of the Contracting State (see, inter alia, the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A, no. 102, p. 70, § 192). Furthermore, a court or tribunal is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members' terms of office; guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 (see, among other authorities, the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 29, § 64).",
"234. The Court observes that it is the applicant Government's contention that the enclaved Greek-Cypriot population is prevented, as a matter of administrative practice, from asserting civil claims before the “TRNC” courts. However this assertion is at variance with the testimony of witnesses heard by the delegates, including witnesses proposed by the applicant Government. It is also contradicted by the written evidence adduced before the Commission. It is clear that Greek Cypriots living in the north have on occasion successfully taken court actions in defence of their property rights (see paragraph 39 above), and they are not barred for reasons of race, language or ethnic origin from using the local courts. The Commission accepted this on the facts and the Court does not dispute the Commission's conclusion. For the Court, the applicant Government are required to show that the courts have been tried and found wanting. Absent this, it is being asked to speculate on the merits of their claim. Admittedly, the number of actions brought by members of the enclaved population is limited. However, that of itself does not corroborate the applicant Government's claim, especially if regard is had to the fact that the population is aged and small in numbers and, for reasons of allegiance, perhaps psychologically ill-disposed to invoking the jurisdiction of courts set up by the “TRNC”.",
"235. The Court also considers that this conclusion is not affected by the fact that certain matters which may weigh heavily on the daily lives of the enclaved Greek Cypriots are not amenable to challenge in the “TRNC” courts, for example restrictions on their freedom of movement or their right to bequeath property to family members in the south (see paragraphs 40-41 above). However, in the Court's opinion those measures, whether embodied in policy or “legislation”, are to be addressed from the standpoint of the effectiveness of remedies within the meaning of Article 13 of the Convention and their compatibility with other relevant substantive provisions of the Convention and its Protocols. The existence of such measures does not improve the applicant Government's case concerning the alleged administrative practice of violating Article 6. It recalls in this connection that the applicability of Article 6 is premised on the existence of an arguable cause of action in domestic law (see the above-mentioned Lithgow and Others judgment, p. 70, § 192, and the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 16-17, § 36).",
"236. As to the applicant Government's challenge to the very legality of the “TRNC” court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application (see paragraphs 83-85 above). The Court concluded that, notwithstanding the illegality of the “TRNC” under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used.",
"237. The Court observes from the evidence submitted to the Commission (see paragraph 39 above) that there is a functioning court system in the “TRNC” for the settlement of disputes relating to civil rights and obligations defined in “domestic law” and which is available to the Greek-Cypriot population. As the Commission observed, the court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus (see paragraph 231 above). In its opinion, having regard to the fact that it is the “TRNC domestic law” which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the “law” of the “TRNC”, are the fora for their enforcement. For the Court, and for the purposes of adjudicating on “civil rights and obligations” the local courts can be considered to be “established by law” with reference to the “constitutional and legal basis” on which they operate.",
"In the Court's opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body (see paragraph 96 above). It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights.",
"238. The Court would add that its conclusion on this matter in no way amounts to a recognition, implied or otherwise, of the “TRNC”'s claim to statehood (see paragraphs 61, 90 and 92 above).",
"239. The Court notes that the applicant Government contest the independence and impartiality of the “TRNC” court system from the perspective of the local Greek-Cypriot population. However, the Commission rejected this claim on the facts (see paragraph 231 above). Having regard to its own assessment of the evidence, the Court accepts that conclusion.",
"240. For the above reasons, the Court concludes that no violation of Article 6 of the Convention has been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations.",
"4. Article 9 of the Convention",
"241. The applicant Government alleged that the facts disclosed an interference with the enclaved Greek Cypriots' right to manifest their religion, in breach of Article 9 of the Convention which states:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"242. The applicant Government contended that the interference with the concerned population's right under Article 9 was reflected in the “TRNC” policy of limiting its freedom of movement and thereby restricting access to places of worship. The applicant Government also condemned the failure of the “TRNC” to appoint further priests to the area. They endorsed the Commission's findings on the facts and its conclusion that there had been a breach of Article 9. They added that a similar breach should be found in respect of the Maronite population living in northern Cyprus on account of the fact that that population also had to contend with restrictions on its right to visit and tend to its holy places in the northern part of Cyprus.",
"243. The Commission observed that the existence of a number of measures limited the religious life of the enclaved Greek-Cypriot population. It noted in this respect that, at least until recently, restrictions were placed on their access to the Apostolos Andreas Monastery as well as on their ability to travel outside their villages to attend religious ceremonies. In addition, the “TRNC” authorities had not approved the appointment of further priests for the area, there being only one priest for the whole of the Karpas region. For the Commission, these restrictions prevented the organisation of Greek Orthodox religious ceremonies in a normal and regular manner and amounted to a breach of Article 9 of the Convention. In the Commission's view, there existed no effective remedies in respect of the measures complained of.",
"244. The Commission accordingly concluded that during the period under consideration there had been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus.",
"245. The Court accepts the facts as found by the Commission, which are not disputed by the applicant Government. It has not been contended by the applicant Government that the “TRNC” authorities have interfered as such with the right of the Greek-Cypriot population to manifest their religion either alone or in the company of others. Indeed there is no evidence of such interference. However, the restrictions placed on the freedom of movement of that population during the period under consideration considerably curtailed their ability to observe their religious beliefs, in particular their access to places of worship outside their villages and their participation in other aspects of religious life.",
"246. The Court concludes that there has been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus.",
"247. The Court notes that the applicant Government have requested it to make a similar finding in respect of the Maronite community living in northern Cyprus. However, it considers that the evidence before it is insufficient to prove beyond reasonable doubt that members of this community were prejudiced to the same extent as the Greek-Cypriot population in the north in the exercise of their right to freedom of religion. It finds therefore that no violation of Article 9 has been established in respect of the Maronite population living in northern Cyprus.",
"5. Article 10 of the Convention",
"248. The applicant Government asserted that the “TRNC” authorities engaged in excessive censorship of school-books, restricted the importation of Greek-language newspapers and books and prevented the circulation of any newspapers or books whose content they disapproved of. In their submission, these acts violated as a matter of administrative practice the right of the enclaved Greek Cypriots to receive and impart information and ideas guaranteed by Article 10 of the Convention, which provides:",
"“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.",
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”",
"249. The applicant Government approved the Commission's finding that school-books destined for Greek-Cypriot children in the north were subject to excessive measures of censorship. However, in their submission the Commission had failed to give due regard to the ample evidence confirming that Greek-language books and newspapers were censored and confiscated by the “TRNC” authorities. The applicant Government stated that it would be stretching credulity to accept that these authorities censored school-books, however innocent their content, but permitted the unrestricted importation of other categories of books. The applicant Government relied on the oral affirmation of certain witnesses heard by the Commission's delegates that books, like newspapers, had to be surreptitiously taken into northern Cyprus for fear of confiscation.",
"250. The Commission found a violation of Article 10 in so far as the Turkish-Cypriot authorities had, during the period under consideration, censored or rejected the distribution of a considerable number of school-books on the ground that their content was capable of fostering hostility between the ethnic communities in northern Cyprus. The Commission noted that the books which had been censored or rejected concerned subjects such as Greek language, English, history, geography, religion, civics, science, mathematics and music. Even having regard to the possibility that such books contained materials indicating the applicant Government's view of the history and culture of Cyprus, the impugned action failed to comply with the requirements of paragraph 2 of Article 10. In the Commission's view there were no remedies which would have allowed parents or teachers to contest the action taken.",
"251. On the other hand, the Commission did not find it established on the evidence that restrictions were imposed on the importation of newspapers or Greek-Cypriot or Greek language books other than school-books, or on the reception of electronic media. As to the absence of a newspaper distribution system in the Karpas area, the Commission observed that it had not been informed of any administrative measures preventing the establishment of such a system.",
"252. The Court recalls that it has accepted the facts as established by the Commission (see paragraph 212 above). On that understanding it confirms the Commission's finding that there has been an interference with Article 10 on account of the practice adopted by the “TRNC” authorities of screening the contents of school-books before their distribution. It observes in this regard that, although the vetting procedure was designed to identify material which might pose a risk to inter-communal relations and was carried out in the context of confidence-building measures recommended by UNFICYP (see paragraph 44 above), the reality during the period under consideration was that a large number of school-books, no matter how innocuous their content, were unilaterally censored or rejected by the authorities. It is to be further noted that in the proceedings before the Commission the respondent Government failed to provide any justification for this form of wide-ranging censorship, which, it must be concluded, far exceeded the limits of confidence-building methods and amounted to a denial of the right to freedom of information. It does not appear that any remedies could have been taken to challenge the decisions of the “TRNC” authorities in this regard.",
"253. The Court notes that the applicant Government consider that the Commission erred in its assessment of the evidence in respect of other categories of Greek-language books as well as newspapers. It has given careful consideration to the matters relied on by the applicant Government. However, the Court does not find that the evidence of individual cases of confiscation at the Ledra Palace check-point adduced before the Commission and highlighted by the applicant Government in their memorial and at the public hearing substantiate their allegations with reference to the “beyond reasonable doubt” standard of proof.",
"254. The Court finds therefore that there has been a violation of Article 10 of the Convention in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject, during the period under consideration, to excessive measures of censorship.",
"6. Article 11 of the Convention",
"255. The applicant Government asserted that their complaint under this head related to their claim that the Karpas Greek Cypriots were victims of interferences with their right to freedom of assembly, in breach of Article 11 of the Convention, which provides:",
"“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.",
"2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”",
"256. The applicant Government contended that the Commission had failed to give due weight to the evidence of the respondent State's long-standing policy of impeding the enclaved population's right to take part in organised or ad hoc gatherings. They maintained that the Commission erroneously found that impediments to bi-communal meetings only occurred as from the second half of 1996 and were thus outside the scope of the case. The applicant Government argued that these impediments had in fact been continuing since 1974 on account of the respondent State's general and restrictive policy in the area of freedom of movement. They maintained that their claim was borne out by the UN Secretary-General's observations on the measures being implemented by the Turkish-Cypriot authorities in respect of Greek Cypriots and Maronites located in the northern part of Cyprus (UN document S/1995/1020, Annex IV, 30 November 1995). By way of an example of restrictions on the right to freedom of assembly during the period under consideration, the applicant Government observed that the Turkish-Cypriot authorities, on 13 November 1994, refused permission for a Greek singer to give a concert in the Karpas region.",
"257. The applicant Government further complained that the administrative practice at issue also resulted in a violation of Article 8, given that the Greek-Cypriot and Maronite populations were prevented from freely foregathering, meeting or assembling either outside their villages in the “TRNC” or by crossing the cease-fire line to the buffer-zone, or by visiting the free area.",
"258. The Commission proceeded on the understanding that the applicant Government's essential complaint under Article 11 concerned an alleged violation of the right of the population concerned to freedom of association in the sense of founding or joining associations or taking part in the activities of associations with a minimum organisational structure, to the exclusion of social contacts. The Commission found on the evidence that, during the period under consideration, there was no restriction on any aspect of the right as defined. As to impediments to the participation of enclaved Greek Cypriots in bi-communal events organised by the United Nations, the Commission noted that UN documents mentioned impediments having been placed in the way of inter-communal meetings as from the second half of 1996. However, given that these events were based on distinct facts occurring after the date of the admissibility decision, any complaints based thereon could not be entertained.",
"259. Having regard to its conclusion that there had been no violation of the right of Greek Cypriots living in northern Cyprus to freedom of association, the Commission considered that it was unnecessary to examine whether any available remedies had been exhausted in respect of the applicant Government's allegations.",
"260. The Court observes that the matters raised by the applicant Government are essentially issues of fact which have been carefully examined by the Commission in the context of the fact-finding procedure. It observes that on the basis of the evidence analysed the Commission found it impossible to conclude that during the period under consideration there was any interference by the “TRNC” authorities with attempts by Greek Cypriots to establish their own associations or mixed associations with Turkish Cypriots, or interference with the participation of Greek Cypriots in the activities of associations (see paragraph 258 above). The Court accepts the Commission's finding and would add that the evidence does not allow it to conclude, beyond reasonable doubt, that an administrative practice of violating the right of the enclaved Greek Cypriots to freedom of association existed during the reference period.",
"261. Like the Commission, the Court also considers that its conclusion does not require it to examine whether any available domestic remedies have been exhausted in relation to these complaints.",
"262. As to the applicant Government's complaints in respect of an alleged practice of imposing restrictions on Greek Cypriots' participation in bi-communal or inter-communal events during the period under consideration, the Court considers, having regard to the subject-matter of the events relied on, that it is more appropriate to consider them from the standpoint of Article 8 of the Convention. It will do so in the context of its global assessment of that Article (see paragraphs 281 et seq. below).",
"263. The Court concludes that no violation of Article 11 of the Convention has been established by reason of an alleged practice of denying Greek Cypriots living in northern Cyprus the right to freedom of association.",
"7. Article 1 of Protocol No. 1",
"264. The applicant Government complained that Greek Cypriots and Maronites living in northern Cyprus were victims of violations of their rights under Article 1 of Protocol No. 1. They contended that the authorities of the respondent State unlawfully interfered with the property of deceased Greek Cypriots and Maronites as well as with the property of such persons who decided to leave permanently the northern part. Furthermore, landowners were denied access to their agricultural land situated outside a three-mile radius of their villages. The applicant Government requested the Court to confirm the Commission's conclusion that Article 1 of Protocol No. 1 had been violated in these respects.",
"265. In a further submission, the applicant Government pointed to their claim that third parties interfered with the property of the persons concerned, whether situated inside their villages or beyond the three-mile zone and that the “TRNC” authorities acquiesced in or tolerated these interferences. In the applicant Government's view, the evidence adduced before the Commission clearly demonstrated that the local police did not, as a matter of administrative practice, investigate unlawful acts of trespass, burglary and damage to property, contrary to the respondent State's positive obligations under Article 1 of Protocol No. 1. They observed with regret that the Commission had failed to find a violation despite the existence of substantial evidence of an administrative practice. The applicant Government requested the Court to depart from the Commission's finding on this particular complaint.",
"266. The Commission accepted on the evidence that there was no indication that during the period under consideration there were any instances of wrongful allocation of Greek-Cypriot property to other persons and that the property of resident Greek Cypriots was not treated as “abandoned property” within the meaning of “Article 159 of the TRNC Constitution” (see paragraph 184 above). It observed in this connection that the local courts had ruled in favour of a number of Greek Cypriots who claimed that their properties had been wrongfully allocated under the applicable domestic “rules”. However, the Commission did find it established that Greek Cypriots who decided to resettle in the south were no longer considered legal owners of the property which they left behind. Their situation was accordingly analogous to that of displaced persons (see paragraph 187 above) and, as with the latter, there were no remedies available to them to contest this state of affairs.",
"267. The Commission was not persuaded either that heirs living in southern Cyprus would have any realistic prospects of invoking remedies before the “TRNC” courts to claim inheritance rights to the property of deceased Greek Cypriots situated in the north. In the Commission's opinion, the respondent Government had not shown to its satisfaction that such property would not be considered “abandoned” in application of the relevant “rules”. In any event, the very existence of these “rules” and their application were, for the Commission, incompatible with the letter and spirit of Article 1 of Protocol No. 1.",
"268. As to the criminal acts of third parties referred to by the applicant Government, the Commission considered that the evidence did not bear out their allegations that the “TRNC” authorities had either participated in or encouraged criminal damage or trespass. It noted that a number of civil and criminal actions had been successfully brought before the courts in respect of complaints arising out of such incidents and that there was a recent increase in criminal prosecutions.",
"269. The Court notes from the facts established by the Commission that, as regards ownership of property in the north, the “TRNC” practice is not to make any distinction between displaced Greek-Cypriot owners and Karpas Greek-Cypriot owners who leave the “TRNC” permanently, with the result that the latter's immovable property is deemed to be “abandoned” and liable to reallocation to third parties in the “TRNC”.",
"For the Court, these facts disclose a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory.",
"270. The Court further observes that the evidence taken in respect of this complaint also strongly suggests that the property of Greek Cypriots in the north cannot be bequeathed by them on death and that it passes to the authorities as “abandoned” property. It notes that the respondent Government contended before the Commission that a court remedy could be invoked by an heir in order to assert inheritance rights to the property of a deceased Greek-Cypriot relative. The Court, like the Commission, is not persuaded that legal proceedings would hold out any prospects of success, having regard to the respondent Government's view in the proceedings before the Commission that the property of deceased Greek Cypriots devolves on the authorities in accordance with the notion of “abandoned” property. It further notes that heirs living in the south would in fact be prevented from having physical access to any property which they inherited.",
"Accordingly, Article 1 of Protocol No. 1 has also been breached in this respect, given that the inheritance rights of persons living in southern Cyprus in connection with the property in northern Cyprus of deceased Greek-Cypriot relatives were not recognised.",
"271. Concerning the applicant Government's allegation of a lack of protection for Greek Cypriots against acts of criminal damage to their property, the Court considers that the evidence adduced does not establish to the required standard that there is an administrative practice on the part of the “TRNC” authorities of condoning such acts or failing to investigate or prevent them. It observes that the Commission carefully studied the oral evidence of witnesses but was unable to conclude that the allegation was substantiated. Having regard to its own assessment of the evidence relied on by the applicant Government, the Court accepts that conclusion. It further observes that the “domestic law” of the “TRNC” provides for civil actions to be taken against trespassers and criminal complaints to be lodged against wrongdoers. The “TRNC” courts have on occasion found in favour of Greek-Cypriot litigants. As noted previously, it has not been established on the evidence that there was, during the period under consideration, an administrative practice of denying individuals from the enclaved population access to a court to vindicate their civil rights (see paragraph 240 above).",
"272. The Court concludes accordingly that no violation of Article 1 of Protocol No. 1 has been established by reason of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons.",
"8. Article 2 of Protocol No. 1",
"273. The applicant Government averred that the children of Greek Cypriots living in northern Cyprus were denied secondary-education facilities and that Greek-Cypriot parents of children of secondary-school age were in consequence denied the right to ensure their children's education in conformity with their religious and philosophical convictions. The applicant Government relied on Article 2 of Protocol No. 1, which states:",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"274. The applicant Government approved the reasons given by the Commission for finding a violation of the above provision. However, they requested the Court to rule that this provision had also been breached on account of the prevention by the respondent State of appropriate primary-school teaching until the end of 1997. Before that date, the “TRNC” had not permitted the appointment of a primary-school teacher. In the applicant Government's submission this policy interfered with the right of Greek-Cypriot children to a primary education.",
"275. The Commission, with reference to the principles set out by the Court in the Case relating to certain aspects of the laws on the use of languages in education in Belgium ( merits ) (judgment of 23 July 1968, Series A no. 6), observed that the secondary educational facilities which were formerly available to children of Greek Cypriots had been abolished by the Turkish-Cypriot authorities. Accordingly, the legitimate wish of Greek Cypriots living in northern Cyprus to have their children educated in accordance with their cultural and ethnic tradition, and in particular through the medium of the Greek language, could not be met. The Commission further considered that the total absence of secondary-school facilities for the persons concerned could not be compensated for by the authorities' allowing pupils to attend schools in the south, having regard to the fact that restrictions attached to their return to the north (see paragraph 44 above). In the Commission's conclusion, the practice of the Turkish-Cypriot authorities amounted to a denial of the substance of the right to education and a violation of Article 2 of Protocol No. 1.",
"276. As to the provision of primary-school education in the Greek language, the Commission considered that the right to education of the population concerned had not been disregarded by the Turkish-Cypriot authorities and that any problems arising out of the vacancy for teaching posts had been resolved.",
"277. The Court notes that children of Greek-Cypriot parents in northern Cyprus wishing to pursue a secondary education through the medium of the Greek language are obliged to transfer to schools in the south, this facility being unavailable in the “TRNC” ever since the decision of the Turkish ‑ Cypriot authorities to abolish it. Admittedly, it is open to children, on reaching the age of 12, to continue their education at a Turkish or English-language school in the north. In the strict sense, accordingly, there is no denial of the right to education, which is the primary obligation devolving on a Contracting Party under the first sentence of Article 2 of Protocol No. 1 (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, pp. 25-26 § 52). Moreover, this provision does not specify the language in which education must be conducted in order that the right to education be respected (see the above-mentioned Belgian linguistic judgment, pp. 30-31, § 3).",
"278. However, in the Court's opinion, the option available to Greek-Cypriot parents to continue their children's education in the north is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there. The authorities must no doubt be aware that it is the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the “TRNC” authorities to make continuing provision for it at the secondary-school level must be considered in effect to be a denial of the substance of the right at issue. It cannot be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfil the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life (see paragraph 277 above and paragraph 292 below).",
"279. The Court notes that the applicant Government raise a further complaint in respect of primary-school education and the attitude of the “TRNC” authorities towards the filling of teaching posts. Like the Commission, it considers that, taken as a whole, the evidence does not disclose the existence of an administrative practice of denying the right to education at primary-school level.",
"280. Having regard to the above considerations, the Court concludes that there has been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them.",
"C. Overall examination of the living conditions of Greek Cypriots in northern Cyprus",
"1. Article 8 of the Convention",
"281. The applicant Government asserted that the respondent State, as a matter of administrative practice, violated in various respects the right of Greek Cypriots living in northern Cyprus to respect for their private life and home. The applicant Government invoked Article 8 of the Convention.",
"282. The applicant Government requested the Court to confirm the Commission's finding that Article 8 was violated, firstly, on account of the separation of families brought about by continuing restrictions on the right of Greek Cypriots to return to their homes in the north and, secondly, as a result of the effect of the entirety of these restrictions on the enclaved population.",
"283. In their further submissions, the applicant Government maintained that the Commission had failed to make an express finding that Article 8 had been breached by virtue of the effect which the various restrictions on freedom of movement of the enclaved Greek Cypriots had during the period under consideration on their right to respect for private life. They highlighted in this connection the restrictions which prevented the enclaved Greek Cypriots from assembling or meeting with other individuals on an informal or ad hoc basis or attending bi-communal meetings or other gatherings (see paragraphs 256-57 above). The applicant Government also contended that a further and separate breach of the right to respect for private life should be found in view of the consequences which the restrictions on movement had on the access of enclaved Greek Cypriots to medical treatment (see paragraphs 216-17 above). In this connection, the applicant Government observed that the requirement to obtain permission for medical treatment and the denial of visits by Greek-Cypriot doctors or Maronite doctors of their choice interfered with the right of Greek Cypriots in the north to respect for their private life.",
"284. The applicant Government further contended that the evidence before the Commission clearly showed that Article 8 had been breached in the following additional respects: interference by the “TRNC” authorities with the right to respect for correspondence by way of searches at the Ledra Palace crossing-point and confiscation of letters; denial by the same authorities for a lengthy period, and on a discriminatory basis, of the installation of telephones in homes of Greek Cypriots and interception of such calls as they were able to make.",
"285. The applicant Government reiterated their view that the respondent State through its policy of colonisation had engaged in deliberate manipulation of the demographic and cultural environment of the “home” of the Greek Cypriots (see paragraph 167 above). They requested the Court to find a breach of Article 8 on that account.",
"286. The applicant Government stated in conclusion that the Court should address the Commission's failure to deal individually with each of the above interferences and to find that they gave rise to separate breaches of Article 8.",
"287. The Commission examined the applicant Government's complaints from a global standpoint while not losing sight of the distinct aspects of that provision (see paragraph 214 above). It found on the facts that the restrictions imposed by the “TRNC” authorities during the period under consideration on the freedom of movement of Greek Cypriots to and from the south had the effect of gravely interfering with the right of the enclaved Greek Cypriots to respect for family life. Furthermore, their movement within the Karpas region, including to neighbouring villages or towns, was accompanied by measures of strict and invasive police control. The Commission noted that visitors to their homes were physically accompanied by police officers who, in certain cases, stayed with the visitors inside the host's home. In the Commission's opinion, this administrative practice amounted to a clear interference with the right of the enclaved Greek Cypriots to respect for their private life and home.",
"288. The Commission observed that no remedies were available to challenge the measures applied to the enclaved population and that they could not be justified in any manner with respect to the provisions of paragraph 2 of Article 8.",
"289. In view of the above finding the Commission did not consider it necessary to address the merits of the applicant Government's complaint concerning the alleged effect of the respondent State's colonisation policy on the demographic and cultural environment of the Greek Cypriots' homes.",
"290. Furthermore, the Commission did not find it established on the evidence that, during the period under consideration, there had been an administrative practice of disregarding the right of Greek Cypriots living in northern Cyprus to respect for their correspondence.",
"291. The Commission noted however that, taken as a whole, the daily life of Greek Cypriots in northern Cyprus was characterised by a multitude of adverse circumstances, which were to a large extent the direct result of the official policy conducted by the respondent State and its subordinate administration. In the Commission's view these adverse factors served to aggravate the breach of the enclaved Greek Cypriots' right to respect for their private and family life and respect for their home.",
"292. The Court observes in the first place that the facts as found by the Commission confirm that, during the period under consideration, the right of the enclaved Greek Cypriots to family life was seriously impeded on account of the measures imposed by the “TRNC” authorities to limit family reunification. Thus, it was not disputed by the respondent Government in the proceedings before the Commission that Greek Cypriots who permanently left the northern part of Cyprus were not allowed to return even if they left a family behind (see paragraph 29 above). Although arrangements were introduced by the “TRNC” authorities to facilitate to a limited extent family visits in 1998, the period under consideration for the purposes of the instant application was characterised by severe limitations on the number and duration of such visits. Furthermore, during the reference period schoolchildren from northern Cyprus attending schools in the south were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. It is also to be observed that certain restrictions applied to the visits of those students to their parents in the north (see paragraph 43 above).",
"293. In the Court's opinion, the imposition of these restrictions during the period under consideration as a matter of policy and in the absence of any legal basis resulted in the enforced separation of families and the denial to the Greek-Cypriot population in the north of the possibility of leading a normal family life. In the absence of any legal basis for these restrictions, the Court does not have to consider whether the interferences at issue can be justified with reference to the provisions of Article 8 § 2 of the Convention. For the same reason it does not have to consider either whether aggrieved individuals could have been expected to exhaust domestic remedies to challenge what in effect amounts to an administrative practice of interference with the right to respect for family life.",
"294. As to the alleged interferences with the right of the enclaved Greek Cypriots to respect for their private life and home, the Court notes that the Commission found it established on the evidence that, during the period under consideration, this community was in effect monitored in respect of its contacts and movements (see paragraph 287 above), Greek Cypriots having to account to the authorities for even the most mundane of reasons for moving outside the confines of their villages. The Court further notes that the surveillance effected by the authorities even extended to the physical presence of State agents in the homes of Greek Cypriots on the occasion of social or other visits paid by third parties, including family members.",
"295. The Court considers that such highly intrusive and invasive acts violated the right of the Greek-Cypriot population in the Karpas region to respect for their private and family life. No legal basis for these acts has been adduced, less so any justification which could attract the provisions of Article 8 § 2 of the Convention. They were carried out as a matter of practice. As such, no question as to the exhaustion of local remedies arises in the circumstances.",
"296. Having regard to the above considerations, the Court concludes that there has been a violation of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home, as guaranteed by Article 8 of the Convention.",
"297. The Court further notes that the applicant Government contest the Commission's finding that it has not been established that during the period under consideration the correspondence of the enclaved Greek Cypriots was intercepted or opened as a matter of administrative practice. Having regard to its own assessment of the evidence, the Court considers that the applicant Government's challenge to the Commission's conclusion cannot be sustained. It observes that the evidence does bear out that in certain cases persons at the Ledra Palace crossing-point were searched for letters. However, the evidence before it does not substantiate to the required standard the allegation that such searches were carried out as a matter of administrative practice; nor does it support the view that there was a consistent practice of tapping telephone calls made to and from the homes of Greek Cypriots.",
"298. In view of the above considerations, the Court concludes that no violation of Article 8 of the Convention has been established by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence.",
"299. The Court notes that the applicant Government do not dispute the Commission's decision to examine globally the living conditions of Greek Cypriots in northern Cyprus from the standpoint of Article 8. They do, however, request the Court to isolate from that examination a number of alleged specific interferences with the right to respect for private life and to rule separately on their merits (see paragraphs 283-86 above). In the Court's opinion, the matters relied on by the applicant Government in this connection are in reality bound up with their more general allegation that the respondent State pursues a policy which is intended to claim the northern part of Cyprus for Turkish Cypriots and settlers from Turkey to the exclusion of any Greek-Cypriot influence. The applicant Government maintain that this policy is manifested in the harshness of the restrictions imposed on the enclaved Greek-Cypriot population. For the Court, the specific complaints invoked by the applicant Government regarding impediments to access to medical treatment and hindrances to participation in bi- or inter-communal events (see paragraphs 216-227, 257 and 283 above) are elements which fall to be considered in the context of an overall analysis of the living conditions of the population concerned from the angle of their impact on the right of its members to respect for private and family life.",
"300. In this connection the Court cannot but endorse the Commission's conclusion at paragraph 489 of its report that the restrictions which beset the daily lives of the enclaved Greek Cypriots create a feeling among them “of being compelled to live in a hostile environment in which it is hardly possible to lead a normal private and family life”. The Commission noted in support of this conclusion that the adverse circumstances to which the population concerned was subjected included: the absence of normal means of communication (see paragraph 45 above); the unavailability in practice of the Greek-Cypriot press (see paragraph 45 above); the insufficient number of priests (see paragraph 47 above); the difficult choice with which parents and schoolchildren were faced regarding secondary education (see paragraphs 43-44 above); the restrictions and formalities applied to freedom of movement, including, the Court would add, for the purposes of seeking medical treatment and participation in bi- or inter-communal events; the impossibility of preserving property rights upon departure or on death (see paragraph 40 above).",
"301. The Court, like the Commission, considers that these restrictions are factors which aggravate the violations which it has found in respect of the right of the enclaved Greek Cypriots to respect for private and family life (see paragraph 296 above). Having regard to that conclusion, the Court is of the view that it is not necessary to examine separately the applicant Government's allegations under Article 8 concerning the implantation of Turkish settlers in northern Cyprus (see paragraph 285 above).",
"2. Article 3 of the Convention",
"302. The applicant Government alleged that, as a matter of practice, Greek Cypriots living in the Karpas area of northern Cyprus were subjected to inhuman and degrading treatment, in particular discriminatory treatment amounting to inhuman and degrading treatment.",
"303. They submitted that the Court should, like the Commission, find that Article 3 had been violated. The applicant Government fully endorsed the Commission's reasoning in this respect.",
"304. The Commission did not accept the respondent Government's argument that it was prevented from examining whether the totality of the measures impugned by the applicant Government, including those in respect of which it found no breach of the Convention, provided proof of the pursuit of a policy of racial discrimination amounting to a breach of Article 3 of the Convention. The Commission had particular regard in this connection to its report under former Article 31 in the East African Asians v. the United Kingdom case adopted on 14 December 1973 (Decisions and Reports 78-A, p. 62). Having regard to the fact that it found the Convention to be violated in several respects, the Commission noted that all the established interferences concerned exclusively Greek Cypriots living in northern Cyprus and were imposed on them for the very reason that they belonged to this class of persons. In the Commission's conclusion, the treatment complained of was clearly discriminatory against them on the basis of their “ethnic origin, race and religion”. Regardless of recent improvements in their situation, the hardships to which the enclaved Greek Cypriots were subjected during the period under consideration still affected their daily lives and attained a level of severity which constituted an affront to their human dignity.",
"305. The Court recalls that in its Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), it accepted the applicants' argument that, irrespective of the relevance of Article 14, a complaint of discriminatory treatment could give rise to a separate issue under Article 3. It concluded on the merits that the difference of treatment complained of in that case did not denote any contempt or lack of respect for the personality of the applicants and that it was not designed to, and did not, humiliate or debase them (p. 42, §§ 90-92).",
"306. The Court further recalls that the Commission, in its decision in the above-mentioned East African Asians case, observed, with respect to an allegation of racial discrimination, that a special importance should be attached to discrimination based on race and that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special affront to human dignity. In the Commission's opinion, differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question (loc. cit., p. 62, § 207).",
"307. With these considerations in mind the Court cannot but observe that the United Nations Secretary-General, in his progress report of 10 December 1995 on the “Karpas Brief” (see paragraph 36 above), stated that the review carried out by UNFICYP of the living conditions of the Karpas Greek Cypriots confirmed that they were the object of very severe restrictions which curtailed the exercise of basic freedoms and had the effect of ensuring that, inexorably, with the passage of time, the community would cease to exist. He made reference to the facts that the Karpas Greek Cypriots were not permitted by the authorities to bequeath immovable property to a relative, even the next-of-kin, unless the latter also lived in the north; there was no secondary-school facilities in the north and Greek-Cypriot children who opted to attend secondary schools in the south were denied the right to reside in the north once they reached the age of 16 in the case of males and 18 in the case of females.",
"308. The Court notes that the Humanitarian Review reflected in the “Karpas Brief” covered the years 1994-95, which fall within the period under consideration for the purposes of the complaints contained in the present application. It recalls that the matters raised by the United Nations Secretary-General in his progress report have, from the perspective of the Court's analysis, led it to conclude that there have been violations of the enclaved Greek Cypriots' Convention rights. It further notes that the restrictions on this community's freedom of movement weigh heavily on their enjoyment of private and family life (see paragraphs 292-93 above) and their right to practise their religion (see paragraph 245 above). The Court has found that Articles 8 and 9 of the Convention have been violated in this respect.",
"309. For the Court it is an inescapable conclusion that the interferences at issue were directed at the Karpas Greek-Cypriot community for the very reason that they belonged to this class of persons. The treatment to which they were subjected during the period under consideration can only be explained in terms of the features which distinguish them from the Turkish-Cypriot population, namely their ethnic origin, race and religion. The Court would further note that it is the policy of the respondent State to pursue discussions within the framework of the inter-communal talks on the basis of bi-zonal and bi-communal principles (see paragraph 16 above). The respondent State's attachment to these principles must be considered to be reflected in the situation in which the Karpas Greek Cypriots live and are compelled to live: isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community. The conditions under which that population is condemned to live are debasing and violate the very notion of respect for the human dignity of its members.",
"310. In the Court's opinion, and with reference to the period under consideration, the discriminatory treatment attained a level of severity which amounted to degrading treatment.",
"311. The Court concludes that there has been a violation of Article 3 of the Convention in that the Greek Cypriots living in the Karpas area of northern Cyprus have been subjected to discrimination amounting to degrading treatment.",
"3. Article 14 of the Convention taken in conjunction with Article 3",
"312. The applicant Government stated that, notwithstanding the Commission's conclusion on their complaint under Article 3, a conclusion which they endorsed, the Court should give separate examination to the discriminatory measures imposed on, and exclusively on, Greek Cypriots living in northern Cyprus from the standpoint of compliance with Article 14 of the Convention. The applicant Government submitted that, since the enclaved Greek Cypriots were victims of unreasonable and unjustified differences in treatment based on racial and religious grounds, the fundamental principle underlying Article 14 was violated as a matter of practice. They contended that the elements of discrimination included the pattern of restrictions and pressures which constituted the policy of ethnic cleansing in the Karpas region; the respondent State's policy of demographic homogeneity; the continuing violations of Greek-Cypriots' property rights as a consequence of the systematic implantation of settlers; the restrictions on the movement of displaced Greek Cypriots as a facet of ethnic exclusiveness; the transfer of possession of the property of displaced Greek Cypriots forced to leave the Karpas region to Turkish settlers; and the continued deprivation of possessions of Greek Cypriots located within the Turkish-occupied area.",
"313. The Commission, for its part, did not find it necessary, in view of its finding on the applicant Government's Article 3 complaint, to consider the instant complaints also in the context of the respondent State's obligations under Article 14.",
"314. The Court agrees with the Commission's conclusion. Having regard to the reasoning which underpins its own finding of a violation of Article 3 it considers that there is no need to pronounce separately on what is in reality a restatement of a complaint which is substantially addressed in that finding.",
"315. The Court concludes therefore that, in view of its finding under Article 3 of the Convention, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 in respect of Greek Cypriots living in northern Cyprus.",
"4. Article 14 of the Convention taken in conjunction with other relevant Articles",
"316. The applicant Government requested the Court to find that the respondent State's policies towards the enclaved Greek Cypriots involved violations of Article 14 of the Convention taken in conjunction with the relevant provisions. They submitted that the population concerned was discriminated against in the enjoyment of the rights guaranteed under these provisions on racial, religious and linguistic grounds.",
"317. The Court considers that, having regard to the particular circumstances of this case, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with the other relevant Articles.",
"D. Alleged violation of Article 13 of the Convention",
"318. The applicant Government contended that, both as a matter of law and practice, the respondent State failed to provide an effective remedy before a national authority which complied either with Article 6 or other requirements which would bring the remedy into line with the requirements of Article 13.",
"319. The applicant Government invoked Article 13 of the Convention in support of their allegations that Greek Cypriots living in northern Cyprus were denied any opportunity to contest interferences with their rights, including by private persons acting with the acquiescence or encouragement of the “TRNC” authorities.",
"320. The applicant Government did not dispute the Commission's finding of a violation of Article 13 with respect to the interferences by the “TRNC” authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1.",
"321. However, in the applicant Government's view, the Commission had erred in its conclusions that, in respect of interference by private persons with the rights of the enclaved Greek Cypriots to respect for their home (Article 8) and property (Article 1 of Protocol No. 1), Article 13 had not been violated. The applicant Government emphasised that these conclusions overlooked, firstly, the inadequacies of “TRNC” courts from the standpoint of the requirements of Article 6 of the Convention (see paragraphs 83-85 above) and, secondly, the evidentiary test for establishing the existence of an administrative practice of violation of Convention rights (see paragraph 114 above). As to the latter point, the applicant Government maintained that, rather than examining whether there was “substantial evidence” before it which pointed to a pattern or system of non-investigation of criminal acts against the population concerned, and it clearly did, the Commission had wrongly focused on whether there were effective remedies available to aggrieved persons before the “TRNC” courts. The applicant Government contended that the Commission had failed, in particular, to take account of the fact that there was a failure, imputable to the respondent State, to provide effective remedies through tolerance by the authorities of repeated acts of criminality against the homes and property of the Greek-Cypriot population and that failure could not be condoned on the misconceived assumption that the “TRNC” courts existed as a means of redress.",
"For this reason, the applicant Government requested the Court to declare that Article 13 of the Convention had also been violated in respect of trespass and damage to property by private persons and interferences by them with the right to respect for the home of Greek Cypriots.",
"322. The Commission recalled its conclusion in respect of the applicant Government's complaint under Article 6 of the Convention (see paragraphs 230-32 above) as well as its decision to consider the issue of whether an effective remedy within the meaning of former Article 26 could be considered to exist in respect of the different allegations advanced by the applicant Government (see paragraphs 86-88 above). With that in mind, the Commission concluded that there had been no violation of Article 13 in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Articles 8 of the Convention and Article 1 of Protocol No. 1, whereas there had been a violation of Article 13 in respect of interferences by the authorities with their rights under Articles 3, 8, 9, and 10 of the Convention and Articles 1 and 2 of Protocol No. 1.",
"323. The Court agrees with the Commission's conclusion. It recalls that it has analysed in respect of the various allegations advanced by the applicant Government whether the persons concerned had available to them remedies which were sufficiently certain not only in theory but also in practice and whether there were any special circumstances which might be considered to absolve them from the requirement to exhaust them (see paragraph 99 above). In so doing, the Court has had regard to the burden of proof and how it is distributed between the parties in respect of the exhaustion rule (see paragraph 116 above). In the absence of the respondent Government in the proceedings before it, the Court has had especial regard to the oral and written evidence adduced in the case and has taken due account of the applicant Government's submissions raising points and evidence on which they disagree with the Commission's findings, including the existence of domestic remedies.",
"324. Notwithstanding the applicant Government's objections to certain of the Commission's conclusions, the Court is led to reaffirm on the evidence its earlier conclusions, which, it recalls, reflect those of the Commission. These are summarised below.",
"Firstly, the Court finds that no violation of Article 13 of the Convention has been established in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1. It recalls in this respect that it has not been shown on the evidence that during the period under consideration there was an administrative practice on the part of the “TRNC” authorities of condoning acts of criminality against the homes and property of the enclaved Greek-Cypriot population; nor has it been shown to the same standard of proof that there was an administrative practice of denying aggrieved persons access to a court to assert rights in this connection. In the proceedings before the Commission, the respondent Government produced evidence in support of their contention that court remedies were available and highlighted the successful claims brought by a number of Greek-Cypriot litigants. While observing that neither Article 6 nor Article 13 of the Convention guarantee a successful outcome to an applicant in court proceedings, the Court considers that the applicant Government have failed to rebut the evidence laid before the Commission that aggrieved Greek Cypriots had access to local courts in order to assert civil claims against wrongdoers.",
"Secondly, it finds that there has been a violation of Article 13 of the Convention in respect of interferences by the authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1. These interferences resulted from an administrative practice of violating the rights at issue; no remedies, or no effective remedies, were available to aggrieved persons.",
"VI. Alleged violation of the right of displaced Greek Cypriots to hold elections",
"325. The applicant Government, in the proceedings before the Commission, claimed that Article 3 of Protocol No. 1 had been violated in that displaced Greek Cypriots were prevented from effectively enjoying the right freely to elect representatives in the Cyprus legislature in respect of the occupied territory. The applicant Government did not pursue this complaint before the Court either in their written or oral submissions.",
"326. The Court, while noting that the Commission did not find on the merits that the provision in question had been violated, does not consider it necessary to examine the complaint, having regard to the fact that the complaint has not been pursued by the applicant Government.",
"327. The Court concludes, accordingly, that it is not necessary to examine of its own motion whether the facts disclose a violation of Article 3 of Protocol No. 1.",
"VII. Alleged violations in respect of the rights of Turkish Cypriots, including members of the Gypsy community, living in northern Cyprus",
"328. The applicant Government pleaded that Turkish Cypriots resident in northern Cyprus who were opponents of the “TRNC” regime, as well as members of the Gypsy community living in the north, were victims of major violations of their Convention rights. These violations, they contended, occurred as a matter of administrative practice. The applicant Government pleaded in addition that there were no effective remedies to secure redress in respect of the violations.",
"329. The applicant Government relied on Articles 3, 5, 6, 8, 10, 11, 13 and 14 of the Convention and Articles 1 and 2 of Protocol No. 1, distinguishing, as appropriate, between alleged violations of the rights of Turkish Cypriots and those of the Gypsy community.",
"A. The scope of the complaints before the Court",
"1. The applicant Government's submissions",
"330. In the applicant Government's submission, the Commission had incorrectly excluded from the scope of its examination on the merits several major complaints on the ground that they had not been raised in specific form at the admissibility stage of the proceedings and were thus not in substance covered by the admissibility decision. The complaints in question related to, inter alia : pervasive discrimination against and the degrading treatment of the Gypsy community, in breach of Article 3; degrading treatment of Turkish Cypriots, including arrests and detention of political opponents and of those who sought asylum in the United Kingdom because of human-rights violations, in breach of Article 3; the conferment of extensive jurisdiction on military courts to try civilians, in breach of Article 6; and violations of the right to respect for private and family life and the home of indigenous Turkish Cypriots through a policy of mass settlement and colonisation by mainland Turks, in breach of Article 8.",
"331. The applicant Government disputed the Commission's approach to the interpretation of the admissibility decision and in particular its view that the above-mentioned complaints were only expanded on at the merits stage. They asserted that all of the above-mentioned issues had either explicitly or by necessary implication been raised as complaints at the admissibility stage. The applicant Government argued that the evidence which they had adduced at the merits stage did not raise new issues but was relevant to the issues or grounds of complaint already raised. They sought support for this view in their contention that the respondent Government had replied to these complaints in their observations of November 1997 and were given until 27 August 1998 by the Commission to forward further observations following Cyprus's submissions on 1 June 1998. They added that the Commission had itself laid down the scope of the complaints to be considered in the mandate which it had assigned to the delegates on 15 September 1997. The applicant Government insisted that all of their complaints were within the scope of the mandate as defined by the Commission.",
"2. The Court's response",
"332. The Court notes that the Commission declared admissible complaints introduced by the applicant Government under Articles 5, 6, 10, 11 and 13 of the Convention and Article 1 of Protocol No 1. These complaints were made with respect to Turkish Cypriots. The Commission also declared admissible complaints under Articles 3, 5 and 8 of the Convention in relation to the treatment of Turkish-Cypriot Gypsies who had sought asylum in the United Kingdom. The Court observes that in respect of all these complaints the applicant Government relied on specific sets of facts in support of their allegations. At the merits stage the applicant Government advanced further materials which, in their view, were intended to elaborate on the facts initially pleaded in support of the complaints declared admissible. However, in the Commission's opinion the materials had the effect of introducing new complaints which had not been examined at the admissibility stage. For this reason, the Commission could not entertain what it considered to be “additional complaints”. The Court notes that the complaints now invoked by the applicant Government fall into this category.",
"333. The Court finds no reason to depart from the Commission's view of the scope of its admissibility decision. It notes in this respect that the Commission carefully examined the materials submitted by the applicant Government in the post-admissibility phase and was anxious not to exclude any further submissions of fact which could reasonably be considered to be inherently covered by its admissibility decision. It is for this reason that the Commission could properly relate the applicant Government's post-admissibility pleadings on various aspects of the alleged treatment of political opponents to the complaint which it had declared admissible under Article 5 of the Convention relating to violation of the security of their person. In a similar vein, the Court also considers that the Commission was justified in rejecting complaints which it clearly felt were new complaints, for example as regards the effects of the respondent State's policy with respect to settlers on the right of the indigenous Turkish Cypriots to respect for private life.",
"334. The Court recalls that the Commission's decision declaring an application admissible determines the scope of the case brought before the Court; it is only within the framework so traced that the Court, once a case is duly referred to it, may take cognisance of all questions of fact or of law arising in the course of the proceedings (see the above-mentioned Ireland v. the United Kingdom judgment, p. 63, § 157, and the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56). Accordingly it is the facts as declared admissible by the Commission which are decisive for its jurisdiction (see, for example, the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I, p. 223, § 44). Although the Court is empowered to give a characterisation in law to those facts which is different from that applied in the proceedings before the Commission, its jurisdiction cannot extend to considering the merits of new complaints which have not been pleaded at the admissibility stage of the proceedings with reference to supporting facts (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, pp. 277-78, § 63); nor is the Court persuaded by the applicant Government's argument that the grounds set out in their original application were closely connected with the ones pleaded at the merits stage but rejected by the Commission.",
"335. For these reasons, and having regard to the facts and grounds of complaint advanced by the applicant Government at the admissibility stage, the Court confirms the Commission's view of the scope of its admissibility decision. On that account it will not examine any complaints adjudged by the Commission to fall outside the scope of that decision.",
"B. The establishment of the facts",
"1. The applicant Government's submissions",
"336. The applicant Government maintained that the Commission had applied the wrong legal test in determining whether there existed an administrative practice of violating the Convention. They referred in this connection to the Commission's findings that it had not been proved “beyond reasonable doubt”, firstly, that there was a practice by the “TRNC” authorities and the courts of refusing legal protection to political opponents; secondly, that there was a practice of discriminating against the Gypsy community or denying them legal protection; and, thirdly, that there was a practice of condoning interferences by criminal conduct with the property of Turkish Cypriots or denying the latter legal protection.",
"337. The applicant Government submitted in the above connection that it was sufficient under the Convention to establish proof of a practice with reference to the existence of “substantial evidence” of such, which, as regards these three allegations, there clearly was.",
"338. As to the Commission's evaluation of the evidence, the applicant Government claimed that the value of certain of the Commission's findings of no violation was undermined on account of the limits placed by the Commission's delegates on the number of witnesses who could be heard and the conclusions which the Commission drew from the credibility of those witnesses who did in fact testify.",
"2. The Court's response",
"339. The Court reiterates at the outset its earlier conclusion that limits placed by the Commission's delegates on the number of witnesses who could be heard in support of the Government's case did not undermine the principle of procedural equality (see paragraph 110 above). It is the applicant Government's contention that the delegates, by refusing to allow additional witness testimony, denied themselves the opportunity to be apprised fully of the weight of the evidence against the respondent State. However, in the Court's view, the delegates' decision could properly be justified with reference to their perception of relevance and sufficiency of evidence at the time of the hearing of witnesses. The Court sees no reason to doubt that the delegates would have admitted further witnesses had they considered that additional oral testimony would have contributed to the substantiation of the facts as alleged by the applicant Government. Moreover, it does not appear to the Court that the applicant Government pressed their wish to have further witnesses heard by the delegates. The main protest to the arrangements made by the delegates for hearing witnesses came from the respondent's side (see paragraphs 109-10 above). This must be seen as a relevant consideration to be weighed in the balance.",
"340. The Court is of course attentive to the fact that, unlike the investigation conducted into the situation of the Karpas Greek Cypriots, the Commission's establishment of the facts in respect of the instant category of complaints could not draw on United Nations factual reviews. The Commission relied heavily on the evidence of the witnesses heard by the delegates. It does not appear to the Court that the Commission can be faulted for adopting a cautious approach to the evaluation of witness testimony, having regard to the nature of the allegations made by the applicant Government's witnesses, the inevitable element of subjectivity which colours the evidence of individuals who are impugning a regime with which they profoundly disagree and the testimony of supporters of that regime. In the Court's opinion, the Commission was correct in its decision to base its evaluation mostly on the common points which emerged from the various witnesses' testimony as a whole.",
"It does not see any reason to depart from the facts as found by the Commission (see paragraphs 52-55 above).",
"341. The Court will ascertain whether the facts as found disclose a violation of the rights invoked by the applicant Government. As to the standard of proof, it rejects the applicant Government's submissions in respect thereof and will apply a standard of proof “beyond reasonable doubt”.",
"C. The merits of the applicant Government's complaints",
"1. Complaints relating to Turkish-Cypriot political opponents",
"342. The applicant Government alleged that Turkish Cypriots living in northern Cyprus who were political opponents of the “TRNC” regime were subject to arbitrary arrest and detention, in violation of their rights under Article 5 of the Convention. In addition, they were assaulted, threatened and harassed by third parties, in violation of Article 8 of the Convention. The applicant Government further alleged, with reference to Article 10 of the Convention, that the authorities failed to protect the right to freedom of expression by tolerating third-party constraints on the exercise of this right. These constraints took the form of, for example, denial of employment to political opponents or threats or assaults by private parties against their person. The applicant Government further contended that as a result of the “TRNC”'s general policy in the area of freedom of movement, the right of political opponents to freedom of association was violated on account of the interferences with their right to gather with Greek Cypriots and others in Cyprus. Finally, the applicant Government asserted that, in view of the aforementioned background, it had to be concluded that political opponents of the “TRNC” regime were victims of ill-treatment or degrading treatment in breach of Article 3 of the Convention.",
"343. The applicant Government averred that there was an administrative practice of violation of the above Convention rights and that this was confirmed by the substantial evidence adduced by the witnesses who were heard by the delegates. They maintained that the oral testimony commonly and consistently established administrative practices of the “TRNC” authorities of refusing to protect the rights of political opponents of the ruling parties, irrespective of whether such interferences were caused by third parties or by the authorities themselves.",
"344. The applicant Government further stated that the Commission had erred in its conclusion that habeas corpus proceedings ought to have been used by victims of unlawful arrest and detention. That remedy, they submitted, could not be considered effective in cases of brief arrests and detentions followed by release, all the more so since detainees had no access to a lawyer. Nor could the potential to seek a remedy ipso facto prevent the finding of an administrative practice of violation of Convention rights. In the applicant Government's submission the Commission's focus should have been on the tolerance by the authorities of repeated abuse of the rights of political opponents under Articles 5, 8 and 10 and 11 of the Convention. For the applicant Government, the practice which they alleged was based on that state of affairs, not on the non-availability of judicial remedies.",
"345. The Commission concluded that there had been no violation of the rights invoked by the applicant Government by reason of failure to protect these rights. The Commission observed that it could not be excluded that in individual cases there had been interferences by the authorities with the rights of Turkish Cypriots by reason of their political opposition to the ruling parties in northern Cyprus. However, it also noted that the individuals concerned did not attempt to seek redress for their grievances, for example by making use of the remedy of habeas corpus to challenge the lawfulness of their arrest or detention. For the Commission, it had not been shown beyond reasonable doubt that all of the available remedies would have been ineffective.",
"346. The Court accepts the Commission's conclusion. Its own assessment of the evidence leads it to believe that there may have been individual cases of interferences with the rights of political opponents. However, it cannot conclude on the strength of that evidence that there existed during the period under consideration an administrative practice of suppressing all dissent directed at the “TRNC” ruling parties or an official policy of acquiescing in interferences by pro-“TRNC” supporters with the rights invoked by the applicant Government. The Court must have regard to the fact that the complaints alleged by the applicant Government are shaped in a vulnerable political context bolstered by a strong Turkish military presence and characterised by social rivalry between Turkish settlers and the indigenous population. Such a context has lead to tension and, regrettably, to acts on the part of the agents of the “TRNC” which violate Convention rights in individual cases. However, the Court considers that neither the evidence adduced by the applicant Government before the Commission nor their criticism of the Commission's evaluation of that evidence can be said to controvert the finding that it has not been shown beyond reasonable doubt that the alleged practice existed during the period under consideration.",
"347. The Court further notes that the Commission observed that aggrieved individuals did not test the effectiveness of remedies available in the “TRNC” legal system in order to secure redress for their complaints. The Court for its part considers that the respondent Government, in their submissions to the Commission, made out a case for the availability of remedies, including the remedy of habeas corpus. It is not persuaded on the evidence before it that it has been shown that these remedies were inadequate and ineffective in respect of the matters complained of or that there existed special circumstances absolving the individuals in question from the requirement to avail themselves of these remedies. In particular, and as previously noted, the evidence does not show to the Court's satisfaction that the “TRNC” authorities have, as a matter of administrative practice, remained totally passive in the face of serious allegations of misconduct or infliction of harm either by State agents or private parties acting with impunity (see, mutatis mutandis, the above-mentioned Akdivar and Others judgment, p. 1211, § 68; and paragraph 115 above, in fine ).",
"348. Having regard to the above considerations, the Court concludes that it has not been established that, during the period under consideration, there has been an administrative practice of violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention, including by reason of an alleged practice of failing to protect their rights under these provisions.",
"2. Complaints relating to the Turkish-Cypriot Gypsy community",
"349. The applicant Government stated that the Gypsy community living in northern Cyprus was subjected, as a matter of practice, to discriminatory and degrading treatment so extensive that many Gypsies were compelled to seek political asylum in the United Kingdom. The applicant Government relied on Articles 3, 5, 8 and 14 of the Convention.",
"350. The applicant Government submitted that the Commission had erred in finding that members of the Gypsy community who had experienced hardship had not exhausted domestic remedies. They contended that the evidence heard by the delegates confirmed that Gypsies could not afford litigation and that legal aid was not available to them for civil proceedings. In any event, the allegation at issue concerned a continuing administrative practice of discriminatory and degrading treatment of the Gypsy community and substantial evidence of such had been adduced. The Commission had wrongly focused on the availability of remedies with reference to the “beyond reasonable doubt” test rather than on the key issue of whether there was substantial evidence of an administrative practice of discriminatory and degrading treatment against the Gypsy community.",
"351. The Commission observed that individual members of the Gypsy community had experienced hardship during the period under consideration. It referred in this connection to the demolition of the shacks of a Gypsy community near Morphou upon the order of the local authority, the refusal of airline companies to transport Gypsies without a visa and humiliation of Gypsy children in school. However, in the Commission's conclusion the aggrieved persons had not exhausted available domestic remedies and it had not been established beyond reasonable doubt that there was a deliberate practice to discriminate against Gypsies or withhold protection against social discrimination. The Commission accordingly found that there had been no violation of Articles 3, 5, 8 and 14 of the Convention.",
"352. The Court observes that members of the Turkish-Cypriot Gypsy community have suffered hardship at the hands of the “TRNC” authorities. It refers in this respect to the instances identified by the Commission (see paragraph 54 above). However, the Court does not consider that these individual cases bear out the claim that there existed during the period under consideration an administrative practice of violating the rights invoked by the applicant Government. It further observes that it does not appear that any of the members of the Turkish ‑ Cypriot Gypsy community who claim to have suffered at the hands of the “TRNC” authorities sought to invoke remedies before the local courts, for example a claim for damages in respect of the demolition of the Gypsy shacks near Morphou. The Court does not accept the applicant Government's assertion that the unavailability of legal aid in the “TRNC” for the bringing of civil actions exonerated aggrieved individuals from the requirement to use domestic remedies. It notes that there is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants. What is important for the Court is the fact that it does not appear that any attempt has been made to take any legal proceedings whatsoever in respect of the matters alleged by the applicant Government.",
"353. The Court concludes that it has not been established that, during the period under consideration, there has been a violation as a matter of administrative practice of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention, including by reason of an alleged practice of failing to protect their rights under these Articles.",
"3. Alleged violation of Article 6 of the Convention",
"354. The applicant Government contended that the “TRNC” authorities, as a matter of law and practice, violated Article 6 of the Convention in that civil rights and obligations and criminal charges against persons could not be determined by an independent and impartial tribunal established by law within the meaning of that provision. The applicant Government reiterated in this connection their view as to the illegality of the context in which “TRNC” courts operated (see paragraphs 83-85 above).",
"355. The applicant Government further submitted that the “TRNC” authorities operated a system of military courts which had jurisdiction to try cases against civilians in respect of matters categorised as military offences. In their view it followed from the Court's Incal v. Turkey judgment of 9 June 1998 ( Reports 1998-IV) that a civilian tried before a military court was denied a fair hearing before an independent and impartial tribunal. The jurisdiction of the military courts in this respect was laid down in “Article 156 of the TRNC Constitution”, with the result that their composition could not be challenged. The applicant Government maintained that the Commission should have found a violation of Article 6 on account of the existence of a legislative practice of violation rather than concentrating on the issue as to whether there was evidence of any particular proceedings before military courts involving civilians. They further stressed that, contrary to the Commission's conclusion on this point, the evidence adduced before the Commission provided concrete examples of civilians having been tried and convicted before military courts. This evidence was regrettably overlooked in the Commission's assessment.",
"356. The Commission did not find it established on the facts that military courts tried any civilians during the period under consideration. On that account it concluded that there had been no violation of Article 6 of the Convention.",
"357. The Court considers that it does not have to be satisfied on the evidence that there was an administrative practice of trying civilians before military courts in the “TRNC”. It observes that the applicant Government complain about the existence of a legislative practice of violating Article 6, having regard to the clear terms of “Article 156 of the TRNC Constitution” and the “Prohibited Military Areas Decree” (see paragraph 355 above). It recalls in this connection that in its Ireland v. the United Kingdom judgment, the Court considered that, unlike individual applicants, a Contracting State was entitled to challenge under the Convention a law in abstracto having regard to the fact that former Article 24 (current Article 33) of the Convention enabled any Contracting State to refer to the Commission any alleged breach of the provisions of the Convention and the Protocols thereto by another Contracting State (see the above-mentioned Ireland v. the United Kingdom judgment, p. 91, § 240). In the same judgment the Court found that a “breach” within the meaning of former Article 24 (current Article 33) resulted from the mere existence of a law which introduced, directed or authorised measures incompatible with the rights and freedoms safeguarded. The Court further stated that a breach of this kind might only be found if the law challenged pursuant to former Article 24 (current Article 33) was couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision should be arrived at by reference to the manner in which the respondent State interpreted and applied in concreto the impugned text or texts (ibid.).",
"358. For the Court, examination in abstracto of the impugned “constitutional provision” and the “Prohibited Military Areas Decree” leads it to conclude that these texts clearly introduced and authorised the trial of civilians by military courts. It considers that there is no reason to doubt that these courts suffer from the same defects of independence and impartiality which were highlighted in its Incal v. Turkey judgment in respect of the system of National Security Courts established in Turkey by the respondent State (judgment cited above, pp. 1572-73, §§ 70-72), in particular the close structural links between the executive power and the military officers serving on the “TRNC” military courts. In the Court's view, civilians in the “TRNC” accused of acts characterised as military offences before such courts could legitimately fear that they lacked independence and impartiality.",
"359. For the above reasons the Court finds that there has been a violation of Article 6 of the Convention on account of the legislative practice of authorising the trial of civilians by military courts.",
"4. Alleged violation of Article 10 of the Convention",
"360. The applicant Government complained in the proceedings before the Commission that the right of Turkish Cypriots living in northern Cyprus to receive information was violated on account of a prohibition on the circulation of Greek-language newspapers. The applicant Government did not revert to this complaint in their memorial or at the public hearing.",
"361. The Commission found, with reference to a similar complaint raised in the context of the living conditions of the Karpas Greek Cypriots, that the alleged restrictions on the circulation of Greek-language newspapers in northern Cyprus had not been substantiated.",
"362. The Court agrees with the Commission's conclusion and notes that it is consistent with the finding reached on the evidence in connection with the alleged interference with Article 10 invoked with respect to the enclaved Greek-Cypriot population (see paragraphs 253-54 above).",
"363. The Court holds, accordingly, that no violation of Article 10 of the Convention has been established by virtue of alleged restrictions on the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press.",
"5. Alleged violation of Article 11 of the Convention",
"364. The applicant Government stated that, as a result of the “TRNC”'s general policy in the area of freedom of movement, there was an administrative practice of interference, dating from 1974, with the right of Turkish Cypriots living in the north to meet or foregather with Greek Cypriots and others in Cyprus, particularly in the United Nations buffer-zone and in the government-controlled area.",
"365. The applicant Government highlighted several instances of arbitrary restrictions being imposed on persons wishing to attend bi-communal meetings, including sports and music events. They drew attention to their claim that the respondent Government had themselves in their observations on the admissibility and merits of this complaint submitted evidence to the Commission of the administrative practice of imposing from 1994 through to 1996 continuing restrictions on the right of Turkish Cypriots to travel to the south. This period, they recalled, was the period under consideration.",
"366. The applicant Government acknowledged that the original complaint formulated to the Commission was framed in terms of an administrative practice of interference with the right of Turkish Cypriots living in the north to freedom of association. They requested the Court to examine also the complaint in the terms described above. As to the restrictions on the right to freedom of association, they contended that the evidence heard by the delegates clearly established a violation of this right. They further observed in support of this allegation that “Articles 12 and 71 of the TRNC Constitution” precluded the formation of associations to promote the interests of minorities. In their view, the existence of such a prohibition should in itself be considered a violation of Article 11 of the Convention.",
"367. The Commission observed that nothing was brought to its attention to the effect that during the period under consideration there had been attempts by Turkish Cypriots living in northern Cyprus to establish associations with Greek Cypriots in the northern or southern parts of Cyprus which were prevented by the authorities. On that account the Commission found the complaint to be unsubstantiated.",
"368. As to impediments to participation by Turkish Cypriots in bi-communal events, the Commission noted that, according to relevant United Nations documents, certain restrictions had been placed in the way of inter-communal meetings as from the second half of 1996. In the Commission's opinion, any complaint to that effect related to distinct facts which occurred after the date of the admissibility decision. For that reason a complaint could not be entertained.",
"369. The Court recalls that it has accepted the facts as established by the Commission (see paragraphs 339-40 above). It does not consider that, on the basis of the evidence before it, there was, during the period under consideration, an administrative practice of impeding all bi-communal contacts between Turkish Cypriots living in the north and Greek Cypriots in the south. The Court notes that the “TRNC” authorities took a much more rigorous approach to such contacts after the second half of 1996 and indeed prohibited them. However, and as noted by the Commission, alleged violations of Convention rights occurring during that period are outside the scope of the admissibility decision (see paragraph 368 above).",
"370. As to the alleged interference with the right of Turkish Cypriots living in the north to freedom of association, the Court observes that the Commission found on the evidence that the “TRNC” authorities had not made any attempt to intervene to prevent the creation of bi-communal organisations in the north of Cyprus. In the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of an administrative practice of violating a Convention right, the Court concludes that there has been no violation of Article 11 from this standpoint either.",
"371. The Court finds therefore that it has not been established that there has been a violation, as a matter of administrative practice, of the right to freedom of association or assembly under Article 11 of the Convention in respect of Turkish Cypriots living in northern Cyprus.",
"6. Alleged violation of Article 1 of Protocol No. 1",
"372. The applicant Government maintained in the proceedings before the Commission that there was a continuing violation of Article 1 of Protocol No. 1, firstly, on account of the failure of the “TRNC” authorities to allow Turkish Cypriots living in northern Cyprus to return to their property in the south and, secondly, as a result of the tolerance shown by the same authorities to acts of criminal damage to the property of Turkish Cypriots committed by private parties.",
"373. The applicant Government stated before the Court that, regarding the second complaint, the Commission wrongly concluded that it had not been established that there existed an administrative practice by the “TRNC” authorities of systematically condoning third-party interferences with the property of Turkish Cypriots. The applicant Government did not revert to the first complaint either in their memorial or at the hearing.",
"374. The Commission found that no cases were brought to its attention where during the period under consideration Turkish Cypriots living in northern Cyprus made attempts to access their property in the south and were prevented from doing so. The complaint was therefore rejected for want of substantiation. As to the alleged unlawful interference by private persons with the property of Turkish Cypriots living in northern Cyprus, the Commission considered, firstly, that sufficient remedies existed to secure redress against such interferences and, secondly, that it was not established that there existed an administrative practice of condoning the interferences.",
"375. The Court accepts the Commission's conclusion. It observes in the first place that the applicant Government have not improved the case they sought to make out before the Commission concerning the alleged obstacles placed by the “TRNC” authorities in the way of Turkish Cypriots who wished to return to their homes in the south. No further evidence has been adduced before the Court of Turkish Cypriots living in the north who, during the period under consideration, have been prevented from having access to their property in the south on account of the functioning of “TRNC” restrictions on the freedom of movement.",
"376. Secondly, and as to the alleged attacks by private parties on the property of Turkish Cypriots, the Court considers that the evidence relied on by the applicant Government does not bear out their claim that the “TRNC” authorities tolerate, encourage or in any way acquiesce in this form of criminality. The Court accepts on the evidence that it cannot be excluded that such incidents have occurred. However, that evidence does not substantiate the existence of an administrative practice of violation of Article 1 of Protocol No. 1.",
"377. In view of the above considerations, the Court concludes that it has not been established that there has been a violation of Article 1 of Protocol No. 1 by reason of the alleged administrative practice of violating that Article, including by reason of failure to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus.",
"7. Alleged violation of Article 13 of the Convention",
"378. The applicant Government challenged the Commission's finding that there had been no violation of Article 13 of the Convention by reason of failure to secure effective remedies to Turkish Cypriots living in northern Cyprus. The applicant Government reiterated their view (see paragraphs 83-85 above) that the legal remedies which were claimed to be available did not satisfy the basic requirements of Article 6 and, as a consequence, could not be considered to be “effective” within the meaning of Article 13.",
"379. Furthermore, the applicant Government reasserted their view (see paragraphs 336-37 above) that the Commission had erroneously relied on the “beyond reasonable doubt” standard in ascertaining whether there was an administrative practice of withholding legal remedies from certain groups of persons. Had it applied the correct standard, namely that of “substantial evidence”, it would have been compelled to reach a different conclusion.",
"380. For the above reasons the applicant Government requested the Court to depart from the Commission's finding and to rule that the respondent State, as a matter of law and practice, violated Article 13 by reason of its failure to provide an effective remedy before a national authority to the Gypsy community and political opponents of Turkey's policy in Cyprus.",
"381. The Commission considered that, generally speaking, the remedies provided by the “TRNC” legal system appeared sufficient to provide redress against any alleged violation of Convention rights in respect of the groups at issue and that the applicant Government had not substantiated their allegation concerning the existence of a practice of violating Article 13. It thus concluded that there had been no violation of Article 13 during the period under consideration.",
"382. The Court recalls that, as regards their allegations concerning political opponents (see paragraphs 342-44 above) and the Gypsy community (see paragraphs 349-50 above), it considered that the applicant Government had not succeeded in refuting the respondent Government's submissions in the proceedings before the Commission that remedies were available to aggrieved individuals within the “TRNC” legal system. The Court was not persuaded that any attempt to invoke a remedy was doomed to failure. On that account the Court could not accept the applicant Government's allegation that there was an administrative practice of denying remedies to individuals, in breach of Article 13 of the Convention. The evidence before the Court in this connection cannot be said to prove beyond reasonable doubt the existence of any such practice.",
"383. The Court concludes accordingly that no violation of Article 13 of the Convention has been established by reason of a failure as a matter of administrative practice to secure effective remedies to Turkish Cypriots living in northern Cyprus.",
"VIII. Alleged violations of Articles 1, 17, 18 and former Article 32 § 4 of the Convention",
"384. The applicant Government requested the Court to find violations of Articles 1, 17, 18 and former Article 32 § 4 of the Convention. Article 1 provides:",
"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”",
"Former Article 32 § 4 of the Convention provides:",
"“The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.”",
"385. The applicant Government contended that in view of the comprehensive and massive violations of the Convention committed by the respondent State, it would be appropriate in this case for the Court to find a violation of Article 1.",
"386. The applicant Government further submitted that the facts disclosed that the respondent State in reality controlled Greek-Cypriot property in the north in pursuance of a policy of ethnic cleansing. The respondent State's resettlement programme was also a clear manifestation of this policy. However, the respondent State sought to conceal its real aim with reference to the limitations on rights permitted under Article 8 § 2 or Article 1 of Protocol No. 1. The applicant Government submitted that the respondent State must be considered in the circumstances to have violated Articles 17 and 18 of the Convention.",
"387. The applicant Government finally submitted that the respondent State had failed to put an end to the violations of the Convention established in the Commission's 1976 report as requested in the Committee of Ministers' decision of 21 October 1977 (see paragraph 17 above). The applicant Government stated that the Court should note any continuing violations of the Convention which it found had continued after that decision. They also submitted that the Court should consider it to be a further aggravating factor that violations of the Convention had continued for more than twenty years and that the respondent State's official policy had directly resulted in violations after the Committee of Ministers' decision.",
"388. The Court considers that it is unnecessary in the circumstances to examine separately these complaints. It further recalls that, regarding the applicant Government's complaints under Articles 17 and 18, it reached the same conclusion in the context of similar allegations made with respect to alleged interferences with the rights of Greek-Cypriot displaced persons' property (see paragraph 206 above)."
] |
22 | Cyprus v. Turkey | 10 May 2001 (Grand Chamber – judgment on the merits) | The case related to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. Cyprus contended that, despite the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) in November 1983, that was an illegal entity under international law and therefore Turkey was the accountable State for a broad range of Convention violations there. Turkey argued that the “TRNC” was politically independent from Turkey and consequently Turkey could not be held responsible for its acts. | The Court stressed that Turkey’s responsibility under the Convention could not be confined to the acts of its own soldiers and officials operating in northern Cyprus but was also engaged by virtue of the acts of the local administration (“the TRNC”), which survived by virtue of Turkish military and other support. Turkey, therefore, had jurisdiction under the Convention. | Extra-territorial jurisdiction of States Parties to the European Convention on Human Rights | Military presence and political support | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The application concerns the murder on 15 January 2005 of Elmas, Zerrin and Eylül Güzelyurtlu, all Cypriot nationals of Turkish Cypriot origin.",
"7. The applicants are the family of the deceased. The first, second and third applicants are the children of Elmas and Zerrin Güzelyurtlu and the brother and sisters, respectively, of Eylül Güzelyurtlu. The fourth and fifth applicants are Zerrin Güzelyurtlu ’ s sisters, and the sixth and seventh applicants are her parents.",
"8. The first five applicants were born in 1978, 1976, 1980, 19 6 2 and 1956 respectively. The sixth and seventh applicants were both born in 1933. The first, fifth, sixth and seventh applicants live in the “TRNC”. The second, third and fourth applicants live in the United Kingdom.",
"A. The background facts and the murder of Elmas, Zerrin and Eylül Güzelyurtlu",
"9. Elmas Güzelyurtlu was a businessman and used to live with his wife Zerrin and daughter Eylül in the “TRNC”. In 2000, following the collapse of the bank that Elmas Güzelyurtlu owned, Elmas Güzelyurtlu fled to and settled in Larnaca, in the Cypriot-Government- controlled areas. His wife and daughter joined him in 2001. In 2003 they moved to the Ayios Dometios district of Nicosia.",
"10. On 15 January 2005 at about 8.00 a.m. on the Nicosia-Larnaca highway, near the Athiainou exit, a police officer spotted a black Lexus car parked on the hard shoulder. The engine was running, the left turn indicator light was flashing and the door of the front passenger seat was open.",
"11. Zerrin and Eylül Güzelyurtlu were found dead on the back seat of the car. Elmas Güzelyurtlu was lying dead at a distance of 1.5 metres from the car in a nearby ditch. All three were in pyjamas and slippers. Zerrin Güzelyurtlu had adhesive tape on her neck and two rolls of adhesive tape in her hands. Both Zerrin Güzelyurtlu and her daughter Eylül Güzelyurtlu had redness ( ερυθρότητα ) on the edges of their hands, which indicated that they had been tied with adhesive tape. They also had bruises on their shins which had been sustained in a struggle.",
"B. The investigation and the measures taken by the Cypriot authorities",
"12. The particulars of the investigation and the measures taken, as submitted by the Cypriot Government and as can be seen from the documents contained in the case file, may be summarised as follows.",
"13. The police officer who discovered the bodies informed Nicosia police headquarters. A number of police officers (some of them high- ranking ), arrived at about 8.35 a.m. at the crime scene, which had already been secured and sealed off.",
"14. A detailed on-the- spot investigation was immediately conducted by the police and a forensic pathologist. Photographs were taken and a video recording was made. Two bullets, two cartridge cases and a kitchen knife were found inside the car. A third cartridge case was found outside the car.",
"15. An investigation team consisting of eight officers was set up.",
"16. The car was taken away for further inspection.",
"17. At about 9.25 a.m. officers went to the victims ’ house in Ayios Dometios. The house was secured and sealed off. An investigation was carried out by the investigation team and a forensic pathologist. Photographs and fingerprints were taken and a video recording made at the scene. The investigation determined that the perpetrators of the murders had broken into the house through a window. A suction cup ( βεντούζα ) and pieces of adhesive tape were found outside the window. Adhesive tape was found in the victims ’ bedrooms, the living room and the car park. The security system had been switched off at 4.35 a.m. on that day and one of the cameras appeared to have been turned upwards at 4.29 a.m.",
"18. Numerous exhibits were collected from the scene of the crime and the victims ’ home. These were sent for forensic examination.",
"19. On the same day the victims ’ bodies were taken to the mortuary at Larnaca General Hospital for a post-mortem examination. Death certificates were issued.",
"20. On 16 January 2005 post-mortem examinations were carried out by a forensic pathologist. It was determined that each of the three victims had died of severe craniocerebral injury caused by a shot from a firearm at close range and that their deaths had been the result of a criminal act. Photographs were taken and a video recording made of the post-mortem examinations. A diary of action ( ημερολόγιο ενέργειας ) was kept by one of the police officers present during the post-mortem examinations, which recorded, inter alia, the actions and findings of the forensic pathologist.",
"21. The investigation included the tracing and questioning of numerous witnesses, searching the records of vehicles that had gone through the crossing points between north and south, and examining the security system of the victims ’ house and computer hard discs for relevant material concerning the movements of persons and vehicles near the house at the material time. The source of the suction cup and the adhesive tape was determined to be a shop in Kyrenia (in northern Cyprus).",
"22. From the evidence collected it appeared that on 15 January 2005, between 5.15 a.m. and 5.20 am, three shots had been heard from the area in which the car and the victims were found.",
"23. According to the witness statements taken by the police, at the time the murders were committed a BMW car without number plates was seen parked behind the victims ’ car. Four persons were seen standing around the cars and one person was seen in the passenger ’ s seat of the Lexus car. It was further ascertained that on 14 January 2005, at 11.00 p.m., a red BMW car with “TRNC” number plates had passed through the Pergamos crossing point located in the British Eastern Sovereign Base Area of Dhekelia but without passing through the Base Area ’ s checkpoint. At 5.45 a.m. the next day the same car had returned to the “TRNC” through the same crossing point – again without being checked. The driver of the car, who resided in the “TRNC”, had been accompanied by another person.",
"24. From the evidence gathered, it was determined that the victims had been kidnapped at 4.41 a.m. on 15 January 2005 and had been murdered between 5.15 and 5.20 a.m.",
"25. According to the relevant police reports, five vehicles and more than eight people were involved in the murder; a fact which pointed to a well-planned and premeditated crime.",
"26. A ballistics examination established that the bullets had been fired from the same handgun; two of the cartridge cases had been of Romanian manufacture and one of Turkish manufacture.",
"27. The initial investigation resulted in the identification of five suspects: M.C. (“the first suspect”), E.F. (“the second suspect”), F.M. (“the third suspect”), M.M. (“the fourth suspect”) and H.O. (“ the fifth suspect ”). It appears from the documents submitted to the Court that the first, second, third and fourth suspects were Cypriot nationals and “TRNC” citizens and that the fifth suspect was a Turkish national.",
"28. DNA belonging to the first, second and fourth suspects was found on exhibits taken from the crime scene and the victims ’ house. DNA belonging to the first suspect was found on the steering wheel of Elmas Güzelyurtlu ’ s car. The police authorities already had DNA from these three suspects as they had taken genetic material from all of them in the past in connection with other offences (unlawful possession of a firearm and burglary). Moreover, the BMW car was found to be registered in the name of the fourth suspect and to have been driven by the first suspect.",
"29. Arrest warrants had already been issued in respect of these three suspects with regard to other offences; the first suspect was wanted in relation to a drugs case and for obtaining a passport and identity card issued by the Republic of Cyprus under false pretences; the second suspect was wanted for the unlawful possession and transfer of a firearm, and the fourth suspect was wanted for the unlawful possession of a firearm.",
"30. The other two suspects were linked to the murder through other evidence. DNA belonging to two unidentified persons was also found.",
"31. On 20 January 2005 the Larnaca District Court issued arrest warrants in respect of all five suspects on the ground that there was a reasonable suspicion that they had committed the offences of premeditated murder, conspiracy to murder, abducting ( απαγωγή ) a person in order to commit murder (sections 203, 204, 217 and 249 of the Criminal Code, Cap. 154), and the illegal transfer of a category B firearm (sections 4(1) and 51 of the Firearms and Other Arms Law (Law 113/(I)/2004, as amended).",
"32. On 21 January 2005 the police authorities sent “stop list” messages to the immigration authorities (that is to say messages asking them to add the suspects to their “ stop list ” – a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring) and to notify the police should they attempt to leave the Republic.",
"33. On 23 January 2005 the police submitted “ Red Notice ” requests to Interpol to search for and arrest the suspects with a view to their extradition.",
"34. On 24 January 2005 an official request was made by the Director of the Diplomatic Office of the President of the Republic to the Special Representative and Chief of Mission (“ the Special Representative”) of the United Nations Peacekeeping Force in Cyprus (“UNFICYP”) to facilitate the handing over to the appropriate authorities of the Republic of Cyprus of all the suspects and all evidential material relating to the crime and /or suspects in northern Cyprus ( see paragraph 129 below ).",
"35. On 26 January 2005 Red Notices were published by Interpol in respect of the first four suspects and on 28 January 2005 in respect of the fifth suspect. These sought the provisional arrest of the suspects and stated that extradition would be requested from any country with which the Republic of Cyprus was linked by a bilateral extradition treaty, an extradition convention or any another convention or treaty containing provisions on extradition.",
"36. As the police authorities were not able to trace the suspects in the areas controlled by the Republic, on 27 January 2005 they applied for the issuance of European arrest warrants. On the same day the Larnaca District Court issued European arrest warrants in respect of all five suspects.",
"37. As the investigation continued, another three suspects were identified: A.F. (“the sixth suspect”), S.Y. (“the seventh suspect”) and Z.E. (“the eighth suspect”). It appears from the documents submitted to the Court that the sixth and eighth suspects were Cypriot nationals and “TRNC” citizens and that the seventh suspect was a Turkish national. The sixth suspect had been wanted by the authorities since 2003 in respect of a case involving an assault causing serious bodily harm. The relevant case file had been classified as “ otherwise disposed of ” ( Άλλως Διατεθείσα ) in 2004.",
"38. On 4 February 2005 the Larnaca District Court issued arrest warrants against all three suspects on the same grounds as those issued in respect of the other suspects (see paragraph 31 above).",
"39. On 10 February 2005 the same court issued European arrest warrants against them.",
"40. On 11 February 2005, at the request of the Cypriot authorities, Red Notices were published in respect of the latter three suspects.",
"41. On 14 February 2005 a message was sent by Interpol Ankara to Interpol Athens in response to the Red Notice in respect of the fifth suspect. This message stated that the fifth suspect was in police custody and that the Turkish Ministry of Justice had been informed of the crime that he had allegedly committed. They also noted that under the Turkish Criminal Code, a Turkish national who had committed a crime in a foreign country which was punishable with at least three years ’ imprisonment under Turkish law could be punished under Turkish law. Furthermore, pursuant to domestic law, it was not possible to extradite a Turkish citizen from Turkey. Consequently, the Ministry of Justice wanted to know if it was possible for the investigation documents to be sent to them via Interpol channels.",
"42. On 15 February 2005 the police authorities transmitted “ stop list ” messages to the immigration authorities (see paragraph 32 above).",
"43. As can be seen from an email dated 7 March 2005 from the Director of the Diplomatic Office of the President of the Republic to the Chief European Union negotiator for Cyprus, the Cypriot authorities around this time forwarded to UNFICYP an interim report by the Laboratory of Forensic Genetics of the Cyprus Institute of Neurology and Genetics in order to facilitate its mediation of the handing over of the suspects in the instant case. The European Commission was asked for any assistance that it might be in a position to provide in bringing the perpetrators of the murders to justice. According to an internal note of a telephone conversation the Diplomatic Office was subsequently informed by UNFICYP that the above - mentioned report had been passed on to the “TRNC” authorities, who had found the evidence that it contained to be insufficient. The “TRNC” authorities requested video tapes but did not clarify whether the suspects would be handed over if such tapes were given to them.",
"44. The Government submitted that as the investigation had progressed more evidence had been collected implicating the suspects. More than 180 statements had been taken from various persons, including the relatives of the victims, persons who knew or had connections with the victims, and persons involved in the investigation. The authorities had also carried out DNA tests on a number of other possible suspects but no link to the crime had been found. The applicants ’ representatives had also met and had been in telephone contact with the Attorney-General.",
"45. On 12 July 2006 the eighth suspect was arrested by Cypriot police in Limassol ( in the Government - controlled area ). The next day he was remanded in custody for eight days by order of the Larnaca District Court on the ground that there was reasonable suspicion that he had committed offences under sections 203, 204, 217 and 249 of the Criminal Code ( Cap. 154 ) and sections 4(1) and 51 of the Firearms and Other Arms Act (Law 113 /( I)/2004, as amended). He was released, however, upon the expiry of the remand period as the authorities, after questioning him, did not have enough evidence to link him to the offences. According to the relevant police report, some of the allegations he had made could not be looked into as the Cypriot police could not conduct investigations in the “TRNC”. Furthermore, DNA tests did not link him to the crime.",
"46. In a letter dated 26 July 2006 the Attorney-General assured the applicants ’ representatives that the Republic was “doing everything within its power – bearing in mind that it [did] not have effective control over the areas of the Republic occupied by Turkey ( in which persons that might be involved [ were at that time] and taking into account the relevant Convention case-law – to investigate the ... murder and bring the persons responsible to trial before the Courts of the Republic”. He also informed them that he would keep them informed of the progress of the investigation and reply to the queries that they had submitted on behalf of the victims ’ family and that this could be achieved through meetings at his office between him, the applicants ’ representatives and the police.",
"47. A report by the Larnaca police investigation department dated 1 July 2007 stated that the investigation had been extended to the British bases and the occupied areas of Kyrenia and Karavas. It also stated that the investigation was still ongoing as the authorities were waiting for replies from Interpol Ankara. The report also proposed that the officers in the investigation team be commended for their outstanding work on the case.",
"48. As the authorities were not able to execute the arrest warrants in the “TRNC” or undertake other steps through UNFICYP, and given that the issuance of international arrest warrants had not resulted in the suspects ’ surrender by Turkey, the police officer in charge of the investigation suggested in a report dated 30 March 2008 that the case be “ otherwise disposed of ” ( Άλλως Διατεθείσα ) pending future developments.",
"49. On 7 April 2008 the case file was sent, along with the above -mentioned proposal by the Larnaca police investigation department, to the Attorney-General. The latter agreed with the Larnaca police investigation department ’ s proposal and on 24 April 2008 instructed the police to re - submit ( εναποβληθεί ) the investigation file if and when the arrest of all or any of the suspects was effected.",
"50. On 19 May 2008 the case file were transferred to the coroner for the inquest proceedings (inquest nos. 9 /05, 10 /05 11/05) before the Larnaca District Court. The proceedings were scheduled by the court for 18 August 2009. According to the Cypriot Government, on that date the proceedings were adjourned until October 2009 due to the non-attendance of the first applicant. The first applicant was notified by the officer in charge of the investigation of the inquest proceedings and was requested to attend, as the testimony of a relative of the victims was necessary. No further information has been provided about these proceedings by the Cypriot Government.",
"51. In a letter dated 25 June 2008 to the Chief of Police, the Attorney-General noted that, despite all efforts on the part of the authorities, the suspects had not been handed over to the Republic, that he had spoken to the President of the Republic and that he had had repeated meetings and telephone conversations with the applicants ’ counsel. The Attorney-General noted that the latter had informed him of the applicants ’ intention to lodge an application with the Court. The Attorney-General therefore considered that it was necessary – and counsel agreed – that international arrest warrants be issued in respect of the suspects and that Turkey – who had, pursuant to the Court ’ s judgments, responsibility for whatever occurred in the occupied areas – be requested to enforce them. He requested that, if this had not been done already, international arrest warrants be issued as quickly as possible for the surrender of the suspects to the Republic of Cyprus.",
"52. On 3 August 2008 the fourth suspect was murdered in the “TRNC”. Following confirmation of his death by UNFICYP and pursuant to instructions by the Attorney-General, the arrest warrant in respect of him was cancelled by the Larnaca District Court on 29 August 2008.",
"53. On 6 August 2008 the Attorney-General gave instructions for the preparation of extradition requests to Turkey under the European Convention on Extradition of 13 December 1957, to which both States were parties (see paragraphs 164 and 165 below).",
"54. On 23 September 2008, extradition requests in respect of the six remaining suspects (see paragraphs 45 and 52 above), together with certified translations of all documents into Turkish, were transmitted by the Cypriot Ministry of Justice and Public Order to the Cypriot Ministry of Foreign Affairs for communication through diplomatic channels to Turkey ’ s Ministry of Justice. The requests were then sent to the Republic ’ s embassy in Athens for communication to Turkey.",
"55. By a letter dated 4 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date the extradition requests and a note verbale from the Cypriot Ministry of Justice and Public Order and had been delivered to the Turkish embassy in Athens in a sealed envelope. The usher of the embassy had given the envelope to the embassy security guard. No receipt of delivery had been given.",
"56. By a letter dated 11 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date an employee of the Turkish embassy had left an envelope with the Cypriot embassy ’ s security guard on which only the address of the Cypriot embassy had been written and which had contained the extradition requests and the note verbale from the Cypriot Ministry of Justice and Public Order, which had been given to the Turkish embassy on 4 November 2008. The person had not stated his identity, but had simply had left ( παράτησε ) the envelope and departed in haste.",
"57. By a letter dated 24 November 2008 the Director General of the Cypriot Ministry of Justice informed the Attorney-General of the return of all the above-mentioned documents and stated that it was clear that Turkey was refusing to receive requests for the extradition of fugitives made by Cyprus under the European Convention of Extradition, due to Turkey ’ s refusal to recognise the Republic of Cyprus as a State.",
"58. In his reply dated 26 November 2008 the Attorney-General stated that the conduct of Turkey towards the Republic of Cyprus was not that expected of a State which had countersigned the European Convention on Extradition. It was not, however, for the Office of the Attorney-General to decide on the measures to be taken but it was an issue to be taken up on a political level, by the Cypriot Ministry of Foreign Affairs in particular.",
"59. The Cypriot Government submitted that the domestic arrest warrants were still in force and would remain in force until executed pursuant to section 21 (1) of the Criminal Procedure Law.",
"C. The investigation and measures taken by the Turkish, including the “TRNC”, authorities",
"60. The particulars of the investigation and measures, according to the submission of the Turkish Government and as can be seen from the documents they provided, may be summarised as follows.",
"61. On 17 January 2005 the victims ’ bodies were taken to the Dr. Burhan Nalbantoğlu State Hospital in Nicosia (“Lefkoşa”) for post-mortem examinations. The “TRNC” police were provided with the death certificates, which had been issued by the Republic of Cyprus.",
"62. Given that the cause of death required that a coroner ’ s inquest be held, the “TRNC” police sought a court order for post-mortem examinations.",
"63. Following a hearing before the “TRNC” Nicosia District Court, the “TRNC” Attorney-General ’ s office requested the court to waive the requirement for post-mortem examinations, as post- mortem examinations had already been carried out in the Republic of Cyprus. Having heard evidence from two police officers and the hospital ’ s forensic pathologist the court decided that post-mortem examinations were not required.",
"64. On 18 January 2005 the first applicant gave a statement to the “TRNC” police. His views were requested concerning potential suspects. In his statement he alleged that there were five likely suspects : M.C, E.F., F.M., M.M. and H.O. ( see paragraph 27 above ). The “TRNC” authorities checked the entry and exit records of the suspects and established that the first suspect had crossed to the Republic of Cyprus side on the night of the murders and had returned to the “TRNC” side in the early morning hours. There was no record of the entry and exit of the other suspects on that day.",
"65. On 18 January 2005 the first suspect was taken to Kyrenia (“ Girne ”) police headquarters ( Polis Genel Müdürlüǧü ) for questioning by the “TRNC” police. The BMW car he had used to cross the border was seized as evidence. The Kyrenia District Court issued a summons on the same day in respect of both the first and second suspects for the purpose of bringing them before the court on suspicion of theft, vehicle importation and forgery of documents ( Hirsizlik Araç Ithali ve Evrak Sahteleme ). The first suspect was kept in detention.",
"66. The first suspect ’ s BMW car was inspected, but no evidence was found.",
"67. On the same day (that is to say 18 January 2005) the third and fourth suspects were also taken for questioning by police. An arrest warrant was issued in respect of the third and fourth suspects by the Morphou (“ Güzelyurt ”) District Court on the same day on suspicion of forgery of documents – specifically, providing fake registered vehicle with falsified documents and statements ( Sahte Belge Düzenleme –Yalan Belge ve Beyanlarla Sahte Kayitla Araç Temin Etme ).",
"68. On 19 January 2005 an arrest warrant was issued in respect of the first and second suspects by the Kyrenia District Court for two days ( Mahkeme: Zanlilarin 2 gün tutuklu kalmasina emir venir ) on suspicion of theft, forgery of documents and “providing fake registry records, etc. ” ( Hirsizlik, Sahte Belge Düzenlemek, Sahte Kayut Temin Etmek v.s. ).",
"69. The second suspect was arrested the next day and was detained at Lapithos (“ Lapta ”) police headquarters.",
"70. The fifth suspect had already left for Turkey ( on 18 January 2005 ) when the Red Notice was published by Interpol on 28 January 2005 (see paragraph 35 above).",
"71. On 19 January 2005 the “TRNC” Nicosia District Court also remanded the third and fourth suspects in custody for two days on suspicion of theft and forgery of documents.",
"72. The “TRNC” police searched the houses of the first four suspects, as well as that of another person, on the basis of search warrants issued by the Morphou District Court on 18 January 2005 ( in respect of the third and fourth suspects) and by the Kyrenia District Court on 19 January 2005 (in respect of the first and second suspects). No evidence was found.",
"73. Statements were taken from the four suspects while they were in detention. They all denied involvement in the murders. The “TRNC” police also took statements from a number of other persons, including public servants, mainly in relation to the BMW car that the first applicant had alleged had been used by the murderers. According to the evidence collected, the BMW car had been transferred to the first suspect on 17 May 2004.",
"74. On 21 January 2005, following an application by the “TRNC” police, the “TRNC” Nicosia District Court remanded the first four suspects in custody for a further three days on suspicion of premeditated murder.",
"75. On 22 January 2005 the “TRNC” Nicosia District Court issued a summons in respect of the fifth suspect for the purpose of bringing him before the court on suspicion of premeditated murder. “TRNC” Nicosia police headquarters informed all other district police offices that they were searching for this suspect and that a warrant had been issued.",
"76. On different dates statements were taken from a number of persons, including the first applicant, with a view to obtaining information concerning the fifth suspect.",
"77. On 23 January 2005 the fifth suspect was arrested as, in the meantime, he had returned to the “TRNC” (see paragraph 75 above).",
"78. On 24 January 2005 the first four suspects were remanded in custody for another three days by the “TRNC” Nicosia District Court on suspicion of premeditated murder, murder, and possession of an illegal firearm and explosives ( Taamüden Adam Öldürme, Adam Öldürme, Kanunsuz Ateşli Silah ve Patlayici Madde Tasarrufu ). An arrest warrant was also issued by that court in respect of the fifth suspect in order that he might be remanded in custody for three days.",
"79. On 25 January 2005 “TNRC” Nicosia police headquarters were informed by the Turkish Ministry of Internal Affairs that a Red Notice had been published by Interpol in relation to the first four suspects. The above - mentioned Ministry requested confirmation of Elmas Güzelyurtlu ’ s death as the Turkish authorities had been looking for him in order to extradite him to the “TRNC”. They also enquired about the nationality status of the first four suspects, in particular, whether or not they had Turkish nationality.",
"80. The Turkish Government submitted that on 23 and 28 January 2005 the Turkish Ministry of Internal Affairs received emails from Greek Cypriot Interpol stating that they were searching for the first, second, third and fifth suspects with a view to their arrest and that they should be arrested if they entered into Turkey.",
"81. On 27 January 2005 the first, second, third, fourth and fifth suspects were remanded in custody for another five days by the “TRNC” Nicosia District Court on suspicion of premeditated murder.",
"82. On the same day the “TRNC” Nicosia District Court issued a warrant in respect of the sixth and seventh suspects ( see paragraph 37 above) for the purpose of bringing them before the court on suspicion of premeditated murder. Search warrants were also issued by the Kyrenia District Court in respect of the house of the fifth suspect and by the Nicosia District Court in respect of the houses of the sixth and seventh suspects.",
"83. By a letter dated 27 January 2005 “TRNC” Nicosia police headquarters provided the Turkish Ministry of Internal Affairs with information about the suspects ’ identities.",
"84. On 28 January 2005 the “TRNC” Nicosia District Court remanded the sixth, seventh and eighth suspects (see paragraph 37 above) in custody for three days on suspicion of premeditated murder. It also issued a search warrant for the house of the eighth suspect.",
"85. On the same date the “TRNC” police also took a statement from the fifth suspect.",
"86. On 31 January 2005 the sixth, seventh and eighth suspects ’ detention was extended by a further eight days by the “TRNC” Nicosia District Court on suspicion of premeditated murder.",
"87. On the same day “TRNC” Nicosia police headquarters requested further information from the Turkish Ministry of Internal Affairs about the criminal record of the fifth suspect. They were provided with his criminal record, photograph and fingerprints on 7 February 2005.",
"88. On 1 February 2005 the “TRNC” Nicosia District Court extended the first five suspects ’ detention for seven further days on suspicion of premeditated murder.",
"89. On 2 February 2005 “TRNC” Nicosia police headquarters published a notice to all branches of police informing them that they were also looking for another person, M.K., who they also considered to be a suspect in the case. It transpired that this suspect had left for Turkey on 19 January 2005.",
"90. On 7 February 2005 “TRNC” Nicosia police headquarters requested the Turkish Ministry of Internal Affairs police headquarters to carry out a criminal record check on M.K. and to inform them whether he was in Turkey or not.",
"91. On 8 February 2005 the “TRNC” police took statements from the first, second, third, fifth, sixth and eighth suspects. An additional statement was taken on 11 February 2005 from the fifth suspect. They all denied involvement in the murders.",
"92. On or around 11 February 2005 all the suspects were released due to a lack of evidence connecting them to the crime.",
"93. The Turkish Government submitted that on 11 February 2005 another email was sent to the Turkish Ministry of Internal Affairs by Greek Cypriot Interpol informing them that they had information that the fifth suspect was going to travel to Mersin in Turkey the same day and requesting the Turkish authorities to take the necessary measures.",
"94. The fifth suspect was arrested on the above date as he was entering Mersin. On 15 February 2005 he was taken to the office of the Mersin public prosecutor, where a preliminary file was opened in respect of the murders and he was questioned by the public prosecutor. The Turkish Government submitted that he was released in the absence of any evidence connecting him to the crime in question and in the absence of an extradition request.",
"95. M.K. (see paragraph 89 above) was also traced and on 25 March 2005 he was questioned by police at Kyrenia police headquarters. He denied any involvement in the murders.",
"96. On 15 April 2006 the authorities investigated a well in the village of Myrtou (“ Çamlibel”) in the Kyrenia district for evidence. Nothing, however, was found.",
"97. Throughout the investigation the “TRNC” police questioned and took statements from numerous persons who knew or were somehow connected or related to the suspects. As can be seen from a document in the internal police files entitled “Time/Work Sheet” ( İş Cetveli ) and the copies of the statements provided, statements were taken from various witnesses, including the suspects. They also searched for evidence and took fingerprints.",
"98. According to a note/direction in the “ Time/Work Sheet ”, on 30 January 2006 the “TRNC” Police Chief Inspector (Başmüfettiş - Tahkikat Memuru) wrote to the “TRNC” Nicosia Judicial Police Director – Assistant Police Director (“ Polis Müdürü Müavini – Adli Polis Müdürü”) that upon the oral instructions of the “TRNC” Attorney-General (Başsavcı) a copy of the file in respect of the murder of Elmas, Zerrin and Eylül Güzelyurtlu had been prepared and would be submitted for the opinion of the “TRNC” Attorney-General. A note bearing the same date from the “TRNC” Nicosia Judicial Police Director informed the “TRNC” Attorney-General ’ s Office that the file regarding the case was ready and had been submitted to the “TRNC” Attorney-General.",
"99. The Turkish Government submitted that, following a report by the “TRNC” Police Chief Inspector, the case had been classified as “non- resolved”. They provided a copy of this report, which was not dated. According to this report, the last action undertaken as part of the investigation appears to have occurred on 22 March 2007, when the fifth suspect ’ s car, which had been inspected by the “TRNC” police, had been handed over to the “TRNC” Nicosia Customs and Tax Office ( Lefkoşa Gümrük ve Rüsumat Dairesi ). The inspection had not resulted in the collection of any evidence concerning the crime. In his report the “TRNC” Police Chief Inspector concluded that on the basis of the investigation that the police had conducted from the date of the murders until the time of his writing the report the police had not been able to resolve the case. He therefore suggested that the case be logged as “ non-resolved for the time being ”.",
"100. On 19 August 2009 the “TRNC” Attorney-General ’ s office sent a copy of the case file to the “TRNC” Ministry of Foreign Affairs. They informed the latter that the case had been classified as “ non-resolved for the time being ” on the instructions of the previous “TRNC” Attorney-General.",
"101. The Turkish Government submitted that the case file was with the “TRNC” Attorney-General and remained open pending the submission of evidence by the Republic of Cyprus authorities.",
"102. The Turkish Government submitted that after they received the investigation file from the Cypriot Government through the Court following communication of the case, the “TRNC” police questioned again the first and second suspects on 24 February 2010. The suspects denied their involvement in the killings.",
"103. Subsequently, in other proceedings, on 31 August 2010 the Kyrenia Assize Court found the first and second suspects guilty of, inter alia, the murder of the first applicant ’ s bodyguard and passed sentences amounting to thirty years ’ imprisonment each. An appeal by the first and second suspects was dismissed by the “TRNC” Supreme Court on 4 January 2012. They are both currently serving their sentences.",
"104. The Turkish Government submitted that in the context of those proceedings, the first suspect had written on a piece of paper that the second suspect had killed three people. In addition, after being cautioned by the Kyrenia Assize Court that if he made a self-incriminating statement under oath it could be used against him, the second suspect stated : “I saw this Güzelyurtlu incident personally myself. This is what I want to say. There is also one thing, that is what he told me, ... I did not see it, it is what he explained to me. At this stage, I do not want to talk about the Güzelyurtlu murder, your honour ”. In its judgment the Kyrenia Assize Court noted that it had to examine the voluntary statements made before it more carefully in the light of the fact that the first suspect had retracted the statements and submitted different statements. The first suspect refused to give any statement to the police.",
"105. Following the above -mentioned development, the “TRNC” Attorney-General reviewed the investigation file. Taking into account the rules of evidence, he concluded that even if the first suspect had not retracted his statement, in the absence of other evidence, this statement would not have been sufficient for any charges against the suspects to be brought.",
"D. Information submitted by the applicants",
"1. Information derived from the first applicant ’ s statements to his lawyers",
"106. In a summary of the first applicant ’ s statements to his lawyers between 2006 and 2007, the first applicant stated, inter alia, the following:",
"107. On the morning of 15 January 2005 the Cypriot police informed the first applicant of the death of his parents and sister. He went to Larnaca morgue to identify the victims. He signed a form authorising police officers to enter the family home in Ayios Dometios and conduct an investigation. The first applicant was present for part of the investigation and then went with the police to his father ’ s office in Nicosia, where the police took documents as part of the investigation.",
"108. The next day the first applicant went to Larnaca morgue and then Larnaca police station, where he spent nine hours giving a statement. In his statement he informed the police of the identities of the persons he suspected of committing the murders and the grounds for his suspicions.",
"109. On 17 January 2005 the first applicant took the victims ’ bodies back to the “TRNC”, where a funeral was held.",
"110. On 18 January 2005 the first applicant had meetings with the “TRNC” police.",
"111. On 19 January 2005 the first, second and fourth applicants went to Nicosia police headquarters, where they were shown pictures and sketches of a number of people and asked whether they recognised them. Some of the photos had been taken at the funeral. The first applicant identified one of the suspects. The next day they returned to Nicosia police headquarters and were informed that the Cypriot police had DNA matches for at least three of the suspects and had found other DNA which they could not, however, match to any person in their records. The first applicant also gave them information concerning the investigation by the “TRNC” police.",
"112. During the two weeks following the killings the first applicant met often with the Cypriot and the “TRNC” police and was informed by both sides of their respective investigations. He also updated each side on the other side ’ s progress in an effort to prevent the suspects ’ release for lack of evidence and to convince the “TRNC” police to surrender them to the Cypriot Government for trial.",
"113. The first applicant had meetings with a number of “TRNC” high - ranking officials.",
"114. In March 2007 the Cypriot police informed the first applicant that the car and the material removed from the victims ’ home and office could be returned. They also informed the first applicant of the circumstances of the killings, that the investigation remained open and that the evidence had been shown to UNFICYP but that the “TRNC” authorities refused to cooperate. Although the Cypriot police showed the first applicant copies of the Red Notices and witness statements, they refused to give him copies. They also informed him that only a court could take possession of the case file ( at the appropriate time ).",
"2. Other information submitted by the applicants",
"115. The applicants ’ representatives had meetings about the case with the Attorney-General of the Republic of Cyprus in January 2006 and July 2006.",
"116. Furthermore, on 1 February 2006, at a meeting at Nicosia Police Headquarters, the applicants ’ lawyers were informed that one of the suspects had been briefly detained in Turkey. The Cypriot police had received this information from the office of Interpol in Athens.",
"117. On 15 March 2006 the applicants, upon their request, were given a progress report by the Cypriot police on the case. The applicants submitted that they had requested all the evidentiary material but this was not provided with the report.",
"118. On 15 July 2007 there was an attempt to kill the first applicant at his home in the “TRNC”. During that month the applicants were also informed by the Cypriot police that the arrest warrant in respect of one of the suspects had been cancelled.",
"119. In May 2009 the first applicant ’ s bodyguard was murdered.",
"120. With regard to the inquest, the applicants submitted that the Larnaca District Court had adjourned the inquest on 19 August 2009 for administrative reasons and not because of the first applicant ’ s absence. The court had resumed the inquest proceedings on 14 and again on 20 October 2009. Three of the applicants had attended with their counsel and a local lawyer. The inquest had confined itself to investigating whether the deaths had been the result of an unlawful killing. The judge had referred the matter to the Attorney-General as she was functus officio in so far as the criminal proceedings were concerned.",
"3. Correspondence",
"121. The applicants, through their representatives, sent a number of letters to various Cypriot, Turkish and “TRNC” high - ranking officials about the case, including the President of the Republic of Cyprus, the Prime Minister of Turkey and the President of the “TRNC”.",
"122. In a letter dated 30 November 2006 the applicants ’ counsel informed the Prime Minister of Turkey about the case and all the steps that had been taken until that date. They informed him, inter alia, that the Government of Cyprus had stated that they were prepared to hand over the relevant evidence to UNFICYP in order for the latter to decide whether there was a prima facie case against the suspects with the proviso that if UNFICYP concluded that there was indeed such a case, the “TRNC” would undertake to surrender the suspects. As UNFICYP was not prepared to take on this task (see paragraph 149 below) and the “TRNC” insisted on making a decision only after receiving the evidence, the applicants ’ counsel stated that “I believe that I have now exhausted the possibilities for reaching the desired compromise through negotiation and mediation”.",
"E. Involvement of the United Nations",
"123. Following the murders the Cypriot Government, the “TRNC” authorities and the applicants were in contact with UNFICYP officials concerning the case. A number of meetings were held. There was also an exchange of telephone calls and correspondence. The relevant information provided by the parties is set out below.",
"1. Information submitted by the Cypriot Government",
"(a) Internal note dated 20 January 2005",
"124. According to this note, the Cypriot authorities made contact with UNFICYP ’ s Special Representative to see whether UNFICYP could assist. They informed UNFICYP that they intended to carry out a complete investigation into the crime and that the police were working intensively to gather information and evidence. Some of this, however, would have to be collected from the occupied areas. UNFICYP ’ s Special Representative said that UNFICYP was ready to provide help but suggested, acknowledging the difficulties, that it might be better for the two sides to be in direct contact with each other and to exchange information. The Cypriot authorities had informed him that this was not possible as the Cypriot police could not have direct contact with the “TRNC” police and that it was for this reason they had sought UNFICYP ’ s intervention.",
"(b ) Internal note by the Cypriot police dated 21 January 2005",
"125. According to this note, a meeting was held on that day at UNFICYP headquarters in Nicosia on the initiative of UNFICYP ’ s Senior Police Adviser and Commander (“ the SPA”) between the SPA and the assistant of the Cypriot Chief of Police. The UNFICYP ’ s liaison officer was also present. The SPA stated that she had had, on the same day, a long meeting concerning the murders with the “TRNC” Chief of Police in the presence of other officers and the “TRNC” Attorney-General. She had informed the “TRNC” Chief of Police that the Cypriot police had in their possession genetic material linking three of the suspects with the crime ( although she was not in a position at that time to tell them who these suspects were ), as well as other evidence linking another two persons to the crime, and that one of the cartridges found at the scene had been made in Turkey. She had also informed him that five arrest warrants had been issued by a Cypriot court against the suspects, four of whom were detained in “TRNC” prisons. She had expressed her concerns that if the suspects were released they might leave the “TRNC” and their future arrest would not be possible. The “TRNC” Chief of Police had informed her that these suspects had been detained for minor offences (car theft) and that it was possible that their detention would not be extended by the judge. Although the “TRNC” authorities would try to get their detention extended, they had no evidence to charge them with murder. Although the suspects had already been questioned about the murders and had given some information, this was not enough. No voluntary statements had been made. The “TRNC” Chief of Police had also told her that he was aware that the Cypriot police did not have enough evidence and that only if the two police forces cooperated could more evidence be collected. He had also asked her if, and how, UNFICYP could help; she had informed him that UNFICYP could only intervene if one of the two sides made an official request for help.",
"126. The “TRNC” Chief of Police had expressed his concerns in respect of the problems that had arisen and might also arise in the future and considered it advisable that the two police forces come to an agreement to enable cooperation in such cases. The “TRNC ” Minister of Foreign Affairs was ready to discuss matters of policing and public safety with the Minister of Foreign Affairs of Cyprus and other members of the Cypriot police in order to facilitate cooperation without any political ramifications ( προεκτάσεις ).",
"127. UNFICYP ’ s liaison officer had asked if there was a possibility that Turkey could be involved, so that the suspects could be extradited to Turkey and from there to the Republic of Cyprus. The “TRNC” Chief of Police had answered in the negative; it appeared that the “TRNC” authorities had already examined the matter but could not take such action as it was not provided for by their legislation. The “TRNC” Chief of Police had suggested that the Cypriot police hand over the evidence to the “TRNC” police so that the latter could arrest and try the suspects. If the Cypriot police informed their authorities officially about the evidence and exhibits in respect of the case and officially requested the extradition of the suspects, the “TRNC” authorities could cooperate and possibly extradite them. One of the suspects was in Turkey but appeared not to be connected to the murders. The “TRNC” authorities also had information in their possession linking other persons to the murders.",
"128. According to the SPA the “TRNC” authorities were sincere and wished to cooperate. They had mentioned, inter alia, their concerns that there could be more crimes of this nature – that is to say criminals going through crossing points, committing crimes and then returning to the other side in order to avoid arrest and punishment. UNFICYP was ready to provide advice as to how the Cypriot Government should act and to sit in any negotiations in order to see how UNFICYP could intervene so as to help investigate ( εξιχνιαστει ) the murders. The SPA had asked the Cypriot authorities whether Interpol could intervene as she considered it unfair that, although the perpetrators of an atrocious crime had been identified, they remained free because of a political problem. The “TRNC” police had requested to be kept informed by the United Nations (UN) of developments in the case and she had promised that they would be.",
"(c ) Letter dated 24 January 2005 from the Diplomatic Office of the President of the Republic to the SPA",
"129. This letter reaffirmed the Cypriot Government ’ s determination to bring the suspects to justice. The Cypriot authorities had collected sufficient evidence, issued arrest warrants for five suspects and requested UNFICYP to facilitate the handing over of the suspects and evidential material to the relevant authorities of the Republic of Cyprus. It stated that the Cypriot police had issued international arrest warrants in respect of four of the suspects, which had been forwarded to Interpol ’ s General Secretariat and to all of Interpol ’ s member States. The Cypriot police were in the process of issuing an international arrest warrant in respect of the fifth suspect.",
"(d) Internal note dated 25 January 2005",
"130. This note stated that the “TRNC” Attorney-General did not intend to hand over to the police of the Republic of Cyprus the three suspects that were detained in the “TRNC” for the murders, relying on the 1960 Constitution. The “TRNC” Attorney-General had notified UNFICYP of this. An attached memo by UNFICYP stated as follows:",
"“I have seen the [Attorney-General]. Mr A. S. with regard to the inquiries [made in respect of] and the prosecution of the culprits in respect of the Elmas Güzelyurtlu murder. He says that there is no legal and/or constitutional basis for handing over the accused to the Republican Authorities, for the following reasons:",
"The Constitution of Cyprus",
"Articles: 133,153,158,159 (2), (3) and (4)",
"Admin. of Justice Law 14/60",
"Section 4",
"Section 5",
"Section 20",
"Section 23",
"He made representation to UN for the Turkish suspect kept by the Greek Police to be handed over to Turkish for prosecution, together with others”.",
"(e) Police note dated 25 January 2005",
"131. This note stated that the SPA had met with the police at Nicosia police headquarters after she had met the same day with the “TRNC” Chief of Police. The latter had suggested that a meeting be organised with the Cypriot police, in secret, in neutral territory chosen by UNFICYP, so that the issue would not become the object of political manipulation. The “TRNC” Attorney-General had consented to such a meeting. According to the “TRNC” Chief of Police, there were possibly more suspects and the first applicant had given inaccurate information to the Cypriot police, including the wrong photo of the alleged fifth suspect. As a first step, the “TRNC” Chief of Police had suggested the participation in the investigation of an equal number of officers of the same grade from both sides and the presentation of all exhibits collected which could help solve the crime, such as photographs and fingerprints of the suspects and samples of genetic material. He had also mentioned that in order to ensure the continued detention of the suspects, the “TRNC” authorities would like to have the results of the DNA tests linking the suspects to the case. As a second step, the “TRNC” Chief of Police had suggested that the “TRNC” police be given information concerning the ballistic evidence in order to enable the “TRNC ” authorities to compare that evidence with information in their database. The SPA had noted that there would be no discussion in any meeting held as to which side would bring the suspects to justice, as the matter at this stage would be limited to the investigation of the case, without giving rise to any political implications. This matter could be discussed later on a political level. The Cypriot police had expressed their hesitations as to the usefulness and repercussions of such a meeting. They would inform her of the Chief of Police ’ s decision on the matter.",
"(f ) Letter dated 18 May 2006 from the Cypriot Chief of Police to the Ministry of Foreign Affairs",
"132. This letter stated that at meetings held with UNFICYP and the Deputy Senior Police Advisor (“ the DSPA”), the SPA had suggested that meetings between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police be held at a technical services level ( τεχνικό υπηρεσιακό επίπεδο ) in the mixed village of Pyla, which is located in the UN buffer zone between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police. The Cypriot Chief of Police had rejected this as constituting a move towards recognising a “pseudo - state” which provided refuge to fugitives. It was true that UNFICYP ’ s arguments for the meetings of the technical committees was valid in that there was a risk that the village of Pyla would become a safe haven for criminals. This could be dealt with, however, through more efficient cooperation between UNFICYP and the Cypriot authorities. The Cypriot Chief of Police sought to obtain the Cypriot Government ’ s political position regarding this suggestion.",
"(g ) Note by the Cypriot police to the Chief of Police dated 18 May 2006",
"133. This note stated that as concerned a meeting held on 17 May 2006 between the SPA, the DSPA, and members of the Cypriot police and investigation team, the DSPA had raised his concerns as to an increased level of collaboration between Greek Cypriot and Turkish Cypriot criminals and their movements across the island. The DSPA had been informed generally about evidence that had been collected. He had also enquired whether:",
"- the Cypriot police intended to give the evidence to UNFICYP for forwarding to the “TRNC” authorities to enable the suspects ’ prosecution;",
"- the Cypriot police could make the necessary arrangements for the suspects to be taken to a UNFICYP building at the Ledra Palace Hotel in the buffer zone and be questioned through “ the video recording interview method ”, and – if this was possible – whether such evidence would be admissible before a Cypriot court;",
"- if one of the suspects were to come over to make a statement against the other suspects, the Cypriot authorities would arrest him and bring criminal proceedings against him.",
"134. The Cypriot police had informed him that prosecution decisions were made by the Attorney-General. They had also informed him that they would cooperate with UNFICYP but not with the “TRNC” authorities or police. They had highlighted the fact that, despite the Red Notices, Turkey had refused to cooperate and had not surrendered the fifth suspect, who had gone to Turkey. They had arrested him but subsequently released him.",
"135. The DSPA had stated that the “TRNC” – pursuant to its own laws – could not surrender Turkish Cypriots. It had been stressed by the Police Chief Superintendant that the “TRNC” was not a state.",
"136. The DSPA had also put forward the suggestion that the suspects could be surrendered to a third country such as Greece, and that steps to bring them to justice could be taken from there. The Police Chief Superintendant had informed him that this was not an option and that Turkey had an obligation to comply with international law.",
"137. Finally, the DSPA had suggested that the matter could be discussed by the relevant technical committee (see paragraphs 154, 155 and 156 below ) in order to avoid the issue taking on a political dimension, to find solutions for cooperation and to bring the perpetrators to justice. He had been informed that this was a sensitive matter and that the political aspects could not be ignored; if the “ pseudo-state ” authorities were interested in completing the investigation and bringing the perpetrators to justice, they should stop providing refuge to criminals.",
"(h ) Internal note about a meeting on 20 June 2006 between UNFICYP and the Cypriot police",
"138. The note stated that at this meeting, the DSPA had noted that he was trying to convince the “TRNC” authorities to surrender the suspects. The Cypriot police had informed him that they would not be providing any evidence to, or cooperating with, the authorities of the “ pseudo-state ” but that they were willing to cooperate with UNFICYP without this implying any recognition of any illegal entity.",
"2. Information submitted by the Turkish Government",
"(a ) From the minutes of a meeting on 24 January 2005",
"139. On 24 January 2005 a meeting was held between the private secretary of the “TRNC” Prime Minister, the SPA, the head of UNFICYP ’ s civil affairs unit, and the envoy of the President of the Republic of Cyprus concerning the suspects held in detention. According to the minutes of the meeting, the “TRNC” authorities needed the results of the DNA tests that had been carried out by the Greek Cypriot authorities, which were reluctant to transmit them on the pretext that this would constitute the [ de facto ] recognition of the “TRNC”. The “TRNC” authorities suggested these could be transmitted through UNFICYP. A “non-paper” dated 24 January 2005 was given to the envoy. This stated as follows:",
"“ According to the Constitution of Cyprus (article 159), any case confined among Turkish Cypriots should be taken by the Turkish Cypriot courts.",
"In the case of murder of Elmas Güzelyurtlu and his family, all the suspects are Turkish Cypriots hence the case should be heard by Turkish Cypriot courts by Turkish Cypriot judges.",
"Since the act took place in Greek Cypriot side and all of the evidences collected successfully by the Greek Cypriot police, cooperation is needed for the justice to be done.",
"This is an urgent situation therefore we need to act together immediately. As a first step the report concerning the DNA analysis is needed to get the court order to have the suspects in custody during the lawsuit.",
"This is a humanitarian issue and totally out of political concerns. The political concerns should not be in the way to prevent the justice to take place. ”",
"(b ) From the minutes of a meeting on 25 January 2005",
"140. On 25 January 2005 the “TRNC” Chief of Police held a meeting with the SPA, who gave details about the circumstances of the murders. According to the minutes, Elmas Güzelyurtlu had been known throughout Cyprus and had been suspected of many crimes; some had involved the suspects. The information in the hands of the Greek Cypriot police was sufficient for the purpose of issuing arrest warrants in respect of the suspects. Although the “TRNC” police had already issued such warrants, they did not have evidence to bring proceedings against the suspects; more information was necessary. The SPA had asked for suggestions.",
"(c) From the minutes of a meeting on 26 January 2005",
"141. On 26 January 2005 a meeting was held between UNFICYP officials and “TRNC” functionaries, including the “TRNC” Deputy Prime Minister. According to the minutes, the question had been raised as to whether the Greek Cypriot authorities were willing to transmit the evidence. The “TRNC” Deputy Prime Minister had mentioned that if this was done the suspects ’ detention would be extended; then, if the “TRNC” courts considered the evidence to be credible, the suspects would be handed over to [the Republic of Cyprus] via UNFICYP.",
"(d) From the minutes of a meeting on 31 January 2005",
"142. On 31 January 2005 another meeting was held between UNFICYP and “ TRNC ” officials. According to the minutes, the UNFICYP officials had submitted Interpol ’ s Red Notices in respect of three of the suspects detained in the “TRNC”. They had mentioned that the Greek Cypriot authorities were reluctant to share the suspects ’ DNA test results and did not want to collaborate with the “TRNC”.",
"(e) From the minutes of a meeting on 7 February 2005",
"143. At a meeting held on 7 February 2005 UNFICYP officials and the Prime Minister of the “TRNC” discussed the reluctance of the Greek Cypriot authorities to cooperate.",
"(f) From the minutes of a meeting on 18 February 2005",
"144. On 18 February 2005 a meeting was held between the head of UNFICYP ’ s civil affairs unit and the Undersecretary of the “TRNC” Ministry of Foreign Affairs. The former stated that the Greek Cypriot authorities ’ attitude concerning their cooperation with the “TRNC” was changing and that they were planning to send the evidence through UNFICYP. He also asked the Undersecretary whether the suspects could be re-arrested and given to the Greek Cypriot authorities through UNFICYP. The Undersecretary replied that under the 1960 agreements if the suspects were Turkish, then they should be tried in a Turkish court.",
"(g) From the minutes of a telephone conversation on 30 March 2005",
"145. On 30 March 2005 the head of UNFICYP ’ s civil affairs unit had a telephone conversation with the “TRNC” Head of Consular Affairs. The former informed the latter that the courts of the British Sovereign Base areas did not have jurisdiction to try the suspects; however, the courts of the Republic of Cyprus could sit at the bases and the hearing could take place there. The Head of Consular Affairs stated that the “TRNC” authorities were not planning to take any steps until the evidence and records were given over to them because it was unacceptable to the “TRNC” authorities for the Greek Cypriot authorities to work alone on this matter.",
"(h) From the minutes of a meeting on 5 April 2005",
"146. On 5 April 2005 UNFICYP officials had a general meeting with the “TRNC” Head of Consular affairs who mentioned that the DNA results given to them were not sufficient in order to proceed further with the case file. The “TRNC” authorities needed more concrete evidence such as police investigation records and security camera records. The head of UNFICYP ’ s civil affairs unit promised to discuss this with the Greek Cypriot side.",
"3. Relevant correspondence between the applicants and UNFICYP",
"147. Between 2005 and 200 6, an exchange of correspondence concerning the investigation of the murders took place between the applicants ’ representatives and UNFICYP officials. The text of the most relevant communications between UNFICYP and the applicants ’ representatives is set out below:",
"148. In a communication to UNFICYP dated 19 December 2005, the applicant ’ s lawyer, requested, inter alia, the disclosure of any possible information relating to the UNFICYP ’ s efforts in the case, in particular, concerning the mistrust and lack of cooperation between the two sides. He wanted to ensure that all local remedies were properly exhausted and UNFICYP to help him to form a view in general terms about the attitude of both sides. If all legal means to bring about the prosecution of suspects of this heinous crime failed, he had instructions to bring an application before the Court against Turkey and Cyprus.",
"149. In a letter to the applicants ’ representatives dated 23 February 2006 the SPA, stated, inter alia, the following:",
"“1. The Senior Police Advisor (SPA) of the UN police in Cyprus first became involved in the case on 16 January 2005 at the request of the Assistant Chief of Police of the Republic of Cyprus, ... who at that time briefed the Senior Police Adviser on the case. A request was made to the SPA to facilitate the exchange of information between the sides.",
"2. At no time was the SPA asked to operationally assist in the investigation of the murder or apprehend the suspects. If [she had been] asked this would not have been agreed to as this is not within UNFICYP ’ s mandate.",
"... ( Illegible)",
"4. A copy of the preliminary investigation report prepared by the authorities in the south was provided to the Turkish Cypriot authorities, with the SPA ’ s facilitation. UNFICYP limited itself to a mediation role and therefore neither verified the contents nor kept a copy of the report.",
"5. At what point the trial venue became an issue cannot be ascertained as this was not within the control or knowledge of the SPA.",
"6. UNFICYP attempts to facilitate the exchange of information on criminal enquiries when asked to do so by one side or the other. ...",
"(Illegible)",
"8. As you may be aware, UNFICYP is not part of the internal justice system of the Republic of Cyprus and does not have executive power. UNFICYP is not in any sense an element of the “domestic remedies” available to victims of a crime in the [Republic of Cyprus] ”.",
"150. In an e-mail sent by the DSPA to the applicants ’ representative, Ms Meleagrou on 25 October 2006, the following, inter alia, was stated:",
"“I note your request and assure you of the UN ’ s utmost cooperation in dealing with any matter of a criminal nature, particularly ... in this most serious case. While UNFICYP has been exhausting its efforts to reach some conclusion to this case, it is unfortunate that there is a stalemate at this present time due to the two sides not agreeing on a way forward. I note your comments that:",
"The [Republic of Cyprus] will hand over to the UN in Cyprus all the evidence on the suspects so that the UN legal team can evaluate the evidence and see whether or not there is a prima facie case against them. The [Republic of Cyprus] will only do so if the “TRNC” authorities give an undertaking that they will hand the suspects over to the [Republic of Cyprus] to be tried if the UN is satisfied ( possibly after discussion with the “ TRNC ” – the italicised parenthesis is not strictly speaking part of the proposal at this stage but might be what we will have to argue in order to facilitate matters) that there is such a prima facie case against the suspects:",
"1. The [Republic of Cyprus] will not hand over any evidence for the purposes of conducting a trial in the north. This is despite the fact that [an ] other jurisdiction (United Kingdom) has in the past successfully caused a trial to be conducted in the north [ in respect of ] a serious crime committed in the UK.",
"2. The legal processes conducted in the north do not allow for the handing over of any [ Turkish Cypriot ] suspects to any authorities in the south or any other country in any other circumstances.",
"Therefore UNFICYP stands ready to facilitate [ in any way ] it can in this case, I can see no resolution being [arrived at] until such time as one side or the other cedes their current position. Either the [Republic of Cyprus] is willing to hand over all the evidence to the north and offer full police and evidentiary cooperation so that a trial can be conducted in that “jurisdiction”, or the north is willing to hand over suspects [ on the basis of ] sufficient evidence to cause the [ issuance ] of an arrest warrant in the north, with a view to handling the suspects to UNFICYP for passing on the [Republic of Cyprus].",
"As always UNFICYP stands ready to cooperate in whatever manner it can.”",
"151. In an e-mail sent by UNFICYP to the applicants ’ representative Ms Meleagrou on 16 November 2006 the following was stated :",
"“ As stated in my previous email to you UNFICYP stands ready to facilitate negotiations between the two sides in respect of this matter and indeed continues in its efforts to find a solution. However, UNFICYP is not in a position to formally engage a suitably qualified expert to officially adjudicate on the evidence held by the Republic of Cyprus. It has already been stated that while the UNFICYP believes that there is enough evidence on face value for the two sides to reach a suitable position, it welcomes the delivery of any further or all evidence, copies or otherwise, from the Republic of Cyprus that can be used to further meaningful dialogue between the two sides. I again reiterate the following options that may in my view facilitate further useful negotiations:",
"The [Republic of Cyprus], without prejudice, [should] deliver to the UNFICYP all necessary evidence, allowing this to be used as UNFICYP sees fit, with a view to negotiating the alleged offenders ’ arrest and handover to UNFICYP for delivery to the authorities in the south for the purposes of a trial. However, without a clear guarantee that the north will arrest and hand over the alleged offenders there is little chance of this being successful.",
"The only other solution is for the [Republic of Cyprus] to hand over all the evidence to UNFICYP for delivery to the relevant persons in the north with a view to having a trial conducted in the north. This option has already been rejected by the [Republic of Cyprus] .”",
"4. Other relevant documents : the UN Secretary-General ’ s reports on the UN operation in Cyprus",
"152. The relevant parts of the UN Secretary-General ’ s reports on the UN operation in Cyprus are set out below:",
"153. Report of 27 May 2005 :",
"“23. Official contact between the sides is hampered by a high degree of mistrust. On 15 January 2005, three members of a Turkish Cypriot family living in the south were killed .... Eight suspects were arrested in the north while all the evidence remained in the south. UNFICYP ’ s efforts to assist the sides to bring the suspects to justice proved unsuccessful, and all suspects were released in the north. This case is an illustration of the growing number of crimes across the cease-fire line, such as smuggling, drug trafficking, illegal immigration and human trafficking. These problems are implicit in the expanding inter-communal contacts, which though positive, have also the potential for adverse consequences if the present lack of cooperation between the sides persists.",
"24. The continuing absence of official contacts between the sides has accentuated UNFICYP ’ s role in promoting bicommunal contacts. Although people from either side can meet freely since the opening of the crossings in 2003, the impartiality of the Ledra Palace Hotel venue and the United Nations umbrella are considered indispensable for sensitive humanitarian and other meetings, including those of political parties from the north and the south. It is hoped that under the auspices of UNFICYP, contacts may be established between the sides, without prejudice to their political positions, on humanitarian and related issues generating a climate of trust and easing tensions. During the reporting period, UNFICYP provided facilities for 57 bicommunal events, including those implemented by the United Nations Development Programme (UNDP)/United Nations Office for Project Services (UNOPS) ... ”.",
"154. Report of 2 June 2008:",
"“4. On 21 March [2008 ], ... the two leaders met in the presence of my then Special Representative and agreed on a path towards a comprehensive settlement (see annex II). The agreement entailed the establishment of a number of working groups, to consider the core issues pertaining to an eventual settlement plan, and of technical committees, to seek immediate solutions to everyday problems arising from the division of the island. They also agreed to meet again in three months to review the work of the working groups and the technical committees and, using their results, to start full-fledged negotiations under United Nations auspices. In addition, the leaders agreed to meet as and when needed prior to the commencement of full-fledged negotiations. ...",
"5. On 26 March [2008], representatives of the leaders agreed to establish six working groups on governance and power-sharing, European Union matters, security and guarantees, territory, property and economic matters, as well as seven technical committees on crime and criminal matters, economic and commercial matters, cultural heritage, crisis management, humanitarian matters, health and the environment. ... On 22 April [2008], the groups and committees began to meet. They have been coming together on a regular basis since then, as foreseen by the leaders, and facilitated by the United Nations.”",
"155. Report of 15 May 2009 :",
"“9. On 14 April [2009], the leaders agreed to the implementation of 4 of the 23 confidence-building measures identified by the technical committees, which were aimed at improving the daily life of Cypriots across the entire island. They concern the passage of ambulances through crossing points in cases of emergency, the establishment of a communications and liaison facility (operating round the clock) to share information on crime and criminal matters, an initiative funded by the United Nations Development Programme (UNDP) on awareness-raising measures for saving water and the establishment of an advisory board on shared cultural heritage. ... ”",
"156. Report of 9 January 2015 :",
"“ 10. ( ... ) UNFICYP police facilitated meetings of the Technical Committee on Crime and Criminal Matters, and the Joint Communications Room continued to work actively, providing the police services of both sides with a forum for enhanced cooperation. The appointment for the first time of serving police officers as Greek Cypriot representatives to the Technical Committee signaled a significant step forward in cooperation. Over and above the exchange of information on criminal matters that have intercommunal elements, the Joint Communications Room focused on the investigation of crimes that took place within and across the buffer zone, the handover of persons of interest through the UNFICYP police and humanitarian cases.”"
] | [
"II. RELEVANT DOMESTIC LAW",
"157. The following provisions of domestic law of the Republic of Turkey ( including the “TRNC” ) are relevant for the purposes of the present application.",
"A. Extradition",
"158. Article 9 § 1 of the former Turkish Criminal Code (Law no.765) provided that:",
"“A request for the extradition to foreign states of a Turkish national on account of a criminal offence cannot be accepted.”",
"159. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Article 18 § 2 provided as follows:",
"“A citizen cannot be extradited on account of a criminal offence except under the obligations arising out of [Turkey] being a party to the International Criminal Court. ”",
"160. The Law on International Judicial Cooperation in Criminal Matters (Law no. 6706), which entered into force on 5 May 2016, replaced Article 18 of Law no. 5237. Article 11 § 1 ( a ), concerning the extradition of Turkish nationals, provides as follows:",
"“1. In the circumstances listed below an extradition request shall be rejected:",
"(a) If the person whose extradition is requested is a Turkish citizen, except for the obligations arising out of [Turkey] being a party to the International Criminal Court; ... ”",
"161. Section 5 of the “TRNC” Law on Extradition of Criminals, Mutual Enforcement of Court Decisions and Judicial Cooperation ( Law 43/ 19 88), in so far as relevant, provides that extradition will be refused when, inter alia, the person whose extradition is sought is a national of the country to which the request is addressed (section 5(1)( C )) [ or ] if the crime that is the subject of the extradition request was committed, wholly or partially, in the requested state or in a place/location under its jurisdiction (section 5(1)( F )). Section 19 of the above -mentioned law provides for the reciprocity principle and states that this law applies in respect of countries which have executed agreements with the “ TRNC ” regarding matters that fall within the scope of this Law, on the basis of reciprocity.",
"B. Criminal jurisdiction of the courts of the “TRNC”",
"162. Section 31(1) of the “TRNC” Courts of Justice Law (Law no. 9/1976) provides that without prejudice to the constitutional provisions, the appropriate Assize Court has jurisdiction to try, inter alia, offences punishable under the criminal law or any other law which has been committed (a) in the “TRNC” ( section 31(1)( a ); or (b) outside the “TRNC” but on the island of Cyprus ( section 31(1)( b ).",
"163. Pursuant to section 31(2 )( b ) offences committed outside the island of Cyprus are treated as if they had been committed within the jurisdiction of the “TRNC” Nicosia District Court ( Kıbrıs adası dışında işlenen suçlar Lefkoşa Kaza Mahkemesi yetki alanı içinde işlenmiş sayılır ).",
"III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS",
"A. Extradition",
"164. The European Convention on Extradition of 13 December 1957 was ratified by Turkey on 7 January 1960 and entered into force in respect of Turkey on 18 April 1960. The four Additional Protocols to the Convention were ratified on 11 July 2016 (the Additional, Third and Fourth Protocols ) and 10 July 1992 (the Second Protocol ) and entered into force in respect of Turkey on 9 October 2016 (the Additional Protocol ), 8 October 1992 (the Second Protocol ) and 1 November 2016 (the Third and Fourth Protocols ). The Turkish Government have made, inter alia, a declaration in respect of the Additional Protocol and the Third and Fourth Additional Protocols concerning the Republic of Cyprus. In this they declared that their ratification of the above Protocols did not amount “to any form of recognition of the Greek Cypriot Administration ’ s pretention to represent the defunct ‘ Republic of Cyprus ’ as party” to these instruments, “nor should it imply any obligations on the part of Turkey to enter into any dealing with the so-called Republic of Cyprus within the framework” of these instruments.",
"165. This Convention was ratified by and entered into force in respect of Cyprus on 22 April 1971. The three Additional Protocols to the Convention were also ratified on 22 May 1979, 13 April 1984 and 7 February 2014 and entered into force in respect of Cyprus on 20 August 1979, 12 July 1984 and 1 June 2014 respectively.",
"166. The relevant provisions of this Convention read as follows:",
"Article 6 – Extradition of nationals",
"“ 1. (a) A Contracting Party shall have the right to refuse extradition of its nationals.",
"...",
"(2) If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request. ”",
"Article 18 – Surrender of the person to be extradited",
"“1.The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition.",
"2. Reasons shall be given for any complete or partial rejection.",
"...”.",
"Article 27 – Territorial application",
"“1. This Convention shall apply to the metropolitan territories of the Contracting Parties. ”",
"B. Cooperation in criminal matters",
"1. The European Convention on Mutual Assistance in Criminal Matters",
"167. The European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 was ratified by Cyprus on 24 February 2000 and entered into force on 24 May 2000. Cyprus ratified the two Additional Protocols on 24 February 2000 and 12 February 2015 respectively; they came into force in respect of Cyprus on 24 May 2000 and 1 June 2015.",
"168. Turkey ratified the Convention on 24 June 1969. It entered into force in respect of Turkey on 22 September 1969. Turkey ratified the two Additional Protocols on 29 March 1990 and 11 July 2016 respectively; they came into force in respect of Turkey on 27 June 1990 and 1 November 2016. The Turkish Government have made the same declaration as the one they made under the European Convention on Extradition in respect of the second Additional Protocol concerning the Republic of Cyprus (see paragraph 164 above).",
"169. Article 1 establishes an obligation on Contracting Parties to:",
"“ ... promptly afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party”.",
"170. Article 2 provides that assistance may be refused in the following circumstances:",
"“(a) if the request concerns an offence which the requested Party considers a political offence, an offence connected with a political offence, or a fiscal offence; [or]",
"(b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country.",
"171. Article 3 provides that:",
"“1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents.",
"2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it.”",
"2. The European Convention on the Transfer of Proceedings in Criminal Matters",
"172. The European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 was ratified by Cyprus on 19 December 2001 and entered into force in respect of Cyprus on 20 March 2002. Turkey ratified the Convention on 22 October 1978 and it entered into force in respect of Turkey on 28 January 1979. The Turkish Government have made a declaration that they do not consider themselves bound to carry out the provisions of the Convention “in relation to the Greek Cypriot Administration, which is not constitutionally entitled to represent alone the Republic of Cyprus”.",
"173. The relevant provisions of this Convention provide as follows:",
"Article 3",
"“ Any Contracting State having competence under its own law to prosecute an offence may, for the purposes of applying this Convention, waive or desist from proceedings against a suspected person who is being or will be prosecuted for the same offence by another Contracting State. Having regard to Article 21, paragraph 2, any such decision to waive or to desist from proceedings shall be provisional pending a final decision in the other Contracting State.",
"Article 6",
"“1. When a person is suspected of having committed an offence under the law of a Contracting State, that State may request another Contracting State to take proceedings in the cases and under the conditions provided for in this Convention.",
"2. If under the provisions of this Convention a Contracting State may request another Contracting State to take proceedings, the competent authorities of the first State shall take that possibility into consideration.”",
"PROCEEDINGS BEFORE THE COURT",
"174. By a letter sent on 16 August 2007 the applicants ’ representatives submitted to the Court a letter with the applicants ’ details, an outline of the case and stating their Convention complaints against Cyprus and Turkey. They requested that this letter be considered as constituting a formal introduction of the applicants ’ complaints before the Court and asked the Registry to provide them with an application form.",
"175. The Court responded, by a letter of 24 August 2007, enclosing an application package. It pointed out:",
"“You must send the duly completed application form and any necessary supplementary documents to the Court as soon as possible and at the latest within six months of the date of the present letter. No extension of this period is possible. If the application form and all the relevant documents are not sent within the above period, the file opened will be destroyed without further warning.”",
"176. The completed application form was received by the Court on 13 December 2007 and the application was registered.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13",
"177. The applicants complained that there had been a violation of Article 2 of the Convention by both the Cypriot and Turkish (including the “TRNC”) authorities on account of their failure to conduct an effective investigation into the deaths of their relatives, Elmas, Zerrin and Eylül Güzelyurtlu. They pointed to the failure of the respondent States to cooperate in the investigation of the murders and bring the suspects to justice. The applicants contended that where there had been a systemic failure to investigate certain killings after the perpetrators had escaped by crossing a dividing line; the substantive requirement of Article 2 had also been violated, as the domestic laws in place had not protected the right to life.",
"178. Article 2, in so far as relevant, reads as follows:",
"“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”",
"179. The applicants further complained under Article 13 of the Convention of the lack of an effective domestic remedy in respect of the above. They claimed that the prevailing political problems rendered any existing judicial domestic mechanisms ineffective and prevented any fruitful investigation from taking place.",
"180. Article 13 reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"181. At the outset, the Court finds that no issue arises in the case under the substantive limb of Article 2 § 1 and that the entirety of the applicants ’ complaints relate in substance to an alleged failure by the authorities of the respondent States to discharge their procedural obligations under that provision.",
"A. Admissibility",
"182. The Turkish Government submitted that in so far as the application was directed against Turkey the applicants had failed to lodge their application within the six-month time-limit, as required by Article 35 § 1 of the Convention, and that they had not exhausted the domestic remedies available to them. The Cyprus Government submitted that to the extent that the application was directed against Cyprus it was manifestly ill-founded.",
"183. The Court will examine these pleas below. It first notes, however, that, while the Turkish Government made no plea as to the Court ’ s competence ratione loci to examine the complaints against them, the deaths of the applicants ’ relatives took place in the territory controlled by and under the jurisdiction of the Republic of Cyprus and it must examine this question of its own motion ( see Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, § 56, 31 July 2014, and mutatis mutandis Blečić v. Croatia [GC], no. 59532/00, §§ 67-69, ECHR 2006 ‑ III).",
"1. In so far as the application is directed against Turkey",
"( a ) Compatibility ratione loci of the application",
"184. Article 1 of the Convention provides that:",
"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”",
"185. “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 103, ECHR 2012 (extracts), and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011 ). As the Court has emphasised, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial ( ibid., § 104 and § 131, respectively) and has only extended jurisdiction beyond territoriality in exceptional situations (see Hassan v. the United Kingdom [GC], no. 29750/09, §§ 74-80, ECHR 2014 ).",
"186. The Court recalls that generally the procedural obligation under Article 2 falls on the respondent State under whose jurisdiction the victim was at the time of death (see Emin and Others v. Cyprus (dec.), nos. 59623/08, 3706/09, 16206/09, 25180/09, 32744/09, 36499/09 and 57250/09, 3 June 2010, and Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-244, ECHR 2010 (extracts)). Nonetheless, as the Court explained in Rantsev, special elements in a case will justify departure from the general approach (ibid.). Where there are cross-border elements to an incident of unlawful violence leading to loss of life, the fundamental importance of Article 2 requires that the authorities of the State to which the suspected perpetrators have fled and in which evidence of the offence could be located, of their own motion, take effective measures in that regard (see O ’ Loughlin and Others v. the United Kingdom (dec.), no. 23274/04, 25 August 2005, and Cummins and Others v. the United Kingdom (dec.), no. 27306/05, 13 December 2005). Otherwise, those indulging in cross-border attacks will be able to operate with impunity and the authorities of the Contracting State where the unlawful attacks have taken place will be foiled in their own efforts to protect the fundamental rights of their citizens and, indeed, of any individuals within their jurisdiction.",
"187. In the present case, the Court observes that the suspected perpetrators of the murder of the applicants ’ relatives are or were within Turkey ’ s jurisdiction, either in the “TRNC” ( Cyprus v. Turkey [GC], no. 25781/94, § 77, ECHR 2001 ‑ IV ) or in mainland Turkey. The Turkish and “TRNC” authorities were informed of the crime and Red Notices concerning the suspects were published. These elements engage Turkey ’ s procedural obligation under Article 2 and thus justify departure from the general approach.",
"188. The Court notes that the “TRNC” authorities instituted their own criminal investigation in the case and that their courts have criminal jurisdiction over individuals who have committed crimes on the whole island of Cyprus ( compare Gray v. Germany, no. 49278/09, 2 2 May 2014, as well as Aliyeva, cited above, § 57 ).",
"189. In conclusion, the Court finds that the applicants ’ complaints against Turkey are compatible ratione loci with the provisions of the Convention. The extent and scope of the procedural obligation incumbent on Turkey in the circumstances of the case remains to be determined in the Court ’ s assessment of the merits of those complaints.",
"190. The Court will now turn to the Turkish Government ’ s inadmissibility pleas.",
"(b) Exhaustion of domestic remedies",
"( i ) Submissions to the Court",
"( α ) The Turkish Government ’ s submissions",
"191. The Turkish Government submitted that the “TRNC” law provided civil, administrative and criminal remedies which, however, the applicants had not exhausted before filing their application with the Court.",
"192. Firstly, the applicants could have brought a civil action against the suspects before the relevant “TRNC” district court under the “TRNC” Civil Wrongs Law. As alleged by the applicants, the suspects in this case had been identified and there was enough evidence linking them to the murder of the applicants ’ relatives. The “TRNC” courts, pursuant to the Courts of Justice Law, had jurisdiction to hear civil cases where the defendant resided or worked in the “TRNC” and where the cause of action arose, in whole or in part, outside the territory of the “TRNC” but on the island of Cyprus (sections 24(1 )( b) and (c) of the “TRNC” Courts of Justice Law). Such an action could be brought by the husband, wife, parent or child of a deceased person who had been entitled at the time of his or her death to recover compensation from the person responsible (section 58(1) of the “TRNC” Civil Wrongs Law). The applicants had not had to wait for the initiation or conclusion of any criminal action before bringing such a civil action.",
"193. Secondly, the Turkish Government submitted that the applicants could have applied to the “TRNC” Supreme Court, sitting as the Court of Appeal ( Yargıtay ), for an order of mandamus to compel the “TRNC” authorities to cooperate with the Greek Cypriot police in order to secure the prosecution of the suspects in the “TRNC”. Under Article 151 § 3 of the “TRNC” Constitution, the Supreme Court had original jurisdiction to issue such an order. Moreover, the “TRNC” Supreme Court, sitting as the High Administrative Court, also had jurisdiction to order that whatever actions the administrative authority in question had failed to perform must be undertaken.",
"194. Thirdly, the applicants had had the right to bring a private criminal action against the suspects. On the basis of Article 158(4)(a) of the “TRNC” Constitution the Attorney-General had the power, in the public interest, to take over proceedings in respect of an offence, provided that the necessary evidence collected by the authorities of the other side was brought before the “TRNC” courts by the applicants in a private criminal action. The Government maintained that the applicants had been in a better position to access the evidence required – in respect of both civil and criminal proceedings – than the “TRNC” authorities. For example, the Greek Cypriot police had provided them with a copy of their report dated 17 February 2006.",
"195. Lastly, the applicants could have complained about a violation of Article 2 of the Convention before those “TRNC” district courts that applied the Convention.",
"( β ) The applicants ’ submissions",
"196. Relying on the judgment in Öneryıldız v. Turkey [GC] (no. 48939/99, § 93, ECHR 2004 ‑ XII), the applicants submitted that the failure to prosecute those responsible for endangering life had violated Article 2, irrespective of any other types of remedy which individuals might exercise on their own initiative. Therefore, the Government ’ s submissions concerning civil law remedies were misconceived. Furthermore, bringing their own criminal action had not been a practical option. The case of Öneryıldız constituted authority against such a course of action. Nor had it been open to the applicants to apply for a mandamus as, inter alia, “TRNC” law prohibited the extradition of “TRNC” nationals and therefore such a remedy would not have been effective or sufficient to provide redress. Lastly, they pointed out that all the evidence concerning the case had been provided to the “TRNC” authorities through the Court upon communication of the case in 2008.",
"(ii ) The Court ’ s assessment",
"197. At the outset, the Court notes that, pursuant to Cyprus v. Turkey, ( cited above, §§ 82 ‑ 102 ) and numerous subsequent judgments (see, for instance, Kyriacou Tsiakkourmas and Others v. Turkey, no. 13320/02, §§ 157-158, 2 June 2015; Kallis and Androulla Panayi v. Turkey, no. 45388/99, § 32, 27 October 2009; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; and Adalı v. Turkey, no. 38187/97, § 186, 31 March 2005 ), remedies available in the “TRNC” can be regarded as “domestic remedies” of the respondent State for the purposes of Article 35 § 1 of the Convention and that the question of their effectiveness is to be considered in the specific circumstances in which that question arises. That conclusion is not to be seen as in any way casting doubt on the view of the international community regarding the establishment of the “TRNC” or the fact that the Government of the Republic of Cyprus remained the sole legitimate government of Cyprus. In this connection, the Court had stressed in its Demopoulos and Others decision that “allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimisation of a regime unlawful under international law” (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010 ). Thus, “TRNC” remedies may be taken into account in this context.",
"198. That said, as regards the Turkish Government ’ s argument that the applicants could have brought a civil action for damages against the suspects in the “TRNC” courts, the Court has repeatedly held that civil proceedings which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention (see, for example, McKerr v. the United Kingdom, no. 28883/95, §§ 121 and 156, ECHR 2001 ‑ III). Otherwise, a Contracting State ’ s obligation under Article 2 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under that Article, an applicant would be required to exhaust an action leading only to an award of damages (see among many authorities, Jelić v. Croatia, no. 57856/11, § 64, 12 June 2014, and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005).",
"199. Nor could the applicants be required, taking into account the obligation incumbent on the State authorities to act on their own motion in cases of deaths that occurred in suspicious circumstances ( see Rantsev, cited above, § 232 and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 ‑ VII), to bring private criminal proceedings against the suspects, or to apply for an order of mandamus. The Court notes that the “TRNC” authorities opened a criminal investigation ex officio in the case. In the Court ’ s view, this investigation afforded the State an opportunity to put matters right since it could have resulted in the identification and the punishment of those responsible. The applicants were thus not required in addition to embark on any other remedies on the matter (see Haász and Szabó v. Hungary, nos. 11327/14 and 11613/14, § § 30-34, 13 October 2015).",
"200. Lastly, as regards the argument by the Turkish Government that the applicants should have invoked Article 2 before the “TRNC” courts, the Court notes that this reference is vague and unsubstantiated.",
"201. In view of the above, the Turkish Government ’ s plea of non-exhaustion must be dismissed.",
"( c ) Six-month time-limit",
"( i ) Submissions to the Court",
"( α ) The Turkish Government ’ s submissions",
"202. The Turkish Government considered that the application had been introduced outside of the six-month time-limit set by Article 35 § 1 of the Convention.",
"203. At the outset, the Turkish Government contested the date on which the application had been lodged with the Court. In their view the application had not been introduced on 16 August 2007 but on 7 January 2008, that is to say the date of the Court ’ s stamp on the application form.",
"204. Alternatively, should the Court consider that the six-month period began to run on 16 August 2007, the delay between date of the initial letter of intent and that of the submission of the application form (7 January 2008) had been such that the beginning of the initial correspondence had ceased to constitute the introduction of the application form. The Turkish Government relied on the decisions in Nee v. Ireland ( (dec.), no. 52787/99, 30 January 2003 ) and J.-P.P v. France ( no. 2212 3/93, Commission decision of 31 August 1994, Decisions and Reports (DR). 79-B, p. 72). They argued that that there were a number of possible starting dates for the six-month period in the present case; all of them, however, had fallen more than six months before the date of the lodging of the above application.",
"205. In the first place, the applicants had stated in their application form to the Court that it had become clear to them by the second week of February 2005 that the investigation had reached a stalemate. They should have therefore lodged their application by August 2005. Secondly, as could be seen from the letter dated 19 December 2005 sent by their representatives to the UNFICYP spokesman, the applicants must have received legal advice about their right to file an application before the Court before that date. Despite this they had still waited almost three years to lodge their application. Thirdly, in a letter dated 30 November 2006 to the Prime Minister of Turkey, the applicants ’ lawyer had stated that they had exhausted the possibilities for reaching the desired compromise through negotiation and mediation (see paragraph 122 above). In view of the above, and relying on Court ’ s decision in O ’ Loughlin (cited above), the Turkish Government argued that the applicants had realised long before they lodged their application that there would be no further investigation in respect of the case and had already been advised that they had grounds to bring an application to Strasbourg. Any attempts by the applicants to prolong the investigation by appealing to UNFICYP were irrelevant as the latter was not a domestic remedy to be exhausted for the purposes of Article 35 § 1. The applicants ’ representative had been informed of this in a letter dated 23 February 2006 sent to them by the SPA (see paragraph 149 above).",
"( β ) The applicants ’ submissions",
"206. The applicants stressed that in the letter of intent that they sent to the Court on 16 August 2007 they had set out their Convention complaints.",
"207. As for the six-month time-limit, this had not yet started to run in their case as their complaints concerned a continuing situation. Firstly, the criminal investigations were still continuing on both sides. The situation in their case could not be compared to that in O ’ Loughlin (cited above), where the delay in filing the application had been striking, there had not been an on-going murder investigation, and the United Kingdom Government had not been keen to prosecute. The Government of Turkey had admitted in their observations that the case file of the “TRNC” Attorney-General was still open and awaiting the submission of evidence by the Cypriot Government (see paragraphs 101 above and 241 below ). Furthermore, the applicants ’ letters to the President of the “TRNC” and the Prime Minister of Turkey had remained unanswered ( see paragraphs 121 and 122 above ). Secondly, the applicants were in fear of their lives as a result of the failure of the respondent Governments to cooperate and punish the perpetrators of the murders. There had been an attempt to murder the first applicant on 16 July 2007 and his bodyguard had been murdered in May 2009.",
"208. Lastly, the applicants argued that it had been reasonable to try to get the two sides to cooperate before lodging an application with the Court.",
"( ii ) The Court ’ s assessment",
"( α ) Date of introduction of the application",
"209. According to the Court ’ s case-law, as applicable at the relevant time, the date of introduction of an application was as a rule considered to be the date of the first communication from the applicant indicating an intention to lodge an application and giving some indication of the nature of the application (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 89, 21 July 2015 with further references). This was on the condition that a duly completed application form was then submitted within the time ‑ limit fixed by the Court (see, for instance, Kemevuako v. the Netherlands (dec.), no.65938/09, §§ 19-20, 1 June 2010). Such a first communication, which at the time could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Oliari and Others, cited above, § 89).",
"210. In the instant case, the first communication indicating the intention to lodge a case with the Court (together with the object of the application ) was sent by the applicants ’ representatives on 16 August 2007 (see paragraph 174 above). A completed application followed, in accordance with the instructions given by the Registry (see paragraphs 175 and 176 above ). The date of introduction in respect of the application was thus 16 August 2007.",
"211. It remains to be determined whether the application complies with the six-month rule.",
"( β ) Compliance with the six-month time-limit",
"212. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts), with further references).",
"213. In cases of a continuing situation, the period starts to run afresh each day and it is in general only when that situation ends that the six ‑ month period actually starts to run (ibid., § 261). However, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved ( ibid., § 262 ). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time leads to the deterioration of evidence, time has an effect not only on the fulfilment of the State ’ s obligation to investigate but also on the meaningfulness and effectiveness of the Court ’ s own examination of the case. An applicant has to become active once it is clear that no effective investigation will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligation under the Convention ( ibid., § 261).",
"214. The Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicants ’ relatives are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any appropriate redress, including effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009, with further reference therein). In particular, as regards cases of unlawful or violent death, the Court has indicated that an applicant should bring such a case to the Court within a matter of months, or at most, depending on the circumstances, a few years after the events in question ( ibid., § 162). Where there is an investigation of sorts, even if plagued by problems, the Court accepts that applicants may reasonably wait for developments which could potentially resolve crucial factual or legal issues (ibid., §166). It is in the interests of not only the applicant but also the efficacy of the Convention system that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention.",
"215. Applying those principles to the facts of the present case, the Court notes that following the death of their relatives on 15 January 2005 two parallel investigations were taken up by the Cypriot Government and the “TRNC” authorities. In the initial year and a half or so the investigations were intensive and there was a strong involvement on the part of UNFICYP to find a solution. The applicants were in contact with all the authorities concerned and UNFICYP in their efforts to help the investigations progress. Although it appears that the applicants started to lose hope because of the lack of cooperation by the two sides, the Court considers that it was reasonable for the applicants to wait for the ongoing investigations and the mediation via UNFICYP to yield results. Nor can it be said that the applicants waited unduly before introducing their complaints before the Court on 16 August 2007, two years and seven months after the death of their relatives. At the time that they lodged their application with the Court the Cypriot Government ’ s investigation was still continuing. As for the investigation in the “TRNC” no date has been given as to when the file of the case was classified as “non-resolved for the time being ”. This must, however, have been after 22 March 2007, for – as can been seen from the “TRNC” Police Chief Inspector ’ s report – investigative steps were taken on that date (see paragraph 99 above). There is no indication that the applicants were informed at the time of this development in the investigation. In any event, the application was still filed within six months of the above date.",
"216. In the light of the above, the Court finds that there was no lack of due diligence on the part of the applicants in lodging their application and that the Turkish Government ’ s plea concerning the timeliness of the applicants ’ complaints must also be dismissed.",
"2. The well-foundedness of the application",
"217. The Court considers that the applicants ’ complaint under Article 2 of the Convention raises serious questions of fact and law in respect of both respondent States which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible, along with the related complaint under Article 13.",
"B. Merits",
"1. Submissions of the parties",
"(a) The applicants",
"(i) With regard to the scope of the procedural obligation of the Respondent States",
"218. The applicants submitted that the crux of the problem was the persistent refusal of the respondent States to cooperate. This stemmed primarily from the fact that the Turkish Government did not recognise the Cypriot Government, and the latter in turn did not recognise the “TRNC”. All the authorities concerned had obstinately clung to their respective positions : the Cypriot Government had not been prepared to provide the “TRNC” with any evidence and had insisted on the surrendering of the suspects for trial in their courts; the “TRNC” had not been prepared to cooperate unless all evidence was provided and the suspects were prosecuted and tried in its own courts. As a result of this failure, despite cogent and compelling evidence, the perpetrators had not been punished.",
"219. The applicants submitted that there was a duty on States to cooperate with investigations held outside their jurisdiction or areas under their control. This arose from the primary obligation States had under Articles 1 and 2 of the Convention. When jurisdictions overlapped or were concurrent, Member States were under an obligation to cooperate in order to secure the right to life of persons within their jurisdictions. A finding that there was no such obligation would result in a “vacuum” of protection within the “legal space of the Convention” of the right to life (relying, mutatis mutandis, on Cyprus v. Turkey, cited above, § 78).",
"220. Referring to the principles established under Article 2 (relying, inter alia, on Angelova and Iliev v. Bulgaria ( no. 55523/00, § § 91-98, 26 July 2007 ) the applicants argued that the obligation to cooperate entailed (i) the duty to take steps to accommodate overlapping jurisdictions, and (ii) to have in place effective law- enforcement machinery that deterred the commission of life-endangering offences, dealt with extradition and/ or the ad hoc rendition of fugitive offenders and made provision for mutual assistance in their apprehension and punishment. Relying on O ’ Loughlin (cited above) the applicants submitted that the normal way to secure evidence and take measures in relation to suspected fugitive offenders was through early cooperation between the police and prosecutors of the States in question. This required establishing lines of communication and an exchange of information and evidence.",
"221. By way of example the applicants referred to the Guidance for Handling Criminal Cases with Concurrent Jurisdiction Between the United Kingdom and the United States of America (published in January 2007). This prescribed a three-stage approach: first, the early sharing of information between investigators and prosecutors, second, consultation between prosecutors, and third, in the event of failure to reach an agreement, the taking up of the issues by the State ’ s respective law officers with the aim of resolving them. The applicants also cited the European Convention on Mutual Assistance in Criminal Matters, to which both respondent States were parties, pursuant to which Member States had undertaken to provide each other with the widest measure of mutual assistance in criminal matters.",
"222. There was also an equivalent negative obligation on States not to have laws and practices that rendered extradition, rendition or mutual assistance impossible.",
"223. Here the respondent States ’ failure to cooperate had led to a gap in the protection of a fundamental human right. The respondent States were more concerned with their political agendas than with their obligations under Article 2. If there had been political will, a solution could have been found – for example, as in the Lockerbie case, the trial could have been held at a neutral venue ( The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998; (S.I. 1998 No. 2251) and United Nations Security Council Resolution 1192 of 27 August 1998 on the Lockerbie case).",
"224. The applicants also maintained that the respondent States had failed to comply with their obligations both under the European Convention on Extradition and under the European Convention on Mutual Assistance in Criminal Matters.",
"(ii ) With regard to the responsibility of the Cypriot Government",
"225. Relying on Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 331-335, ECHR 2004 ‑ VII), the applicants argued that although the Cypriot Government were prevented from exercising effective control over the “TRNC” they still had a positive obligation under Article 1 of the Convention to secure for the applicants the rights guaranteed by the Convention. The existence of an unlawful breakaway administration did not absolve a state from its obligations under Articles 1 and 2. The Cypriot Government ’ s unwillingness to cooperate with any of the “TRNC” law enforcement agencies, directly or even indirectly through UNFICYP, and provide them with any evidence concerning the case, had been in violation of their procedural obligation to conduct an effective investigation within the area in which they had effective control (relying on Ilaşcu, cited above, §§ 331-335). They had further failed in their free- standing obligation to disclose to the applicants all witness statements taken by the authorities during the investigation (referring to Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001).",
"226. In the applicants ’ view, disclosing evidence to the “TRNC” police in order to enable the prosecution of the perpetrators did not in law amount to recognition of or support for the “TRNC” (relying on Ilaşcu, cited above, §§ 345-346). Nor did international law prohibit cooperation in police matters with unrecognised police entities. Indeed, police forces frequently had to cooperate with people they preferred not to have dealings with. The reasoning of the Court in its judgment in Cyprus v. Turkey (cited above, § 98) concerning the “TRNC” courts could be equally applied to the “TRNC” police. The applicants requested the Court to rule that providing evidence to enable the arrest of fugitive murderers did not imply recognition of the “TRNC” or that any such implication should be treated de minimis.",
"227. The applicants blamed the attitude of the Cypriot Government. It was evident that initially the “TRNC” authorities had not been averse to handing over the suspects for trial but their attitude had hardened following the Cypriot Government ’ s refusal to deal with them. Handing over the evidence would have secured at least the continued detention of the suspects. As the Cypriot Government had refused to provide the evidence, the “TRNC” authorities had not been able to take the requisite steps to hand over the suspects.",
"228. The argument of the Cypriot Government that they were not under an obligation to take measures vis-à-vis a separatist administration by surrendering part of their sovereignty in respect of crimes committed on their territory was not compatible with the principles established by the Court in Ilaşcu. The importance the Cypriot Government had attached to the safeguarding of its sovereignty had been disproportionate, bearing in mind the enormity of the crime and the non-derogatory nature of the right to life. Furthermore, they were a Contracting State to the 1972 European Convention on the Transfer of Proceedings in Criminal Matters and had agreed in principle to request other countries to prosecute persons suspected of having committed offences within the Cypriot Government ’ s jurisdiction.",
"229. Moreover, the applicants submitted that it was their counsel who had repeatedly raised the absence of evidence in writing of an extradition request at a meeting with the Attorney-General at his office in August 2008. The extradition requests had been made following this meeting. They pointed out that the Cypriot Government had not explained the delay in requesting the suspects ’ extradition following the issuance of the international arrest warrants. The manner in which the requests had been made was also questionable.",
"(iii) With regard to the responsibility of the Turkish Government",
"230. Turkey had concurrent extra-territorial jurisdiction under Article 1 of the Convention as it exercised effective control of the “TRNC” and therefore had responsibility for the stance taken by the “TRNC” in the case ( Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI ). This entailed a heavy obligation under Articles 1 and 2 of the Convention not to impede any murder investigation by another State in order to ensure that a safe haven was not created for murder suspects who had fled. There was also a positive obligation to cooperate fully in any such murder investigation ( relying on Ilaşcu, cited above, § 317). By refusing to engage at all with the Cypriot Government and to deal with the extradition requests, Turkey had been in breach of her procedural obligation under Article 2.",
"231. The applicants considered that the “TRNC” authorities had been wrong to claim the right to conduct a rival primary investigation knowing that they had no access to the locus delicti; it had been bound to be ineffective and doomed to fail in limine. The investigation conducted in the “TRNC” had not been genuine and had apparently been aimed at obtaining confessions. Furthermore, although there had been no indication that the evidence would be handed over, the “TRNC” authorities ’ insistence on holding a trial had only aggravated the situation.",
"232. Even though the “TRNC” authorities had received the evidence in the case through the Court following communication of the case in October 2009, they had not taken any action. Furthermore, following the murder of the first applicant ’ s bodyguard, two of the suspects had been in the hands of the “TRNC”. They should have been questioned about their involvement in the murder and asked to account for the presence of their DNA at the scene of the crime. The first suspect had given a statement on oath to the effect that he had been involved in the killings. Despite the Kyrenia Assize Court ’ s request that the evidence be referred to the “TRNC” Attorney-General no steps had been taken by the authorities. There had also been ballistic evidence establishing that the gun used in the murder of the first applicant ’ s bodyguard had been the same as the one that had been used in the attempt to kill the first applicant. Consequently, the applicants submitted that the “TRNC” authorities had evidence enabling them to start a prosecution for the murder of their relatives. The authorities ’ claim that they had not been able to do so due to the failure of the Cypriot Government to provide evidence had simply been an excuse and had been politically motivated.",
"233. It could not be ignored that the “TRNC” was an illegal entity and not recognised in international law. Its domestic laws on extradition and jurisdiction in respect of crimes committed outside its jurisdiction rendered it a safe haven for fugitive murderers. There was thus a clear lack of a legislative and administrative framework deterring the commission of murders in the areas controlled by the Cypriot Government. Furthermore, both the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters, to which Turkey was a party, applied to northern Cyprus, which came under Turkey ’ s effective control and lay within the Council of Europe ’ s espace juridique and thus its “metropolitan areas”. Turkey had not denounced these Conventions or made a reservation in respect of the “TRNC”.",
"234. Furthermore the Turkish Government could not argue that a trial in the Republic of Cyprus would be unfair due to the composition of the bench.",
"(b) The Cypriot Government",
"235. The Cypriot Government submitted that they had taken all measures that had been within their power to secure the applicants ’ rights under Article 2.",
"236. The authorities had carried out an extensive investigation, which had included, inter alia, complete post - mortem, forensic and DNA examinations, the examination of a large number of exhibits found and collected from the scene of the crime and the victims ’ house, the tracing and questioning of numerous witnesses and obtaining statements from them, and the inspection of computer hard discs. The investigation had resulted in the identification of eight suspects. The authorities had been in contact with UNFICYP ’ s representatives for the purpose of negotiating with the “TRNC” authorities for the handing over of the suspects to the Republic. Information and evidential material had been transmitted to the “TRNC” authorities through UNFICYP for this purpose, domestic and international arrest warrants had been issued, and extradition requests had been made to the Turkish Government.",
"237. As the crime had been committed on the territory under its control, the Cypriot Government submitted that they had jurisdiction to try the suspects, both under domestic and international law. Under international law, the principal ground for the exercise of original jurisdiction was that of territoriality. The Court had acknowledged this in its judgment in the case of Rantsev (cited above, § 206). Furthermore, they also had jurisdiction under international law on the basis of both the active and the passive nationality principle: the victims had been and the suspects were members of the Republic ’ s Turkish Cypriot community and nationals of the Republic; the victims had had their ordinary residence in territory controlled by the Republic. Consequently, no question arose of overlapping or concurrent jurisdiction to try the crime between the Republic of Cyprus and Turkey and/or the separatist local administration in the Republic ’ s occupied territory.",
"238. The procedural obligation incumbent on the Cypriot Government under Article 2 did not include an obligation to cede part of its sovereignty and part of its legal right as a State to prosecute and try crimes committed on its territory to the authorities of a separatist local administration. Such an obligation was not compatible with the principles established in the Ilaşcu case (cited above, §§ 339-340). In that case the cooperation measures taken by the Moldovan authorities had been of a limited character and thus were not regarded as constituting support for the Transdniestrian regime. The present case was not comparable. It was not a matter of simple police cooperation. Abandonment of the principle would have undermined its efforts to re-establish control over northern Cyprus and the administration of criminal justice with regard to crimes committed on its territory not under military occupation by Turkey. A duty to cooperate could not impose an unreasonable, impossible or disproportionate burden on the authorities of the States concerned.",
"239. To the extent that the applicants relied on the European Convention on Mutual Assistance in Criminal Matters, they pointed out that assistance might be refused if the requested party considered that execution of the request was likely to prejudice the sovereignty, security, public order or other essential interests of its country. Thus they could rightly decline to hand over evidential material. Similarly, the European Convention on the Transfer of Proceedings in Criminal Matters was not relevant, as the Republic had never waived its right to prosecute and try the suspects.",
"240. As Turkey had effective control over northern Cyprus, there was a two-fold obligation on Turkey firstly to surrender the suspects, and secondly to communicate all relevant information concerning the suspects and the commission of the crime in order to assist the Republic ’ s efforts in bringing the suspects to justice. The “TRNC” authorities and Turkey, however, had failed to take any action to surrender the suspects. In particular the “TRNC” authorities had rejected a proposal by the Attorney-General of the Republic for all the evidence to be handed over to UNFICYP for it to determine whether it disclosed a prima facie case against the suspects, subject to an undertaking to surrender them if UNFICYP were to conclude that such evidence existed. Furthermore, the Turkish Government had failed to consider the extradition requests and to inform the Republic of a decision with reasons for their rejection as required by the European Convention on Extradition. Nor had they communicated any information or taken any steps to assist in any way the criminal investigation carried out by the Republic ’ s authorities. In fact the Cypriot Government had not been informed of any official investigation in northern Cyprus concerning the killings. The applicants had acknowledged this in their application to the Court. The Turkish Government had also failed to disclose to both the Court and the applicants developments in the case, and in particular, new evidence that had come to light following the statement that the first suspect gave during the murder trial of the first applicant ’ s bodyguard (see paragraphs 104-106 above ).",
"(c ) The Turkish Government",
"241. The Turkish Government submitted that the “TRNC” authorities had conducted an in-depth investigation of the case. They had carried out a thorough examination of the evidence, and several statements had been collected from the suspects, possible suspects and various witnesses, over a considerably short space of time. The “TRNC” authorities had been willing to prosecute the suspects. They believed that the Greek Cypriot authorities would be handing over evidence enabling them to proceed with a trial. Their own investigation had not produced sufficient evidence to institute criminal proceedings. All eight suspects had been arrested and held in detention. Their detention had been extended by the appropriate “TRNC” courts a number of times. However, in the absence of adequate evidence, the authorities had not been able to apply under the relevant domestic law for the suspects ’ further detention on remand. As a result, the case file remained open, with the “TRNC” Attorney-General waiting for the evidence to be submitted by the Greek Cypriot authorities. When a copy of the investigation file had been received through the Court, the “TRNC” police authorities had questioned again the first and second suspects, who had not admitted their involvement in the incident. The cooperation of the Cypriot Government was still needed in order to ensure that witnesses, including the persons who had prepared the various reports in the investigation file, appeared before the “TRNC” courts to give evidence in court.",
"242. The “TRNC” authorities had worked closely with all concerned. They had held numerous meetings with UNFICYP in their efforts to ensure cooperation and the exchange of information on the murders. Seven meetings had been held between 24 January 2005 and 5 April 2005 which had dealt exclusively or in part with the case. They had made it clear that they did not have sufficient evidence to keep the suspects in custody and had warned UNFICYP that they would have to release them if such evidence was not secured. The Cyprus authorities had flatly rejected any cooperation between the two sides on the basis that this would have amounted to the recognition of the “TRNC”.",
"243. In so far as Turkey was concerned, the Turkish authorities had been informed of the search of the suspects by Greek Cypriot Interpol and had conducted inquiries into their identities. The fifth suspect – a Turkish national – had been arrested when he had entered Turkey following notification by Greek Cypriot Interpol. He had been questioned but as the authorities had not had any evidence to link him to the crime and in the absence of any extradition requests they had released him. The fifth suspect could have been prosecuted in Turkey if the file with the evidence had been provided. The Mersin public prosecutor had also requested the “TRNC” authorities for the investigation file concerning the first four suspects in order to evaluate the case with a view to prosecuting the fifth and seventh suspects. It had, however, been impossible to obtain the file from the Greek Cypriot authorities.",
"244. The Turkish Government pointed out that cooperation with the “TRNC” did not amount to its recognition. For instance, the “TRNC” authorities had cooperated with the United Kingdom authorities in criminal matters to ensure that criminals could be tried. The Turkish Government referred to a case as an example – that of Attorney - General v. Ozgay Yorgun ( “TRNC” Nicosia Assize Court, case no. 5719/99; TRNC” Supreme Court, appeal no. 67/99) – in which the United Kingdom authorities had provided witnesses and evidence for the prosecution of the suspects.",
"245. The Turkish Government maintained that to the extent that the applicants argued that the Court should impose an additional obligation on Turkey under Article 2 to comply with the European Convention on Extradition they had misunderstood the Court ’ s case-law. The applicants were in essence inviting the Court to create new obligations which were not already provided for in the Convention but were allegedly provided for under other international instruments. However, the main issue before the Court was the application of the Convention and not that of other bilateral or international instruments.",
"246. Even if the Court had decided to broaden its interpretation of Article 2 to include obligations under the European Convention on Extradition and European Convention on Mutual Assistance in Criminal Matters, the territorial applications of these Conventions only covered the metropolitan territories of Turkey, which did not include the “TRNC” (Article 27 § 1 of the European Convention on Extradition). Turkey had not entered and could not enter into a direct agreement with two or more Contracting Parties to extend its territories to the “TRNC” (Articles 25 (1) and 27(4)). Neither the Vienna Convention of 23 May 1969 on the Law of Treaties or any other Convention gave a different interpretation of “metropolitan territories”. The ordinary meaning was clear and there was no need to look into secondary meanings. Extradition was based on treaty law and did not constitute an obligation on States in customary law.",
"247. The Turkish Government emphasised that there were two separate legal regimes: the “TRNC” and Turkey. Extradition, mutual enforcement of judgments and judicial cooperation in the “TRNC” was regulated by Law No. 43/88. Under that law the “TRNC” could not extradite its own nationals and was obliged to reject a request for the extradition of its nationals from any foreign country, including Turkey. Furthermore, the “TRNC” was obliged to refuse extradition when the crime that was the subject matter of the extradition request had been committed fully or partly within its territory or where the “TRNC” courts had jurisdiction. Under the Courts of Justice Law the “TRNC” Assize Courts had jurisdiction to try the suspects as the crime had been committed on the island of Cyprus (section 31 (1)(b)). To the extent that the applicants relied on what had been said by the Deputy Prime Minister of the “TRNC” in the meeting of 26 January 2005 with UNFICYP officials (see paragraph 141 above) concerning the possible surrender of the suspects, the Turkish Government clarified that what was meant was that the “TRNC” Attorney-General would review the evidence without excluding the possibility that the “TRNC” courts would apply other relevant domestic laws, as well as any other obligations regarding the non-extradition of citizens and human rights considerations, in order to effect this exchange. The Turkish Government stressed that the refusal of the Cypriot Government to submit the evidence gathered in the case had been based on purely policy, and not legal, grounds. The “TRNC” ‘ s decision to refuse to extradite, however, had been made on legal grounds.",
"248. In so far as Turkey was concerned, pursuant to Article 6 of the European Convention on Extradition, Turkey had the right not to extradite its own nationals. Extradition was a procedure which depended on the conditions laid down both in domestic law and the above -mentioned Convention. Each country had its own legal provisions concerning extradition.",
"249. In any event, the Turkish Government submitted that the extradition of the suspects could not have taken place for a number of reasons. Firstly, the necessary evidence had not been provided to the “TRNC” or Turkish authorities. Secondly, the extradition of the suspects for trial would have resulted in a violation of Articles 3, 5, 6 and 13 of the Convention due to the lack of proper judicial guarantees. In particular only Greek - Cypriot judges tried cases, which was contrary to the requirements of independence and impartiality under Article 6 of the Convention. Furthermore, as illustrated by Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, ECHR 2001 ‑ V, Turkish Cypriot accused persons had sometimes been harassed by the Greek Cypriot authorities.",
"250. As regards the criminal proceedings against the first and second suspects for the murder of the first applicant ’ s bodyguard the Turkish Government stated that nothing had come to light in those proceedings that could have a decisive influence on their Convention obligations in the present application. The first suspect ’ s statement regarding his co-defendant, the second suspect, had been of doubtful evidential value. It had been confusing and unclear. Furthermore, he had retracted the statement in the course of the trial. He had not made any statements to the police, and indeed the Attorney - General ’ s office when reviewing the file had concluded that even if the first suspect had not retracted his statement, there had still not been enough evidence to bring charges against those suspects who had not admitted their involvement in the crime.",
"251. To the extent that the applicants complained under Article 13, there had been no breach of this provision as it had not been possible to bring the perpetrators to justice because of the refusal of the Cypriot Government to hand over the evidence in the case.",
"(d) Third - party submissions by the AIRE Centre",
"252. The AIRE Centre noted that historically, agreements between Member States of the Council of Europe requiring cross-border cooperation in fighting crime had been intended to advance inter-governmental objectives, rather than focusing on the victim. This had been the case with the 1959 European Convention on Mutual Assistance in Criminal Matters and the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crimes.",
"253. This had, however, changed recently with the 2005 Convention on Action against Trafficking in Human Beings and the 2007 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. These Conventions had shifted the emphasis in inter-governmental cooperation in criminal matters to fulfilling States ’ obligations towards the victims of human rights violations. Both Conventions were victim-centred and mandated cross-border cooperation “to the widest extent possible”. This shift in emphasis also reflected a growing consensus amongst the Member States of the Council of Europe that inter-governmental cooperation in criminal matters had to be approached from an ECHR perspective, that is to say it had to address the rights and needs of those who were victims.",
"254. At the level of the European Union, various provisions had been adopted to ensure cross-border cooperation between Member States. There had been an evolution from an inter-governmental model of cooperation towards an approach where cooperation contributed to the fulfilment of human rights obligations. The Council of the European Union had adopted various measures designed to ensure cross-border cooperation: the European Arrest Warrant, created by Framework Decision 2002/584/ JHA, and the European Evidence Warrant, created by Framework Decision 2008 / 978 / 1JHA. Both instruments were designed to operate in such a manner as to comply with the requirements of the ECHR (recitals 13 and 27 respectively). Furthermore, they both provided for an exception to the rule of double criminality for certain offences specifically listed in the Framework Decisions. These included the offences of murder, rape, arson, and sexual exploitation of children, which involved acts contrary to Articles 2, 3, 4 and 8 of the Convention. Such acts created obligations for the State on whose territory the crime had been committed, but also for the State within whose jurisdiction evidence or persons crucial to an effective investigation could be found. The AIRE Centre submitted that the positive obligations arising under the above -mentioned instruments mandated some level of confidence on the part of Contracting Parties either between each other or with other States so as to make essential cooperation in investigating acts contrary to those Articles possible. This was necessary to ensure that the rights guaranteed under the Convention were not theoretical and illusory but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000- VII). European Union law demonstrated a developing European consensus that inter-governmental cooperation in criminal matters had to be approached from a human rights perspective.",
"255. The AIRE Centre highlighted the numerous international law instruments providing for cross-border cooperation in criminal matters inside or outside of Europe. These included the United Nations Convention Against Transnational Organized Crime (2000), to which both Cyprus and Turkey were parties; the Inter-American Convention on Mutual Assistance in Criminal Matters (1992) and Additional Protocol (1993); the Inter-American Convention on the Taking of Evidence Abroad (1975) and Additional Protocol (1984); the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters (2004); the Economic Community of West African States Convention on Mutual Assistance in Criminal Matters (1992); and the Mutual Assistance Pact between Member States of the Economic Community of Central African States (2002).",
"256. In conclusion, the AIRE Centre underlined the prevalence in European and international law of agreements relating to mutual assistance in criminal investigations. In Europe in particular there appeared to be a trend requiring cross-border cooperation when the offences raised issues under Articles 2, 3 and/or 4 of the Convention. This trend placed obligations on States to investigate such offences which had taken place outside their jurisdiction, if persons or evidence of importance to the investigation were within their territory.",
"2. The Court ’ s assessment",
"(a) General principles",
"257. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “ secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015 ).",
"258. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (ibid. , § 171).",
"259. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible ( ibid. , § 172). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. This obligation may include taking steps to secure relevant evidence located in other jurisdictions (see Rantsev, cited above §§ 241 and 245) or where the perpetrators are outside its jurisdiction, to seek their extradition (see Agache and Others v. Romania, no. 2712/02, § 83, 20 October 2009; see also, in relation to Article 3, Nasr and Ghali v. Italy, no. 44883/09, §§ 270-272, 23 February 2016).",
"260. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible will risk falling short of this standard (see Nachova, cited above, § 113 ).",
"261. The procedural obligation also requires that persons responsible for the investigations should be independent of anyone implicated or likely to be implicated in the events ( Mustafa Tunç, cited above, § 177); it imposes a requirement of promptness and reasonable expedition (ibid. , § 178); and in addition, it means that the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests (ibid. , § 179).",
"(b) Application of the general principles to the present case",
"262. As the applicants ’ relatives ’ deaths took place in the territory controlled by the Republic of Cyprus and under that State ’ s jurisdiction, a procedural obligation arises in respect of Cyprus to investigate the death of the applicants ’ relatives. Furthermore, the Court has already ruled that Turkey ’ s procedural obligation is also engaged in the circumstances of the case (see paragraphs 187 and 189 above).",
"263. As observed above two parallel investigations were conducted into the killing of the applicants ’ relatives by the authorities of the Cypriot Government and the Turkish Government, including those of the “TRNC” (see paragraph 215 above). The applicants ’ complaint under Article 2 is twofold: firstly, they have a number of grievances concerning the respective investigations; secondly, they complain about the failure of respondent Governments to cooperate, resulting in an impasse in both their investigations and as a result in the investigation of the case as a whole.",
"(i) The respective investigations",
"264. The Court will first address the applicants ’ criticisms of the respective investigations carried out by the authorities of the respondent States. It notes at the outset that the applicants have not called into question the independence of the investigations and that on the basis of the material before it no such issue arises.",
"( α ) Cyprus",
"265. It is undisputed that the investigation into the killing of the applicants ’ relatives started promptly and that numerous urgent and indispensable investigative steps were taken immediately upon the discovery of the victims ’ bodies. The police arrived quickly and sealed off the scene. A detailed on-the- spot investigation was conducted by the police and a forensic pathologist. An investigation was held on the same day at the victims ’ house, which was also secured and sealed off. Video recordings were made and photographs were taken during both on ‑ site inspections. Complete post-mortem examinations, during which photographs were taken and a video recording and a diary of action were made, were conducted the next day to determine the cause of the victims ’ death (see paragraphs 13 - 20 above).",
"266. In the framework of the investigation the Cypriot authorities, inter alia, collected and secured evidence, took statements from numerous witnesses, including the victims ’ relatives, carried out a ballistic examination and DNA tests, searched the records of vehicles that had gone through the crossing points, and examined the security system of the victims ’ house and computer hard discs (see paragraphs 21, 26, 28, 30 and 44 above). The investigative steps quickly led to the identification of eight suspects, the issuance of domestic and European arrest warrants and the publication of Red Notices following requests by the Cypriot police to Interpol (see paragraphs 27, 31, 35, 37 - 40 above ). The suspects were all added to the Cypriot Government ’ s “ stop list ” (see paragraphs 32 and 42 above ). It appears from the documents in the case file that the investigation was extended to the British bases and areas not controlled by the Cypriot Government (see paragraph 47 above).",
"267. On 24 April 2008 the case file was classified as “ otherwise disposed of” pending the arrests of the remaining suspects (see paragraphs 48 and 49 above ).",
"268. Following this, on 19 May 200 8, the case was transferred to the coroner and inquest proceedings were opened (see paragraph 50 above ). Despite contradictory submissions as to what happened at the first hearing, it is not contested that the applicants were informed of the inquest which the first applicant attended and that they were informed of the outcome (see paragraphs 50 and 120 above ).",
"269. The authorities arrested the eighth suspect when he crossed over to the Government controlled areas on 12 July 200 6 but had to release him for lack of evidence linking him to the crime. According to the police report, some of the allegations that had been made by him during questioning required further investigation in the “TRNC ” (see paragraph 45 above ).",
"270. The last step taken by the Cypriot authorities was on 4 November 2008, when extradition requests were made to Turkey concerning the six persons that remained suspects in the case (see paragraphs 55 - 57 above). No further steps have been taken since then pending the suspects ’ arrest.",
"271. The applicants ’ grievances against the Cypriot authorities in so far as their investigation is taken in isolation are twofold : they concern the extradition requests and the applicants ’ access to the investigation documents.",
"272. First, the applicants questioned whether the extradition requests had been made properly and complained about the delay on the part of the Cypriot authorities in making them. The Court notes that there is no indication that the requests were not made correctly or through the right channels. It is true that they were made more than three and half years after the issuance of the Red Notices. However, in the context of this particular case, this did not constitute any significant obstacle. It was clear very early on, following the publication of the Red Notices, that neither the Turkish nor the “TRNC” authorities were intending to surrender the suspects (see paragraphs 41, 127, 130 and 150 above). The extradition requests were simply returned to the Cypriot authorities without reply. Although both respondent States are Member States to the European Convention on Extradition there was no extradition treaty between them ( contrast Nasr and Ghali, cited above, § 271, 23 February 2016). Nor can the Cypriot Government be held liable for Turkey ’ s refusal to extradite (see Nježić and Štimac v. Croatia, no. 29823/13, § 65, 9 April 2015, and Palić v. Bosnia and Herzegovina, no. 4704/04, § 68, 15 February 2011).",
"273. Second, the applicants complained that the Cypriot authorities had not provided them with the evidence they had collected in the case, including all witness statements taken during the investigation. The Court reiterates that Article 2 does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step ( see, for example, Gürtekin and Others v. Cyprus, (dec.) nos. 60441/13 et al., § 29, 11 March 2014, and Charalambous and Others v. Turkey (dec.), nos. 46744/07 et al. , § 64, both with further references). It emphasises in this respect that disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and, therefore, cannot be regarded as an automatic requirement under Article 2 (see Gürtekin, § 29, cited above, and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 347, ECHR 2007 ‑ II). Similarly, the investigating authorities cannot be required to indulge every wish of a surviving relative as regards investigative measures ( ibid., § 348, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009). However, the Court must examine whether the applicants were afforded access to the investigation to the extent necessary to safeguard their legitimate interests (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 311, ECHR 2011 (extracts) ).",
"274. As can be seen from the material in the case file, the applicants were involved in the investigation from the very beginning. Meetings were held with the Cypriot police and the Attorney-General and the applicants received information from them (see paragraphs 44, 107 - 108, 111 - 112 and 114 - 116 above). They were informed of the progress in the investigation and of the inquest proceedings, which the first applicant attended (see paragraphs 50 and 120 ). They also received a police report about the case upon their request (see paragraph 117 above). The Court is thus not persuaded in the present case that the applicants were excluded from the investigative process to such a degree as would infringe the minimum standard under Article 2.",
"275. In reality the applicants ’ grievance stems from the refusal of the Cypriot authorities to transmit the case file to the “TRNC” authorities and their wish to remedy the situation. It is therefore intertwined with their complaint concerning lack of cooperation and will be examined in that context.",
"( β ) Turkey",
"276. The “TRNC” authorities reacted quickly following news of the murders and opened an investigation immediately on 17 January 2005, when the victims ’ bodies were taken to the “TRNC”. A statement was taken from the first applicant (see paragraph 64 above ). By the end of January 2005 all the suspects had been arrested on the basis of arrest warrants issued by the relevant “TRNC” district courts ( see paragraphs 65 - 87 above). The houses of the seven suspects who lived in the “TRNC” were searched on the basis of search warrants (see paragraphs 72 and 82 above). Statements were taken from the suspects, who were remanded in custody until their release on or around 11 February 2005 due to lack of evidence connecting them to the murders (see paragraph 92 above). The “TRNC” authorities also questioned another person whom they had identified as another possible suspect ( see paragraph 95 above). During the investigation statements were taken from the suspects and the applicants, as well as other persons who knew or were somehow connected to the suspects. Evidence was also collected (see paragraph 97 above).",
"277. Following his release from detention in the “TRNC”, the fifth suspect was arrested and questioned in Turkey on 15 February 2005. He was subsequently released, as the Turkish authorities did not have enough evidence to link him to the crime (see paragraph 94 above ).",
"278. Following the suspects ’ release, very few steps were taken by the “TRNC” authorities. Sometime after 22 March 2007 the file was classified as “non- resolved for the time being ” (see paragraphs 99 - 100 above). After that, nothing happened until February 2010, when the first and second suspects were questioned again by the “TRNC” police; the authorities subsequently received a copy of the Cypriot investigation file through the Court. This, however, did not lead to anything (see paragraph 102 above). Furthermore, following a statement made by the first suspect during his and the second suspect ’ s trial for the murder of the first applicant ’ s bodyguard, the “TRNC” Attorney-General reviewed the investigation file but there was still not enough other evidence to justify prosecution ( see paragraphs 104 - 105 above).",
"279. The applicants complained that the “TRNC” authorities had refused to investigate or prosecute the suspects. They also complained of a failure on the part of the “TRNC” authorities to take any steps, firstly when they had eventually obtained a copy of the file through the Court and secondly in respect of new evidence that had come to light during the trial of the first and second suspects in the above -mentioned proceedings (see paragraph 278 above).",
"280. It is evident from the material provided that the “TRNC” authorities carried out a substantial amount of work; thus, the Court finds little substance in the applicants ’ claim that they refused to investigate. They arrested and detained all suspects; even though the first four suspects were originally arrested in respect of charges related to theft and forgery, those charges were amended to premeditated murder (see paragraphs 65, 67, 68, 71, 74 and 75 above). The investigation did not result in any prosecutions because of a lack of evidence. Whilst it must be frustrating for the applicants that suspects were identified, arrested, questioned and then released, Article 2 cannot be interpreted as imposing a requirement on the authorities to launch a prosecution irrespective of the evidence which is available ( Nježić and Štimac, § 69, and Gürtekin, § 27, both cited above ). As the Court has held on numerous occasions, the procedural obligation under Article 2 is not an obligation of result, but of means (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016). In this connection the Court notes that the suspects all denied involvement in the crime and the investigation carried out did not result in evidence linking them to the crime. Furthermore, although certain steps were taken by the “TRNC” authorities following the communication of the case and the trial of the first and second suspects, these did not lead to solid new evidence on which to base a prosecution. The “TRNC” and Turkish authorities had limited evidence at hand, as the crime was committed in the territory controlled by the Cypriot Government. In order to prosecute the suspects, the “TRNC” and Turkish authorities needed reliable evidence that would be admissible in a court.",
"(γ) Conclusion",
"281. It is clear from the above that the authorities of the respondent States took a significant number of investigative steps promptly. The Court perceives no shortcomings that might call into question the overall adequacy of the respective investigations in themselves. The Court considers, however, that there is no need to make a finding under Article 2 on this matter, in view of the following.",
"( ii ) The procedural obligation and the lack of cooperation between the respondent States",
"282. The Court observes that both investigations reached a stalemate and the respective files were held in abeyance, pending further developments. Following the return of the extradition requests by Turkey on 24 November 2008 the Cypriot investigation came to a complete halt; the Cypriot Government still await the re-arrest and surrender of the suspects so they can try them. Similarly, the “TRNC” classified the file as “non-resolved for the time being” some time in 2007. Since then nothing concrete has been done. Although the first and second suspects were questioned again in 2010 this did not lead to anything. The Turkish Government are still waiting for all the evidence in the case to be handed over so they can try the suspects. Consequently, although the investigations remain open nothing has happened for more than eight years. All efforts through UNFICYP have proved fruitless due to the persistence of the respondent States in maintaining their respective positions.",
"283. There have been a few cases in which the Court has considered the extent of the procedural obligation in a cross-border or transnational/ transjurisdictional context.",
"284. In O ’ Loughlin (cited above) the applicants complained under Article 2 of the Convention that the United Kingdom authorities had failed to assist in the investigations and the inquests carried out in Ireland into the deaths resulting from the Dublin and Monaghan bombings of 17 May 1974. The suspects were in Northern Ireland. The Court stated that it did not have to decide whether, or to what extent, Article 2 could impose an obligation on one Contracting State to cooperate with inquiries or hearings conducted within the jurisdiction of another Contracting State concerning the use of unlawful force resulting in death, as the relevant complaint had been filed outside the six-month time-limit. Shortly afterwards, in Cummins (cited above), which concerned bombings in Dublin in December 1972 and January 1973, the Court declared similar complaints against the United Kingdom to be manifestly ill-founded, as a failure to cooperate with the investigations into the deaths and injuries had not been established. Since these decisions, in its judgment in Rantsev, the Court found that the corollary of the obligation on an investigating State to secure evidence located in other jurisdictions was a duty on the State where evidence was located to render any assistance within its competence and means sought under a legal assistance request by the State in which the death occurred ( Rantsev, cited above, § 245). It therefore found that the procedural obligation under Article 2 required the Cypriot authorities to seek assistance from Russia and that Russia had a corresponding obligation to assist the Cypriot authorities due to the fact that certain evidence had been located on its territory. The Court has therefore acknowledged that the procedural obligation under Article 2 mandates cooperation between states in securing available evidence.",
"285. The Court reiterates that in assessing whether there has been a violation of Article 2 in its procedural aspect, it will examine if the domestic authorities have done all that could be reasonably expected of them in the circumstances of the particular case (see, for example, Nježić and Štimac, cited above, § 68 ). In circumstances such as those of the present case, where the investigation of the unlawful killing unavoidably implicates more than one State, the Court finds that this entails an obligation on the part of the respondent States concerned to cooperate effectively and take all reasonable steps necessary to this end in order to facilitate and realise an effective investigation into the case overall. Such a duty is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Nachova, cited above, § 93). Indeed, any other finding would severely diminish the purpose of the protection guaranteed by Article 2 and render illusory the guarantees in respect of an individual ’ s right to life as any real possibility of elucidating the circumstances of the killing and bringing the perpetrators to justice would be hampered and lead to impunity for those responsible. The Convention is a system for the protection of human rights and it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory (see Varnava, cited above, § 160).",
"286. This is also consistent with the position taken by the relevant Council of Europe instruments which mandate inter-governmental cooperation in order to prevent and combat transnational crimes more effectively and to punish the perpetrators. The Court reiterates in this respect that it has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. The Court further observes that it has always referred to the “living” nature of the Convention, which must be interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and international law in its interpretation of Convention provisions (see Rantsev, cited above, §§ 273-74 and Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 6 5-68, 12 November 2008).",
"287. The nature and scope of the cooperation required by the States involved in meeting their procedural obligation under Article 2 will, inevitably, depend on the circumstances of the particular case.",
"288. To begin with, the Court stresses that it is not competent to review the Contracting Parties ’ compliance with instruments other than the European Convention on Human Rights and its Protocols, even if other international treaties may provide it with a source of inspiration it has no jurisdiction to interpret the provisions of such instruments (see Mihailov v. Bulgaria, no. 52367/99, § 3 3, 21 July 2005). It has no competence, therefore, to determine whether the respondent States have complied with their obligations under the European Convention on Extradition and the European Convention on Mutual Assistance, as the applicants suggest.",
"289. Furthermore, it is not for the Court to indicate which measures the authorities should take in order for the respondent States to comply with their obligations most effectively. The Court ’ s role is to verify that the measures actually taken were appropriate and sufficient in the circumstances of the case before it. It is not therefore for the Court to decide where the trial of the suspects should have taken place or to impose an obligation on a Member State to extradite. When faced with a partial or total failure to act, the Court ’ s task is to determine to what extent a minimum effort was possible and whether it should have been made ( see Ilaşcu, cited above, § 334).",
"290. It is clear from all the material before the Court, including the 2005 UN Secretary-General ’ s report on the UN operation in Cyprus (see paragraph 153 above ), that the respondent Governments were not prepared to make any compromise on their positions and find middle ground. This position arose from political considerations which reflect the long-standing and intense political dispute between the Republic of Cyprus and Turkey (see, mutatis mutandis, Demopoulos, cited above, § 83).",
"291. On the Cypriot Government ’ s side it is evident that what drove the unwillingness to cooperate was the refusal to lend (or the fear of lending ) any legitimacy to the “TRNC”. However, the Court does not accept that steps taken with the aim of cooperation in order to further the investigation in this case would amount to recognition, implied or otherwise of the “TRNC” (see Cyprus v. Turkey, cited above, §§ 61 and 238 ). Nor would it be tantamount to holding that Turkey wields internationally recognised sovereignty over northern Cyprus (see, mutatis mutandis, Demopoulos, cited above, §§ 95-96, and Foka v. Turkey, no. 28940/95, § § 83 -84, 24 June 2008 ). The United Kingdom, for example, has cooperated in criminal cases with the “TRNC” (see paragraphs 150 and 244 above) without affording it any recognition.",
"292. On the other hand, as the Government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see Cyprus v. Turkey, cited above, §§ 14, 61 and 90), it finds it striking that the extradition requests made by the Cypriot Government were ignored by the Turkish Government, who have remained silent on the matter.",
"293. Although the respondent States had the opportunity to find a solution and come to an agreement under the brokerage of UNFICYP, they did not use that opportunity to the full. Any suggestions made in an effort to find a compromise solution or that the authorities concerned meet each other half way were met with downright refusal on the part of those authorities. The options put forward have included meetings on neutral territory between the Cypriot and “TRNC” police, UNFICYP and the Sovereign Base Areas police, the questioning of the suspects through “ the video recording interview method ” at the Ledra Palace Hotel in the UN buffer zone, the possibility of an ad hoc arrangement or trial at a neutral venue, the exchange of evidence (under certain conditions), and dealing with the issue on a technical services level (see paragraphs 131 - 133, 136, 137, 140 and 151 above). While a number of bi-communal working groups and technical committees have been set up – including one on criminal matters (see paragraphs 154 - 156 above) – it appears that none of these committees has taken up the present case with the purpose of furthering the investigation.",
"294. As a result of the respondent States ’ failure to cooperate, their respective investigations remain open and nothing has been done for more than eight years. In that regard, the Court would stress that the passage of time inevitably erodes the amount and quality of evidence available and the appearance of a lack of diligence casts doubt on the good faith of the investigative efforts (see Trubnikov v. Russia, no. 49790/99, § 92, 5 July 2005). Moreover, the very passage of time is liable to compromise the chances of investigation being completed (see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also prolongs the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II).",
"295. In the present, ultimately straightforward, case a considerable amount of evidence was collected and eight suspects were quickly identified, traced and arrested. The failure to cooperate directly or through UNFICYP resulted in their release. If there had been cooperation, in line with the procedural obligation under Article 2, criminal proceedings may have ensued against one or more of the suspects or the investigation may have come to a proper conclusion.",
"296. In view of the above, the Court finds that there has been a violation of Article 2 of the Convention under its procedural aspect by virtue of the failure of the respondent Governments to cooperate.",
"297. Having regard to the above conclusion, the Court is of the opinion that there is no need to examine separately the applicants ’ complaint under Article 13 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"298. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. Pecuniary damage",
"(a) The parties ’ submissions",
"(i) The applicants",
"299. The applicants claimed 40,000 euros (EUR) in respect of pecuniary damage. This sum represented the expenses incurred by the first applicant to protect his life : home security, the employment of a bodyguard ( who was murdered in 2009 ), travel expenses in respect of trips abroad following the attempt on his life and legal expenses incurred in proceedings that were brought against him for possessing a firearm in defence of his person. The applicants submitted that the above -mentioned sum had been calculated on “a rough and ready basis”, as they did not have any documents proving the expenses claimed.",
"(ii) The Cypriot Government",
"300. The Cypriot Government did not comment on this head of claim.",
"(iii) The Turkish Government",
"301. The Turkish Government submitted that there was no causal connection between the pecuniary damage claimed and the subject matter of the application, which had nothing to do with the first applicant ’ s right to life.",
"(b) The Court ’ s assessment",
"302. The Court finds that the applicants ’ claim for pecuniary damage is unsubstantiated. It therefore rejects this claim.",
"2. Non-pecuniary damage",
"(a) The parties ’ submissions",
"(i) The applicants",
"303. In respect of non-pecuniary damage the applicants claimed the total sum of EUR 8 00,000 – EUR 4 0 0,000 from each respondent Government. This sum was composed of a claim in respect of each Government for EUR 100,000 by the first applicant and EUR 50,000 by each of the other applicants.",
"304. The applicants stressed how much unbearable anguish, pain, trauma and frustration they had suffered due to the gravity of the crime against their family and the failure of the authorities of the respondent Governments to cooperate and bring the perpetrators to justice. The applicants underlined that they had been treated with utter insensitivity and indifference. They invited the Court to condemn the callous attitude of the respondent Governments through the award of a substantial amount, even though this could not make up for the huge loss they had suffered. Furthermore, as a result of the respondent Governments ’ failure to investigate, apprehend, prosecute and punish those responsible for the murders, all the applicants, and in particular the first applicant, feared for their lives and lived in a permanent state of fear and anxiety. There had been an attempt on the first applicant ’ s life and his bodyguard had been murdered. He had also had to act as a conduit between the various authorities in the days and months immediately after the killings as they had not been cooperating. It was for these reasons that the first applicant ’ s claim under this head was higher.",
"(ii) The Cypriot Government",
"305. The Cypriot Government contested the applicants ’ claims and submitted that they were excessive, bearing in mind the Court ’ s case-law. In this connection they referred to the case of Rantsev (cited above, § 342 ).",
"(iii) The Turkish Government",
"306. In the Turkish Government ’ s submission the Court should refuse to make any award in respect of non-pecuniary damage as there was no violation to be compensated for. If the Court, however, were to find otherwise the finding of a violation would constitute in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage. In any event, any just satisfaction should not lead to unjust enrichment. The sums claimed by the applicants were excessive, unjust and not compatible with those awarded by the Court in similar cases. They drew the Court ’ s attention to the amounts awarded in the cases of Solomou and Others v. Turkey, no. 36832/97, § 101, 24 June 2008, Isaak v. Turkey, no. 44587/98, § 139, 24 June 2008, and Kakoulli v. Turkey, no. 38595/97, § 140, 22 November 2005 ).",
"(b) The Court ’ s assessment",
"307. The Court notes that it has found a violation of Article 2 under its procedural head on account of the Respondent Governments ’ failure to cooperate and thus provide an effective investigation into the death of the applicants ’ relatives. It also notes that it has found that no separate issue arises under Article 13 of the Convention.",
"308. As a result of the violation found the applicants suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.",
"309. Regard being had to the reasons for which it has found a violation and the circumstances of the case, the Court, ruling on an equitable basis, as required by Article 41 of the Convention, decides that an award of EUR 8, 5 00 should be paid by each respondent Government to each of the applicants, plus any tax that may be chargeable on these amounts.",
"B. Costs and expenses",
"1. The parties ’ submissions",
"(a) The applicants",
"310. The applicants claimed a total of 40,000 pounds sterling (GBP) in respect of their lawyers ’ fees. The applicants submitted that this was the amount they had agreed upon with their lawyers and produced a letter of engagement (in which their lawyers ’ fee was stipulated) dated 5 December 2005, which had been signed by the fourth applicant. According to this agreement, the above -mentioned amount was broken down as follows: a fee of GBP 20,000 for all the work carried out by their representatives before the authorities of the respondent Governments and UNFICYP; and the total sum of GBP 20,000 for the costs and expenses incurred before the Court in the event that an application was made. In this respect, the agreement stipulated that each stage of the proceedings would cost a total of GBP 7,000: the first stage comprised the filing of the application; the second stage comprised work to be done for the preparation of pleadings in the event that the application was declared admissible and for any negotiations for a friendly settlement; the third stage, failing a settlement, comprised the preparation of the observations and/or representation at a hearing of the case. The total of GBP 21,000 was rounded down to GBP 20,000. No VAT would be chargeable.",
"(b) The Cypriot Government",
"311. The Cypriot Government submitted that the applicants claimed costs which had not been necessarily incurred, were not reasonable as to quantum and were not substantiated by receipts. They therefore considered that their claim under this head should be rejected.",
"(c) The Turkish Government",
"312. The Turkish Government submitted that the amounts claimed on the basis of the fee agreement were speculative or abstract and unsubstantiated. No timetable accounting for the actual work carried out had been submitted, and neither had any receipts or documents proving these costs been submitted. They referred to the Court ’ s judgment in Mohd v. Greece (no. 11919/03, §§ 29-32, 27 April 2006). In any event, the applicants could not claim costs incurred at the domestic level, while the amount claimed in respect of lodging the application form before the Court was excessive.",
"2. The Court ’ s assessment",
"313. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Rule 60 of the Rules of Court further requires that an applicant submit itemised particulars of all claims, together with any relevant supporting documents.",
"314. The Court notes that the fee agreement, which was signed only by the fourth applicant before the lodging of the application, only refers to aggregate sums that have not been itemised. No reference is made to the specific work actually carried out, the number of hours worked and the hourly rate charged. The applicants have failed to provide any other supporting documents – such as itemised bills or invoices – substantiating their claim.",
"315. The Court accordingly makes no award under this head.",
"C. Default interest",
"316. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
23 | Marckx v. Belgium | 13 June 1979 | An unmarried Belgian mother complained that she and her daughter were denied rights accorded to married mothers and their children: among other things, she had to recognise her child (or bring legal proceedings) to establish affiliation (married mothers could rely on the birth certificate); recognition restricted her ability to bequeath property to her child and did not create a legal bond between the child and mother’s family, her grandmother and aunt. Only by marrying and then adopting her own daughter (or going through a legitimation process) would she have ensured that she had the same rights as a legitimate child. | The Court held in particular that there had been a violation of Article 8 (right to respect for private and family life) of the Convention taken alone, and a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 8, regarding both applicants, concerning the establishment of the second applicant’s maternal affiliation, the lack of a legal bond with her mother’s family and her inheritance rights and her mother’s freedom to choose how to dispose of her property. A bill to erase differences in treatment between children of married and unmarried parents was going through the Belgian Parliament at the time of the judgment. | Children’s rights | Affiliation- and inheritance-related rights | [
"A. Particular circumstances of the case",
"8. Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession.",
"Paula Marckx duly reported Alexandra ’ s birth to the Wilrijk registration officer who informed the District Judge ( juge de paix ) as is required by Article 57 bis of the Belgian Civil Code (\"the Civil Code\") in the case of \"illegitimate\" children.",
"9. On 26 October 1973, the District Judge of the first district of Antwerp summoned Paula Marckx to appear before him (Article 405) so as to obtain from her the information required to make arrangements for Alexandra ’ s guardianship; at the same time, he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition (see paragraph 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns \"exceptional\" forms of inheritance (successions\" irrégulières \").",
"10. On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra ’ s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra ’ s interests various measures provided for by law.",
"11. On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974.",
"12. At the time of her application to the Commission, Ms. Paula Marckx ’ s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx.",
"13. The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an \"illegitimate\" child and on the effects of establishing such affiliation as regards both the extent of the child ’ s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights.",
"B. Current law",
"1. Establishment of the maternal affiliation of an \"illegitimate\" child",
"14. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman ’ s children (Article 319 of the Civil Code), the maternal affiliation of an \"illegitimate\" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose (action en recherche de maternité ).",
"Nevertheless, an unrecognised \"illegitimate\" child bears his mother ’ s name which must appear on the birth certificate (Article 57). The appointment of his guardian is a matter for the family council which is presided over by the District Judge.",
"Under Article 334, recognition, \"if not inserted in the birth certificate, shall be effected by a formal deed\". Recognition is declaratory and not attributive: it does not create but records the child ’ s status and is retroactive to the date of birth. However, it does not necessarily follow that the person effecting recognition is actually the child ’ s mother; on the contrary, any interested party may claim that the recognition does not correspond to the truth (Article 339). Many unmarried mothers - about 25 % according to the Government, although the applicants consider this an exaggerated figure - do not recognise their child.",
"Proceedings to establish maternal affiliation (action en recherche de maternité ) may be instituted by the child within five years from his attainment of majority or, whilst he is still a minor, by his legal representative with the consent of the family council (Articles 341a-341c of the Civil Code).",
"2. Effects of the establishment of maternal affiliation",
"15. The establishment of the maternal affiliation of an \"illegitimate\" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions.",
"a. The extent of family relationships",
"16. In the context of the maternal affiliation of an \"illegitimate\" child, Belgian legislation does not employ the concepts of \"family\" and \"relative\". Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother ’ s family. The law excludes it from that family as regards inheritance rights on intestacy (see paragraph 17 below). Furthermore, if the child ’ s parents are dead or under an incapacity, he cannot marry, before attaining the age of twenty-one, without consent which has to be given by his guardian (Article 159 of the Civil Code) and not, as is the case for a \"legitimate\" child, by his grandparents (Article 150); the law does not expressly create any maintenance obligations, etc., between the child and his grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Articles 161 and 162). According to a judgment of 22 September 1966 of the Belgian Court of Cassation (Pasicrisie I, 1967, pp 78-79), these texts \"place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection, respect and devotion that are the consequence of consanguinity ... (which) creates an obligation for the ascendants to take an interest in their descendants and, as a corollary, gives them the right, whenever this is not excluded by the law, to know and protect them and exercise over them the influence dictated by affection and devotion\". The Court of Cassation deduced from this that grandparents were entitled to a right of access to the child.",
"(b) Rights of a child born out of wedlock and of his mother in the matter of inheritance on intestacy and voluntary dispositions",
"17. A recognised \"illegitimate\" child ’ s rights of inheritance on intestacy are less than those of a \"legitimate\" child. As appears from Articles 338, 724, 756 to 758, 760, 761, 769 to 773 and 913 of the Civil Code, a recognised \"illegitimate\" child does not have, in the estate of his parent who dies intestate, the status of heir but solely that of \"exceptional heir\" (\" successeur irrégulier \"): he has to seek a court order putting him in possession of the estate (envoi en possession). He is the sole beneficiary of his deceased mother ’ s estate only if she leaves no relatives entitled to inherit (Article 758); otherwise, its maximum entitlement - which arises when his mother leaves no descendants, ascendants, brothers or sisters – is three-quarters of the share which he would have taken if \"legitimate\" (Article 757). Furthermore, his mother may, during her lifetime, reduce that entitlement by one-half. Finally, Article 756 denies to the \"illegitimate\" child any rights on intestacy in the estates of his mother ’ s relatives.",
"18. Recognised \"illegitimate\" children are also at a disadvantage as regards voluntary dispositions, since Article 908 provides that they \"may receive by disposition inter vivos or by will no more than their entitlement under the title ‘ Inheritance on Intestacy ’ \".",
"Conversely, the mother of such a child, unless she has no relatives entitled to inherit, may give in her lifetime or bequeath to him only part of her property. On the other hand, if the child ’ s affiliation has not been established, the mother may so give or bequeath to him the whole of her property, provided that there are no heirs entitled to a reserved portion of her estate ( héritiers réservataires ). The mother is thus faced with the following alternative: either she recognises the child and loses the possibility of leaving all her estate to him; or she renounces establishing with him a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to him just as she might to a stranger.",
"3. Adoption of \"illegitimate\" children by their mother",
"19. If the mother of a recognised\" illegitimate\" child remains unmarried, she has but one means of improving his status, namely, \"simple\" adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child acquires over the adopter ’ s estate the rights of a \"legitimate\" child but, unlike the latter, has no rights on intestacy in the estates of his mother ’ s relatives (Article 365).",
"Only legitimation (Articles 331-33 3) and legitimation by adoption (Articles 368-370) place an \"illegitimate\" child on exactly the same footing as a \"legitimate\" child; both of these measures presuppose the mother ’ s marriage.",
"C. The Bill submitted to the Senate on 15 February 1978",
"20. Belgium has signed, but not yet ratified, the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children, which was prepared by the International Commission on Civil Status and entered into force on 23 April 1964. Neither has Belgium yet ratified, nor even signed, the Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, which was concluded within the Council of Europe and entered into force on 11 August 1978. Both of these instruments are based on the principle \"mater semper certa est\"; the second of them also regulates such questions as maintenance obligations, parental authority and rights of succession.",
"21. However, the Belgian Government submitted to the Senate on 15 February 1978 a Bill to which they referred the Court in their memorial of 3 July 1978 and subsequently at the hearings on 24 October. The official statement of reasons accompanying the Bill, which mentions, inter alia, the Conventions of 1962 and 1975 cited above, states that the Bill \"seeks to institute equality in law between all children\". In particular, maternal affiliation would be established on the mother ’ s name being entered on the birth certificate, which would introduce into Belgian law the principle \"mater semper certa est\". Recognition by an unmarried mother would accordingly no longer be necessary, unless there were no such entry. Furthermore, the Civil Code would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions."
] | [
"PROCEEDINGS BEFORE THE COMMISSION",
"22. The essence of the applicants ’ allegations before the Commission was as follows:",
"- as an \"illegitimate\" child, Alexandra Marckx is the victim, as a result of certain provisions of the Belgian Civil Code, of a \"capitis deminutio\" incompatible with Articles 3 and 8 (art. 3, art. 8) of the Convention;",
"- this \"capitis deminutio\" also violates the said Articles (art. 3, art. 8) with respect to Paula Marckx;",
"- there are instances of discrimination, contrary to Article 14 taken in conjunction with Article 8 (art. 14+8), between \"legitimate\" and \"illegitimate\" children and between unmarried and married mothers;",
"- the fact that an \"illegitimate\" child may be recognised by any man, even if he is not the father, violates Articles 3, 8 and 14 (art. 3, art. 8, art. 14);",
"- Article 1 of Protocol No. 1 (P1-1) is violated by reason of the fact that an unmarried mother is not free to dispose of her property in favour of her child.",
"23. By partial decision of 16 March 1975, the Commission declared the penultimate complaint inadmissible. On 29 September 1975, it accepted the remainder of the application and also decided to take into consideration ex officio Article 12 (art. 12) of the Convention.",
"In its report of 10 December 1977, the Commission expresses the opinion:",
"- by ten votes to four, \"that the situation\" complained of \"constitutes a violation of Article 8 (art. 8) of the Convention with respect to the illegitimate child\" as far as, firstly, the \"principle of recognition and the procedure for recognition\" and, secondly, the \"effects\" of recognition are concerned;",
"- by nine votes to four with one abstention, that the \"simple\" adoption of Alexandra by her mother \"has not remedied\" the situation complained of in that \"it maintains an improper restriction on the concept of family life\", with the result that \"the position complained of constitutes a violation of Article 8 (art. 8) with respect to the applicants\";",
"- by twelve votes with two abstentions, \"that the legislation as applied constitutes a violation of Article 8 in conjunction with Article 14 (art. 14+8) with respect to the applicants\";",
"- by nine votes to six, that the \"Belgian legislation as applied violates Article 1 of the First Protocol in conjunction with Article 14 (art. 14+P1-1) of the Convention\" with respect to the first, but not to the second, applicant;",
"- that it is not \"necessary\" to examine the case under Article 3 (art. 3) of the Convention;",
"- unanimously, that \"Article 12 (art. 12) is not relevant\".",
"The report contains one separate opinion.",
"FINAL SUBMISSIONS MADE TO THE COURT",
"24. At the hearings on 24 October 1978, the Government confirmed the submission appearing in their memorial, namely:",
"\"That the Court should decide that the facts related by the Commission in its report do not disclose a violation by the Belgian State, in the case of the applicants Paula and Alexandra Marckx, of the obligations imposed by the Convention.\"",
"The Delegates of the Commission, for their part, made the following submission at the hearings:",
"\"May it please the Court to decide whether the Belgian legislation complained of violates, in the case of the applicants, the rights guaranteed to them by Article 8 of the Convention and Article 1 of Protocol No. 1 (art. 8, P1-1), taken alone or in conjunction with Article 14 (art. 14+8, art. 14+P1-1) of the Convention.\"",
"AS TO THE LAW",
"I. ON THE GOVERNMENT ’ S PRELIMINARY PLEA",
"25. The application of the Civil Code provisions concerning children born out of wedlock and unmarried mothers is alleged by the applicants to contravene, with respect to them, Articles 3, 8, 12 and 14 (art. 3, art. 8, art. 12, art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).",
"26. In reply, the Government firstly contend - if not by way of an objection of lack of jurisdiction or inadmissibility as such, at least by way of a preliminary plea - that the issues raised by the applicants are essentially theoretical in their case. The Government illustrate this by the following points: the child Alexandra Marckx did not suffer from the fact that her maternal affiliation was not established as soon as she was born (16 October 1973) but only thirteen days later, when she was recognised, since at the time she was unaware of the circumstances of her birth; her mother, Paula Marckx, was acting of her own accord, and not under duress, when she recognised Alexandra (29 October 1973) and when she adopted her (30 October 1974); there is nothing to indicate that, during the interval of a year and a day between these two latter dates, Paula Marckx had any wish to make, by will or by gift inter vivos, a provision for her daughter more generous than that stipulated by Article 908 of the Civil Code; a very substantial proportion of the expenses incurred by Paula Marckx for the adoption could have been avoided; since 30 October 1974, Alexandra ’ s position vis-à-vis her mother has been the same as that of a \"legitimate\" child. Briefly, the applicants are overlooking, in the Government ’ s submission, the fact that it is not the Court ’ s function to rule in abstracto on the compatibility with the Convention of certain legal rules (Golder judgment of 21 February 1975, Series A no. 18, p. 19, para. 39).",
"The Commission ’ s response is that it did not examine the impugned legislation in abstracto since the applicants are relying on specific and concrete facts.",
"27. The Court does not share the Government ’ s view. Article 25 (art. 25) of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see, mutatis mutandis, the Klass and others judgment of 6 September 1978, Series A no. 28, pp. 17-18, para. 33). Such is indeed the standpoint of the applicants: they raise objections to several Articles of the Civil Code which applied or apply to them automatically. In submitting that these Articles are contrary to the Convention and to Protocol No. 1, the applicants are not inviting the Court to undertake an abstract review of rules which, as such, would be incompatible with Article 25 (art. 25) (see, in addition to the two judgments cited above, the De Becker judgment of 27 March 1962, Series A no. 4, p. 26 in fine, and the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A no. 14, p. 10, para. 22): they are challenging a legal position - that of an unmarried mothers and of children born out of wedlock - which affects them personally.",
"The Government appear, in short, to consider that this position is not or is barely detrimental to the applicants. The Court recalls in this respect that the question of the existence of prejudice is not a matter for Article 25 (art. 25) which, in its use of the word \"victim\", denotes \"the person directly affected by the act or omission which is in issue\" (above-cited De Wilde, Ooms and Versyp judgment, p. 11, paras. 23-24; see also the Engel and others judgments of 8 June and 23 November 1976, Series A no. 22, p. 37, para. 89, and p. 69, para. 11).",
"Paula and Alexandra Marckx can therefore \"claim\" to be victims of the breaches of which they complain. In order to ascertain whether they are actually victims, the merits of each of their contentions have to be examined.",
"II. ON THE MERITS",
"28. The applicants rely basically on Articles 8 and 14 (art. 8, art. 14) of the Convention. Without overlooking the other provisions which they invoke, the Court has accordingly turned primarily to these two Articles (art. 8, art. 14) in its consideration of the three aspects of the problem referred to it by the Commission: the manner of establishing affiliation, the extent of the child ’ s family relationships, the patrimonial rights of the child and of her mother.",
"29. Article 8 (art. 8) of the Convention provides:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"30. The Court is led in the present case to clarify the meaning and purport of the words \"respect for ... private and family life\", which it has scarcely had the occasion to do until now (judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, pp. 32-33, para. 7; Klass and others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41).",
"31. The first question for decision is whether the natural tie between Paula and Alexandra Marckx gave rise to a family life protected by Article 8 (art. 8).",
"By guaranteeing the right to respect for family life, Article 8 (art. 8) presupposes the existence of a family. The Court concurs entirely with the Commission ’ s established case-law on a crucial point, namely that Article 8 (art. 8) makes no distinction between the \"legitimate\" and the \"illegitimate\" family. Such a distinction would not be consonant with the word \"everyone\", and this is confirmed by Article 14 (art. 14) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on \"birth\". In addition, the Court notes that the Committee of Ministers of the Council of Europe regards the single woman and her child as one form of family no less than others (Resolution (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children, para. I-10, para. II-5, etc.).",
"Article 8 (art. 8) thus applies to the \"family life\" of the \"illegitimate\" family as it does to that of the \"legitimate\" family. Besides, it is not disputed that Paula Marckx assumed responsibility for her daughter Alexandra from the moment of her birth and has continuously cared for her, with the result that a real family life existed and still exists between them.",
"It remains to be ascertained what the \"respect\" for this family life required of the Belgian legislature in each of the areas covered by the application.",
"By proclaiming in paragraph 1 the right to respect for family life, Article 8 (art. 8-1) signifies firstly that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2 (art. 8-2). As the Court stated in the \"Belgian Linguistic\" case, the object of the Article is \"essentially\" that of protecting the individual against arbitrary interference by the public authorities (judgment of 23 July 1968, Series A no. 6, p. 33, para. 7). Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective \"respect\" for family life.",
"This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court ’ s view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child ’ s integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).",
"Article 8 (art. 8) being therefore relevant to the present case, the Court has to review in detail each of the applicants ’ complaints in the light of this provision.",
"32. Article 14 (art. 14) provides:",
"\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"",
"The Court ’ s case-law shows that, although Article 14 (art. 14) has no independent existence, it may play an important autonomous role by complementing the other normative provisions of the Convention and the Protocols: Article 14 (art. 14) safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (art. 14) therefore violates those two Articles taken in conjunction. It is as though Article 14 (art. 14) formed an integral part of each of the provisions laying down rights and freedoms (judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, pp. 33-34, para. 9; National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 19, para. 44).",
"Accordingly, and since Article 8 (art. 8) is relevant to the present case (see paragraph 31 above), it is necessary also to take into account Article 14 in conjunction with Article 8 (art. 14+8).",
"33. According to the Court ’ s established case-law, a distinction is discriminatory if it \"has no objective and reasonable justification\", that is, if it does not pursue a \"legitimate aim\" or if there is not a \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, inter alia, the above-cited judgment of 23 July 1968, p. 34, para. 10).",
"34. In acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally (see paragraph 31 above), the State must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8 (art. 14+8).",
"A. On the manner of establishing Alexandra Marckx ’ s maternal affiliation",
"35. Under Belgian law, the maternal affiliation of an \"illegitimate\" child is established neither by his birth alone nor even by the entry - obligatory under Article 57 of the Civil Code - of the mother ’ s name on the birth certificate; Articles 334 and 341a require either a voluntary recognition or a court declaration as to maternity. On the other hand, under Article 319, the affiliation of a married woman ’ s child is proved simply by the birth certificate recorded at the registry office (see paragraph 14 above).",
"The applicants see this system as violating, with respect to them, Article 8 (art 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8). This is contested by the Government. The Commission, for its part, finds a breach of Article 8 (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8), with respect to Alexandra, and a breach of Article 14, taken in conjunction with Article 8 (art. 14+8), with respect to Paula Marckx.",
"1. On the alleged violation of Article 8 (art. 8) of the Convention, taken alone",
"36. Paula Marckx was able to establish Alexandra ’ s affiliation only by the means afforded by Article 334 of the Civil Code, namely recognition. The effect of recognition is declaratory and not attributive: it does not create but records the child ’ s status. It is irrevocable and retroactive to the date of birth. Furthermore, the procedure to be followed hardly presents difficulties: the declaration may take the form of a notarial deed, but it may also be added, at any time and without expense, to the record of the birth at the registry office (see paragraph 14 above).",
"Nevertheless, the necessity to have recourse to such an expedient derived from a refusal to acknowledge fully Paula Marckx ’ s maternity from the moment of the birth. Moreover, in Belgium an unmarried mother is faced with an alternative: if she recognises her child (assuming she wishes to do so), she will at the same time prejudice him since her capacity to give or bequeath her property to him will be restricted; if she desires to retain the possibility of making such dispositions as she chooses in her child ’ s favour, she will be obliged to renounce establishing a family tie with him in law (see paragraph 18 above). Admittedly, that possibility, which is now open to her in the absence of recognition, would disappear entirely under the current Civil Code (Article 908) if, as is the applicants ’ wish, the mere mention of the mother ’ s name on the birth certificate were to constitute proof of any \"illegitimate\" child ’ s maternal affiliation. However, the dilemma which exists at present is not consonant with \"respect\" for family life; it thwarts and impedes the normal development of such life (see paragraph 31 above). Furthermore, it appears from paragraphs 60 to 65 below that the unfavourable consequences of recognition in the area of patrimonial rights are of themselves contrary to Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8) and with Article 1 of Protocol No. 1 (art. 14+P1-1).",
"The Court thus concludes that there has been a violation of Article 8 (art. 8), taken alone, with respect to the first applicant.",
"37. As regards Alexandra Marckx, only one method of establishing her maternal affiliation was available to her under Belgian law, namely, to take legal proceedings for the purpose ( recherche de maternité; Articles 341a-341c of the Civil Code). Although a judgment declaring the affiliation of an \"illegitimate\" child has the same effects as a voluntary recognition, the procedure applicable is, in the nature of things, far more complex. Quite apart from the conditions of proof that have to be satisfied, the legal representative of an infant needs the consent of the family council before he can bring, assuming he wishes to do so, an action for a declaration as to status; it is only after attaining majority that the child can bring such an action himself (see paragraph 14 above). There is thus a risk that the establishment of affiliation will be time-consuming and that, in the interim, the child will remain separated in law from his mother. This system resulted in a lack of respect for the family life of Alexandra Marckx who, in the eyes of the law, was motherless from 16 to 29 October 1973. Despite the brevity of this period, there was thus also a violation of Article 8 (art. 8) with respect to the second applicant.",
"2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)",
"38. The Court also has to determine whether, as regards the manner of establishing Alexandra ’ s maternal affiliation, one or both of the applicants have been victims of discrimination contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).",
"39. The Government, relying on the difference between the situations of the unmarried and the married mother, advance the following arguments: whilst the married mother and her husband \"mutually undertake ... the obligation to feed, keep and educate their children\" (Article 203 of the Civil Code), there is no certainty that the unmarried mother will be willing to bear on her own the responsibilities of motherhood; by leaving the unmarried mother the choice between recognising her child or dissociating herself from him, the law is prompted by a concern for protection of the child, for it would be dangerous to entrust him to the custody and authority of someone who has shown no inclination to care for him; many unmarried mothers do not recognise their child (see paragraph 14 above).",
"In the Court ’ s judgment, the fact that some unmarried mothers, unlike Paula Marckx, do not wish to take care of their child cannot justify the rule of Belgian law whereby the establishment of their maternity is conditional on voluntary recognition or a court declaration. In fact, such an attitude is not a general feature of the relationship between unmarried mothers and their children; besides, this is neither claimed by the Government nor proved by the figures which they advance. As the Commission points out, it may happen that also a married mother might not wish to bring up her child, and yet, as far as she is concerned, the birth alone will have created the legal bond of affiliation.",
"Again, the interest of an \"illegitimate\" child in having such a bond established is no less than that of a \"legitimate\" child. However, the \"illegitimate\" child is likely to remain motherless in the eyes of Belgian law. If an \"illegitimate\" child is not recognised voluntarily, he has only one expedient, namely, an action to establish maternal affiliation (Articles 341a-341c of the Civil Code; see paragraph 14 above). A married woman ’ s child also is entitled to institute such an action (Articles 326-330), but in the vast majority of cases the entries on the birth certificate (Article 319) or, failing that, the constant and factual enjoyment of the status of a legitimate child ( une possession d ’ état constante; Article 320) render this unnecessary.",
"40. The Government do not deny that the present law favours the traditional family, but they maintain that the law aims at ensuring that family ’ s full development and is thereby founded on objective and reasonable grounds relating to morals and public order ( ordre public).",
"The Court recognises that support and encouragement of the traditional family is in itself legitimate or even praiseworthy. However, in the achievement of this end recourse must not be had to measures whose object or result is, as in the present case, to prejudice the \"illegitimate\" family; the members of the \"illegitimate\" family enjoy the guarantees of Article 8 (art. 8) on an equal footing with the members of the traditional family.",
"41. The Government concede that the law at issue may appear open to criticism but plead that the problem of reforming it arose only several years after the entry into force of the European Convention on Human Rights in respect of Belgium (14 June 1955), that is with the adoption of the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children (see paragraph 20 above).",
"It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the \"illegitimate\" and the \"legitimate\" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim \"mater semper certa est\".",
"Admittedly, of the ten States that drew up the Brussels Convention, only eight have signed and only four have ratified it to date. The European Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock has at present been signed by only ten and ratified by only four members of the Council of Europe. Furthermore, Article 14 (1) of the latter Convention permits any State to make, at the most, three reservations, one of which could theoretically concern precisely the manner of establishing the maternal affiliation of a child born out of wedlock (Article 2).",
"However, this state of affairs cannot be relied on in opposition to the evolution noted above. Both the relevant Conventions are in force and there is no reason to attribute the currently small number of Contracting States to a refusal to admit equality between \"illegitimate\" and legitimate\" children on the point under consideration. In fact, the existence of these two treaties denotes that there is a clear measure of common ground in this area amongst modern societies.",
"The official statement of reasons accompanying the Bill submitted by the Belgian Government to the Senate on 15 February 1978 (see paragraph 21 above) provides an illustration of this evolution of rules and attitudes. Amongst other things, the statement points out that \"in recent years several Western European countries, including the Federal Republic of Germany, Great Britain, the Netherlands, France, Italy and Switzerland, have adopted new legislation radically altering the traditional structure of the law of affiliation and establishing almost complete equality between legitimate and illegitimate children\". It is also noted that \"the desire to put an end to all discrimination and abolish all inequalities based on birth is ... apparent in the work of various international institutions\". As regards Belgium itself, the statement stresses that the difference of treatment between Belgian citizens, depending on whether their affiliation is established in or out of wedlock, amounts to a \"flagrant exception\" to the fundamental principle of the equality of everyone before the law (Article 6 of the Constitution). It adds that \"lawyers and public opinion are becoming increasingly convinced that the discrimination against (illegitimate) children should be ended\".",
"42. The Government maintain, finally, that the introduction of the rule \"mater semper certa est\" should be accompanied, as is contemplated in the 1978 Bill, by a reform of the provisions on the establishment of paternity, failing which there would be a considerable and one-sided increase in the responsibilities of the unmarried mother. Thus, for the Government, there is a comprehensive problem and any piecemeal solution would be dangerous.",
"The Court confines itself to noting that it is required to rule only on certain aspects of the maternal affiliation of \"illegitimate\" children under Belgian law. It does not exclude that a judgment finding a breach of the Convention on one of those aspects might render desirable or necessary a reform of the law on other matters not submitted for examination in the present proceedings. It is for the respondent State, and the respondent State alone, to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent.",
"43. The distinction complained of therefore lacks objective and reasonable justification. Accordingly, the manner of establishing Alexandra Marckx ’ s maternal affiliation violated, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14+8).",
"B. On the extent in law of Alexandra Marckx ’ s family relationships",
"44. Under Belgian law, a \"legitimate\" child is fully integrated from the moment of his birth into the family of each of his parents, whereas a recognised \"illegitimate\" child, and even an adopted \"illegitimate\" child, remains in principle a stranger to his parents ’ families (see paragraph 16 above). In fact, the legislation makes provision for some exceptions - and recent case-law is tending to add more - but it denies a child born out of wedlock any rights over the estates of his father ’ s or mother ’ s relatives (Article 756 in fine of the Civil Code), it does not expressly create any maintenance obligations between him and those relatives, and it empowers his guardian rather than those relatives to give consent, where appropriate, to his marriage (Article 159, as compared with Article 150), etc.",
"It thus appears that in certain respects Alexandra never had a legal relationship with her mother ’ s family, for example with her maternal grandmother, Mrs. Victorine Libot, who died in August 1974, or with her aunt, Mrs. Blanche Marckx (see paragraph 12 above).",
"The applicants regard this situation as incompatible with Article 8 of the Convention (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8). This is contested by the Government. The Commission, for its part, finds a breach of the requirements of Article 8 (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8), with respect to Alexandra, and a breach of Article 14 taken in conjunction with Article 8 (art. 14+8), with respect to Paula Marckx.",
"1. On the alleged violation of Article 8 (art. 8) of the Convention, taken alone",
"45. In the Court ’ s opinion, \"family life\", within the meaning of Article 8 (art. 8), includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life.",
"\"Respect\" for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally (see, mutatis mutandis, paragraph 31 above). Yet the development of the family life of an unmarried mother and her child whom she has recognised may be hindered if the child does not become a member of the mother ’ s family and if the establishment of affiliation has effects only as between the two of them.",
"46. It is objected by the Government that Alexandra ’ s grandparents were not parties to the case and, furthermore, that there is no evidence before the Court as to the actual existence, now or in the past, of relations between Alexandra and her grandparents, the normal manifestations whereof were hampered by Belgian law.",
"The Court does not agree. The fact that Mrs. Victorine Libot did not apply to the Commission in no way prevents the applicants from complaining, on their own account, of the exclusion of one of them from the other ’ s family. Besides, there is nothing to prove the absence of actual relations between Alexandra and her grandmother before the latter ’ s death; in addition, the information obtained at the hearings suggests that Alexandra apparently has such relations with an aunt.",
"47. There is thus in this connection violation of Article 8 (art. 8), taken alone, with respect to both applicants.",
"2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)",
"48. It remains for the Court to determine whether, as regards the extent in law of Alexandra ’ s family relationships, one or both of the applicants have been victims of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8). One of the differences of treatment found in this area between \"illegitimate\" and \"legitimate\" children concerns inheritance rights on intestacy (Article 756 in fine of the Civil Code); the Court ’ s opinion on this aspect appears at paragraphs 56 to 59 below. With respect to the other differences, the Government do not put forward any arguments beyond those they rely on in connection with the manner of establishing affiliation (see paragraphs 39 to 42 above). The Court discerns no objective and reasonable justification for the differences of treatment now being considered. Admittedly, the \"tranquillity\" of \"legitimate\" families may sometimes be disturbed if an \"illegitimate\" child is included, in the eyes of the law, in his mother ’ s family on the same footing as a child born in wedlock, but this is not a motive that justifies depriving the former child of fundamental rights. The Court also refers, mutatis mutandis, to the reasons set out in paragraphs 40 and 41 of the present judgment.",
"The distinction complained of therefore violates, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14+8).",
"C. On the patrimonial rights relied on by the applicants",
"49. The Civil Code limits, in varying degrees, the rights of an \"illegitimate\" child and his unmarried mother as regards both inheritance on intestacy and dispositions inter vivos or by will (see paragraphs 17 and 18 above).",
"Until her recognition on 29 October 1973, the fourteenth day of her life, Alexandra had, by virtue of Article 756, no inheritance rights on intestacy over her mother ’ s estate. On that date she did not acquire the status of presumed heir ( héritière présomptive ) of her mother, but merely that of \"exceptional heir\" (\" successeur irrégulier \") (Articles 756-758, 760 and 773). It was only Alexandra ’ s adoption, on 30 October 1974, that conferred on her the rights of a \"legitimate\" child over Paula Marckx ’ s estate (Article 365). Moreover, Alexandra has never had any inheritance rights on intestacy as regards the estate of any member of her mother ’ s family (Articles 756 and 365).",
"In the interval between her recognition and her adoption, Alexandra could receive from her mother by disposition inter vivos or by will no more than her entitlement under the Code under the title \"Inheritance on Intestacy\" (Article 908). This restriction on her capacity, like that on Paula Marckx ’ s capacity to dispose of her property, did not exist before 29 October 1973 and disappeared on 30 October 1974.",
"On the other hand, the Belgian Civil Code confers on \"legitimate\" children, from the moment of their birth and even of their conception, all those patrimonial rights which it denied and denies Alexandra; the capacity of married women to dispose of their property is not restricted by the Code in the same way as that of Paula Marckx.",
"According to the applicants, this system contravenes in regard to them Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8), and also, in Paula Marckx ’ s case, Article 1 of Protocol No. 1 (P1-1) taken both alone and in conjunction with Article 14 (art. 14+P1-1). This is contested by the Government. The Commission, for its part, finds only a breach of Article 14, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.",
"1. On the patrimonial rights relied on by Alexandra",
"50. As concerns the second applicant, the Court has taken its stand solely on Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8). The Court in fact excludes Article 1 of Protocol No. 1 (P1-1): like the Commission and the Government, it notes that this Article (P1-1) does no more than enshrine the right of everyone to the peaceful enjoyment of \"his\" possessions, that consequently it applies only to a person ’ s existing possessions and that it does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions. Besides, the applicants do not appear to have relied on this provision in support of Alexandra ’ s claims. Since Article 1 of the Protocol (P1-1) proves to be inapplicable, Article 14 (art. 14) of the Convention cannot be combined with it on the point now being considered.",
"51. The applicants regard the patrimonial rights they claim as forming part of family rights and, hence, as being a matter for Article 8 (art. 8). This reasoning is disputed by the Government. Neither does the majority of the Commission agree with the applicants, but, as the Principal Delegate indicated at the hearings, a minority of six members considers the right of succession between children and parents, and between grandchildren and grandparents, to be so closely related to family life that it comes within the sphere of Article 8 (art. 8).",
"52. The Court shares the view of the minority. Matters of intestate succession - and of disposition - between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children ’ s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate ( réserve héréditaire ). Whilst inheritance rights are not normally exercised until the estate-owner ’ s death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance ( avance d ’ hoirie ); it therefore represents a feature of family life that cannot be disregarded.",
"53. Nevertheless, it is not a requirement of Article 8 (art. 8) that a child should be entitled to some share in the estates of his parents or even of other near relatives: in the matter of patrimonial rights also, Article 8 (art. 8) in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see paragraph 31 above) and such an entitlement is not indispensable in the pursuit of a normal family life. In consequence, the restrictions which the Belgian Civil Code places on Alexandra Marckx ’ s inheritance rights on intestacy are not of themselves in conflict with the Convention, that is, if they are considered independently of the reason underlying them. Similar reasoning is to be applied to the question of voluntary dispositions.",
"54. On the other hand, the distinction made in these two respects between \"illegitimate\" and \"legitimate\" children does raise an issue under Articles 14 and 8 (art. 14+8) when they are taken in conjunction.",
"55. Until she was adopted (30 October 1974 ), Alexandra had only a capacity to receive property from Paula Marckx (see paragraph 49 above) that was markedly less than that which a child born in wedlock would have enjoyed. The Court considers that this difference of treatment, in support of which the Government put forward no special argument, lacks objective and reasonable justification; reference is made, mutatis mutandis, to paragraphs 40 and 41 above.",
"However, the Government plead that since 30 October 1974 the second applicant has had, vis-à-vis the first applicant, the patrimonial rights of a \"legitimate\" child; they therefore consider it superfluous to deal with the earlier period.",
"This argument represents, in essence, no more than one branch of the preliminary plea that has already been set aside (see paragraphs 26 and 27 above). Moreover, in common with the Commission, the Court finds that the need to have recourse to adoption in order to eliminate the said difference of treatment involves of itself discrimination. As the applicants emphasised, the procedure employed for this purpose in the present case is one that usually serves to establish legal ties between one individual and another ’ s child; to oblige in practice an unmarried mother to utilise such a procedure if she wishes to improve her own daughter ’ s situation as regards patrimonial rights amounts to disregarding the tie of blood and to using the institution of adoption for an extraneous purpose. Besides, the procedure to be followed is somewhat lengthy and complicated. Above all, the child is left entirely at the mercy of his parent ’ s initiative, for he is unable to apply to the courts for his adoption.",
"56. Unlike a \"legitimate\" child, Alexandra has at no time before or after 30 October 1974 had any entitlement on intestacy in the estates of members of Paula Marckx ’ s family (see paragraph 49 above). Here again, the Court fails to find any objective and reasonable justification.",
"In the Government ’ s submission, the reason why adoption in principle confers on the adopted child no patrimonial rights as regards relatives of the adopter is that the relatives may not have approved of the adoption. The Court does not have to decide this point in the present proceedings since it considers discriminatory the need for a mother to adopt her child (see paragraph 55 above).",
"57. As regards the sum total of the patrimonial rights claimed by the second applicant, the Court notes that the Bill submitted to the Senate on 15 February 1978 (see paragraph 21 above) advocates, in the name of the principle of equality, \"the abolition of the inferior status characterising, in matters of inheritance, the lot of illegitimate children\" as compared with children born in wedlock.",
"58. The Government also state that they appreciate that an increase in the \"illegitimate\" child ’ s inheritance rights is considered indispensable; however, in their view, reform should be effected by legislation and without retrospective effect. Their argument runs as follows: if the Court were to find certain rules of Belgian law to be incompatible with the Convention, this would mean that these rules had been contrary to the Convention since its entry into force in respect of Belgium (14 June 1955); the only way to escape such a conclusion would be to accept that the Convention ’ s requirements had increased in the intervening period and to indicate the exact date of the change; failing this, the result of the judgment would be to render many subsequent distributions of estates irregular and open to challenge before the courts, since the limitation period on the two actions available under Belgian law in this connection is thirty years.",
"The Court is not required to undertake an examination in abstracto of the legislative provisions complained of: it is enquiring whether or not their application to Paula and Alexandra Marckx complies with the Convention (see paragraph 27 above). Admittedly, it is inevitable that the Court ’ s decision will have effects extending beyond the confines of this particular case, especially since the violations found stem directly from the contested provisions and not from individual measures of implementation, but the decision cannot of itself annul or repeal these provisions: the Court ’ s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53 (art. 53).",
"Nonetheless, it remains true that the Government have an evident interest in knowing the temporal effect of the present judgment. On this question, reliance has to be placed on two general principles of law which were recently recalled by the Court of Justice of the European Communities: \"the practical consequences of any judicial decision must be carefully taken into account\", but \"it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from such a judicial decision\" (8 April 1976, Defrenne v. Sabena, Reports 1976, p. 480). The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences of treatment between \"illegitimate\" and \"legitimate\" children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States (see, mutatis mutandis, paragraph 41 above). Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage. As recently as 22 December 1967, the Commission rejected under Article 27 (2) (art. 27-2) - and rejected de plano (Rule 45 (3) (a) of its then Rules of Procedure) - another application (No. 2775/67) which challenged Articles 757 and 908 of the Belgian Civil Code; the Commission does not seem to have been confronted with the issue again until 1974 (application no. 6833/74 of Paula and Alexandra Marckx). Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.",
"59. To sum up, Alexandra Marckx was the victim of a breach of Article 14, taken in conjunction with Article 8 (art. 14+8), by reason both of the restrictions on her capacity to receive property from her mother and of her total lack of inheritance rights on intestacy over the estates of her near relatives on her mother ’ s side.",
"2. On the patrimonial rights relied on by Paula Marckx",
"60. From 29 October 1973 (recognition) to 30 October 1974 (adoption), the first applicant had only limited capacity to make dispositions in her daughter ’ s favour (see paragraph 49 above). She complains of this situation, relying on Article 8 (art. 8) of the Convention and on Article 1 of Protocol No. 1 (P1-1), taken in each case both alone and in conjunction with Article 14 (art. 14+8, art. 14+P1-1).",
"(a) On the alleged violation of Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8)",
"61. As the Court has already noted, Article 8 (art. 8) of the Convention is relevant to the point now under consideration (see paragraphs 51 and 52 above). However, Article 8 (art. 8) does not guarantee to a mother complete freedom to give or bequeath her property to her child: in principle it leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see paragraph 31 above) and such freedom is not indispensable in the pursuit of a normal family life. In consequence, the restriction complained of by Paula Marckx is not of itself in conflict with the Convention that is if it is considered independently of the reason underlying it.",
"62. On the other hand, the distinction made in this area between unmarried and married mothers does raise an issue. The Government put forward no special argument to support this distinction and, in the opinion of the Court, which refers mutatis mutandis to paragraphs 40 and 41 above, the distinction lacks objective and reasonable justification; it is therefore contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).",
"(b) On the alleged violation of Article 1 of Protocol No. 1 (P1-1), taken both alone and in conjunction with Article 14 (art. 14+P1-1) of the Convention",
"63. Article 1 of Protocol No. 1 (P1-1) reads as follows:",
"\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"",
"In the applicants ’ submission, the patrimonial rights claimed by Paula Marckx fall within the ambit of, inter alia, this provision. This approach is shared by the Commission but contested by the Government.",
"The Court takes the same view as the Commission. By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words \"possessions\" and \"use of property\" (in French:\" biens \",\" propriété \", \"usage des biens \"); the\" travaux préparatoires \", for their part, confirm this unequivocally: the drafters continually spoke of \"right of property\" or \"right to property\" to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1). Indeed, the right to dispose of one ’ s property constitutes a traditional and fundamental aspect of the right of property (cf. the Handyside judgment of 7 December 1976, Series A no. 24, p. 29, para. 62).",
"64. The second paragraph of Article 1 ( P1-1) nevertheless authorises a Contracting State to \"enforce such laws as it deems necessary to control the use of property in accordance with the general interest\". This paragraph thus sets the Contracting States up as sole judges of the \"necessity\" for such a law (above-mentioned Handyside judgment, ibid). As regards \"the general interest\", it may in certain cases induce a legislature to \"control the use of property\" in the area of dispositions inter vivos or by will. In consequence, the limitation complained of by the first applicant is not of itself in conflict with Protocol No. 1.",
"65. However, the limitation applies only to unmarried and not to married mothers. Like the Commission, the Court considers this distinction, in support of which the Government put forward no special argument, to be discriminatory. In view of Article 14 (art. 14) of the Convention, the Court fails to see on what \"general interest\", or on what objective and reasonable justification, a State could rely to limit an unmarried mother ’ s right to make gifts or legacies in favour of her child when at the same time a married woman is not subject to any similar restriction. In other respects, the Court refers, mutatis mutandis, to paragraphs 40 and 41 above.",
"Accordingly, there was on this point breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.",
"D. On the alleged violation of Articles 3 and 12 (art. 3, art. 12) of the Convention",
"66. The applicants claim that the legislation they complain of entails an affront to their dignity as human beings; they contend that it subjects them to \"degrading treatment\" within the meaning of Article 3 (art. 3). The Government contest this. The Commission, for its part, did not consider that it had to examine the case under this Article (art. 3).",
"In the Court ’ s judgment, while the legal rules at issue probably present aspects which the applicants may feel to be humiliating, they do not constitute degrading treatment coming within the ambit of Article 3 (art. 3).",
"67. In its report of 10 December 1977, the Commission expresses the opinion that Article 12 (art. 12), which concerns \"the right to marry and to found a family\", is not relevant to the present case.",
"The applicants, on the other hand, maintain their view that the Belgian Civil Code fails to respect, in the person of Paula Marckx, the right not to marry which, in their submission, is inherent in the guarantee embodied in Article 12 (art. 12). They argue that in order to confer on Alexandra the status of a \"legitimate\" child, her mother would have to legitimate her and, hence, to contract marriage. The Court notes that there is no legal obstacle confronting the first applicant in the exercise of the freedom to marry or to remain single; consequently, the Court has no need to determine whether the Convention enshrines the right not to marry.",
"The fact that, in law, the parents of an \"illegitimate\" child do not have the same rights as a married couple also constitutes a breach of Article 12 (art. 12) in the opinion of the applicants; they thus appear to construe Article 12 (art. 12) as requiring that all the legal effects attaching to marriage should apply equally to situations that are in certain respects comparable to marriage. The Court cannot accept this reasoning; in company with the Commission, the Court finds that the issue under consideration falls outside the scope of Article 12 (art. 12).",
"Accordingly, Article 12 (art. 12) has not been infringed.",
"E. On the application of Article 50 (art. 50) of the Convention",
"68. At the hearing on 24 October 1978, Mrs. Van Look asked the Court to award each applicant, under Article 50 (art. 50) of the Convention, one Belgian franc as compensation for moral damage. The Government did not advert to the matter.",
"The Court regards the question as being ready for decision (Rule 50 para. 3, first sentence, of the Rules of Court, read in conjunction with Rule 48 para. 3). In the particular circumstances of the case, the Court is of the opinion that it is not necessary to afford Paula and Alexandra Marckx any just satisfaction other than that resulting from the finding of several violations of their rights."
] |
24 | Inze v. Austria | 28 October 1987 | The applicant was not legally entitled to inherit his mother’s farm when she died intestate because he was born out of wedlock. Although he had worked on the farm until he was 23, his younger half-brother inherited the entire farm. By a subsequent judicial settlement, the applicant ultimately obtained a piece of land which had been promised to him by his mother during her lifetime. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 of Protocol No. 1 (right to the peaceful enjoyment of one’s possessions) to the Convention. Having recalled that the Convention is a living instrument, to be interpreted in the light of present-day conditions, and that the question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member States of the Council of Europe, it found in particular that very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"8. The applicant, who was born out of wedlock in 1942, is an Austrian citizen and resides at Stallhofen, Carinthia.",
"9. Until 1965, the applicant lived on a farm at St. Bartlmä, Carinthia, which had belonged first to his maternal grandmother and then to his mother, Theresia Inze. When his mother married Mr. Rudolf Fischer, the applicant remained in the house not only with his grandmother and his mother, but also with her husband and subsequently with their son, Manfred Fischer, who was born in wedlock in 1954. At the age of 23, he left the farm and later he married and settled down a few kilometers away.",
"The applicant ’ s mother died intestate on 18 April 1975 and left as her heirs, apart from the applicant, her husband and her second son. According to the provisions of the Civil Code, the widower was entitled to a one-fourth part of the inheritance (Article 757) and each of the sons (irrespective of their illegitimate or legitimate birth) to three-eighths thereof (Articles 732 and 754). In proceedings commenced ex officio before the Klagenfurt District Court ( Bezirksgericht ), the applicant, his step-father and his half-brother stated that they were willing to accept these shares. The District Court decided on 31 March 1976 that the declarations of acceptance were valid.",
"10. However, the farm in question was subject to the special regulations in the Carinthian Hereditary Farms Act of 1903 ( Erbhöfegesetz, Provincial Law Gazette, no. 33/1903, \"the Provincial Act\") providing that farms of a certain size may not be divided in the case of hereditary succession and that one of the heirs must take over the entire property and pay off the other heirs (see paragraph 25 below).",
"The applicant had claimed on 8 August 1975 that he should be called to take over his mother ’ s farm as he was the eldest son. He later submitted that the regulation giving precedence to legitimate children had in the meantime been abrogated, and that both his step-father and his half-brother were in any event excluded as being unfit to work the farm, under section 7(4) of the Provincial Act (see paragraph 25 below).",
"A. Classification of the farm",
"11. On 28 April 1976, the District Court held a hearing in the presence of the parties. On 26 August, it appointed an expert to submit an opinion concerning the following matters: first, the classification of the farm as a \"hereditary farm\" within the meaning of the Provincial Act; second, its value for the purpose of determining the sums to be paid to the ceding heirs; and third, the conditions of its exploitation since the death of the applicant ’ s mother.",
"12. The opinion, dated 1 October 1976, was filed with the court on 27 October. According to the expert, the farm was subject to the provisions of the Provincial Act, and its value was 331,040 Austrian schillings (ATS). However, the property was in a very bad condition and could not by itself provide a sufficient livelihood for a family. After the previous owner ’ s death, it had been worked mainly by her widower, who had kept only a few cattle and used all the land for pasture. The grassland had partly run wild and the fields had no longer been tilled.",
"13. After a further hearing on 18 January 1977, the court decided on 25 January that the property had the character of a \"hereditary farm\" and fixed its value, in accordance with the expert opinion, at 331,040 ATS. This decision became final, as none of the parties appealed.",
"B. Determination of the heir",
"14. The question of the determination of the heir entitled to take over the farm, including the applicant ’ s claim that his step-father and half-brother should be excluded for this purpose, was referred to the Klagenfurt Regional Court ( Landesgericht ) in accordance with section 7(4) of the Provincial Act (see paragraph 25 below).",
"The District Court communicated its file to the Regional Court on 20 July 1977. After a hearing scheduled to take place on 16 January 1978 had been cancelled, the Regional Court returned the file to the District Court on 17 January 1978, with the request to take further evidence relating to the ability of the applicant ’ s half-brother to work the farm. The expert opinion was therefore to be supplemented in this respect, and the District Court was asked to add its own legal opinion when re-submitting the file (section 7(4) of the Provincial Act; see paragraph 25 below).",
"15. The District Court then ordered a supplementary expert opinion which was lodged on 6 April 1978. It stated that the conditions of the exploitation of the farm had further deteriorated, some lands having been left to a motor-cross club and some to a neighbour who had deposited various construction materials there. It was therefore hardly possible to speak of an orderly exploitation of the farm.",
"As regards the ability of the applicant ’ s half-brother to run the farm at the same time as continuing with his job as an unskilled worker, the expert answered in the affirmative. Not very much was required to be done on the farm and his workplace was not so far away as to prevent his daily presence on the property.",
"16. At a hearing held on 31 January 1979, after several postponements, the parties failed to arrive at any agreement as to who should take over the farm even just for the duration of the proceedings, the applicant ’ s step-father and half-brother being opposed to the appointment of a curator.",
"17. The District Court re-submitted the file to the Regional Court in February 1979. The Regional Court decided on 25 June 1979 to declare the applicant ’ s claim inadmissible in so far as he sought a ruling that his step-father was excluded from taking over the farm, since the latter had not in fact maintained that he was entitled to do so. As regards the claim for exclusion of the applicant ’ s half-brother, the Regional Court found that he was neither prevented by his profession from working the farm, nor incapable of doing so at the same time as continuing with his job. Furthermore, he could not be held responsible for the negligent exploitation since his mother ’ s death because it was his father who had run the farm in the meantime.",
"18. The applicant appealed against this decision to the Graz Court of Appeal ( Oberlandesgericht ), claiming that certain evidence had been disregarded by the Regional Court when refusing the exclusion of his half-brother. He also submitted that the provision in section 7(2) of the Provincial Act giving precedence to legitimate children (see paragraph 25 below) had been abrogated by the new version of Article 754 § 1 of the Civil Code, enacted in 1970, and by Article 14 (art. 14) of the European Convention on Human Rights. He requested the court to submit the question of the constitutionality of the provision to the Constitutional Court ( Verfassungsgerichtshof ).",
"19. The Court of Appeal dismissed the appeal on 26 September 1979. After confirming the Regional Court ’ s finding that the applicant ’ s half-brother was not excluded, it stated that it had no doubts as to the constitutionality of the provision giving precedence to legitimate children. In its opinion, the provision had an objective justification because it was a peculiarity of the rural family and economic structure that legitimate children lived with the family on the farm, whereas illegitimate children were not infrequently brought up elsewhere and therefore did not have the same close link with the farm as legitimate children. This was also the situation in the present case. The Court of Appeal therefore saw no reason to submit the issue of constitutionality to the Constitutional Court.",
"20. The applicant appealed against this decision to the Supreme Court ( Oberster Gerichtshof ), adducing essentially the same arguments as before the Court of Appeal. The Supreme Court rejected the appeal by a decision of 9 April 1980, on the ground that it was directed against a decision of the Court of Appeal confirming a previous decision of the Regional Court; in such a case, an appeal is admissible only when a decision is clearly contrary to law or inconsistent with the file, or when there has been a procedural defect entailing nullity of the proceedings. As to the first condition, the Supreme Court denied that section 7(2) of the Provincial Act had been abrogated by Article 754 § 1 of the Civil Code, as amended.",
"The Supreme Court also held that there was no reason to submit the matter to the Constitutional Court, on the following grounds.",
"As regards the conformity of section 7(2) with the constitutional provision in Article 14 (art. 14) of the Convention, Article 14 (art. 14) was applicable only in relation to the enjoyment of the rights and freedoms set forth in the Convention. In its opinion, the Convention did not deal with the question of hereditary succession, and Article 1 of Protocol No. 1 (P1-1), which secured the right to the peaceful enjoyment of possessions, did not exclude regulations providing for different rules of succession according to birth in wedlock or out of wedlock.",
"Furthermore, there was no doubt as to the compatibility of section 7(2) with the constitutional principle of equality. This principle required that legislation make no legal distinction based on the personal status of an individual unless this was justified by objective reasons. The impugned regulations in the Provincial Act did not, however, appear to be unjustified. Similar provisions also existed in the provincial legislation of Tyrol ( Höfegesetz ) and in the federal legislation for the other provinces ( Anerbengesetz ) and these limited illegitimate children ’ s rights even further, in that they could take over a hereditary farm only if they had been brought up on it.",
"The preparatory materials on this legislation showed that the precedence accorded to legitimate children was based on convictions of rural society. Neither was the regulation in question contradicted by attempts to assimilate the legal position of illegitimate children to that of legitimate children, because it reflected the special convictions and attitudes of the rural population which, among other things, also affected the legal position of the widower. Furthermore, the Supreme Court observed, the family was an important element of the legal organisation of human relationships. Having regard to all these circumstances, it could not be said that the regulations contained in the Provincial Act were not based on objective considerations.",
"21. After the European Convention on the Legal Status of Children born out of Wedlock, of 15 October 1975, had entered into force in respect of Austria with effect from 29 August 1980, the applicant again appealed to the Supreme Court, asking it to reconsider its decision of 9 April 1980. Article 9 of this Convention provides that \"a child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father ’ s or mother ’ s family, as if it had been born in wedlock\". However, Austria ratified that Convention with the following reservation:",
"\"In pursuance of Article 14 § 1 of the Convention, the Republic of Austria reserves the right not to accord to a child born out of wedlock, as provided for in Article 9 of the Convention, the same right of succession in the estate of its father and of a member of its father ’ s family, as if it had been born in wedlock.\"",
"On 6 October 1980, the Supreme Court rejected the appeal as inadmissible, having regard to the binding effect of its previous final decision and to the absence of a legal possibility to re-open the procedure.",
"C. Settlement reached between the applicant and his half-brother",
"22. The first-instance proceedings were resumed in October 1981. On 12 October, a judicial settlement was reached between the applicant and his half-brother whereby the applicant renounced any claim to take over his mother ’ s hereditary farm, which would pass to his half-brother. In return, he was to receive a certain piece of land which had been promised to him by his mother during her lifetime, but no other compensation.",
"The judicial proceedings in the hereditary case were then terminated on 31 December 1981 by the transfer ( Einantwortung ) of the title to the whole farm to the applicant ’ s half-brother.",
"23. The implementation of the above settlement was left to subsequent agreement between the parties, which they concluded on 26 May 1982.",
"However, the separating-off of the piece of land, which consisted of forest, assigned to the applicant under the agreement still required the approval of certain administrative authorities, including in particular the competent forestry authority, having regard to the provisions of the Carinthian Provincial Forestry Act (Provincial Law Gazette, no. 77/1979). Certain difficulties arose in this respect. The piece of land was not sufficiently large for its separating-off to be permissible under the above Act except in the case of a predominant public interest, the existence of which the authority denied. The difficulties were apparently overcome after the Constitutional Court had in a different case found the relevant provisions of the Carinthian Provincial Forestry Act to be unconstitutional.",
"The land was then registered in the applicant ’ s name in the official land register. This has been confirmed in an extract from the land register, dated 13 January 1984."
] | [
"II. THE RELEVANT LEGISLATION",
"A. Civil Code",
"24. The relevant provisions of the Civil Code read as follows (translation from German):",
"Article 545",
"\"Capacity to inherit can be determined only when the estate actually passes. This is generally when the de cuius dies (Article 703).\"",
"Article 547",
"\"Once he has accepted the inheritance, the heir represents the de cuius in respect of the estate. Both shall be regarded as being one and the same person as regards third parties. Until the heir has accepted the inheritance, the estate shall be treated as if it were still in the deceased ’ s possession.\"",
"Article 550",
"\"Where there is more than one heir, they shall be regarded, in respect of their joint right to inherit, as being one person. Until the estate is transferred by court order, the heirs shall be jointly and severally liable. The extent to which they shall be liable thereafter is laid down in the chapter on taking possession of the estate.\"",
"B. The Carinthian Hereditary Farms Act",
"25. The Carinthian Hereditary Farms Act, while leaving unaffected the general rules in the Civil Code on the determination of hereditary shares, regulates the attribution of these shares in cash or in kind.",
"The following provisions of this Act are relevant (translation from German):",
"Section 6 § 1",
"\"If the estate of the owner of a farm devolves on several persons, only one person, the principal heir ( Anerbe ), may inherit the farm and its equipment ...\"",
"Section 7",
"\"The principal heir shall be determined according to law and the order which it prescribes for the devolution of estates. When there are several heirs and no agreement can be reached among them, they shall be called to take over the farm in the following order:",
"(1) In general, male heirs shall take precedence over female, and older over younger heirs of the same sex; lots shall be drawn between heirs of the same age. Those more closely related shall, however, take precedence over those more distantly related.",
"(2) Children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children.",
"...",
"(4) The following shall, in general, be excluded from taking over the farm:",
"...",
"(b) persons who, by reason of a mental or physical disability, seem incapable of running the farm themselves,",
"...",
"(d) persons who are prevented by their profession from managing the farm on the spot and working it in person.",
"... The decision regarding ... the existence of grounds of exclusion under paragraphs (b) to (e) shall be reserved to the court of first instance ( Landesgericht and Kreisgericht ), to which the District Court ( Bezirksgericht ) shall submit the file on the administration of the estate, together with its own opinion.\"",
"Section 8",
"\"When the estate is being divided, the farm (section 6) shall devolve on the principal heir, who shall become the estate ’ s debtor for the value of the farm free of charges.\"",
"Section 9",
"\"(1) The value of the farm shall be determined by agreement among the persons concerned.",
"(2) If no such agreement can be reached, the court shall call on experts to make an assessment, shall hear the municipal council and the parties and shall determine on an equitable basis the value of the farm in such a way that the principal heir is not burdened with undue financial difficulties ( wohl bestehen kann ).\"",
"Section 14",
"\"(1) The law on reserved portions (Articles 765 and 766 of the Civil Code) is not affected by the regulations on division of estates.",
"(2) The value of reserved portions shall be assessed with reference to the value of the farm, determined in accordance with section 9(2) ...\"",
"26. To meet social changes that have occurred in recent years, the Federal Minister of Justice has prepared two Bills, one for all provinces except Tyrol and Carinthia and another concerning only Carinthia. The latter Bill was, in accordance with the usual practice, the subject of a consultation procedure in 1985. It is being amended in the light of the views expressed and will be laid before Parliament in the near future. Section 8 of the Bill reads as follows (translation from German):",
"\"If the deceased was the sole owner of the farm, the person taking it over shall be determined according to law and the order which it prescribes for the devolution of estates. If there are several heirs and no agreement has been reached among them, they shall be called to take over the farm in the following order:",
"1. Heirs who have been trained as farmers shall take precedence over those who have not. If several heirs have been trained as farmers, those who were brought up on the farm in question shall take precedence over those who were not.",
"2. Children, including adopted children, of the deceased shall take precedence over a surviving spouse; a surviving spouse shall, however, take precedence over descendants who were not brought up on the farm and over other relatives.\"",
"...\"",
"The explanatory report states that this provision is designed to eliminate, inter alia, the disadvantages suffered by illegitimate and adopted children as compared with legitimate children.",
"PROCEEDINGS BEFORE THE COMMISSION",
"27. The applicant applied to the Commission on 20 June 1979 (application no. 8695/79). He complained that he was discriminated against, on account of his illegitimate birth, in the enjoyment of property rights relating to his mother ’ s hereditary farm. He alleged a violation of Article 1 of Protocol No. 1, taken in conjunction with Article 14 of the Convention (art. 14+P1-1).",
"28. The Commission ’ s proceedings were adjourned from May 1982 to October 1984 because friendly settlement negotiations were taking place in Austria. Subsequently, on 5 December 1984, the Commission declared the application admissible. In its report of 4 March 1986 (Article 31) (art. 31), the Commission expressed the opinion (by six votes to four) that there had been a breach of Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1). The full text of the Commission ’ s opinion and of the dissenting opinions contained in the report is reproduced as an annex to the present judgment.",
"FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT",
"29. At the hearing on 23 April 1987, the Government requested the Court to hold",
"\"that in the present case the provisions of Article 1 of Protocol No. 1 (P1-1), whether taken alone or in conjunction with Article 14 (art. 14+P1-1) of the ... Convention, have not been violated and that, therefore, the facts underlying the dispute do not indicate any breach of the Convention by the Republic of Austria; and in eventu that the decision by the Court that there has been a breach of the Convention amounts in itself to adequate just satisfaction for the purposes of Article 50 (art. 50) of the Convention\".",
"AS TO THE LAW",
"I. THE APPLICANT ’ S STATUS AS \"VICTIM\" (Article 25 of the Convention) (art. 25)",
"30. According to the Government, the applicant had renounced any claim to his mother ’ s estate under the judicial settlement with his half-brother and his step-father concluded on 12 October 1981 (see paragraph 22 above). Furthermore, the value of the piece of land which he had received in exchange amounted roughly to the value of three-eighths of that estate. In consequence, he could no longer claim to be a \"victim\" of a breach of the Convention.",
"The applicant and the Commission took the opposite view; they pointed out in particular that the applicant had been in a weak negotiating position when he accepted the settlement.",
"31. The Court has jurisdiction to rule on this preliminary plea, since it was raised by the Government before the Commission at the admissibility stage (see, as the most recent authority, the Nölkenbockhoff judgment of 25 August 1987, Series A no. 123, p. 77, § 32).",
"32. The word \"victim\" in Article 25 (art. 25) refers to the person directly affected by the act or omission at issue; and the existence of a violation is conceivable even in the absence of prejudice, prejudice being relevant only for the purposes of Article 50 (art. 50) (see, inter alia, the van der Sluijs, Zuiderveld and Klappe judgment of 22 May 1984, Series A no. 78, p. 16, § 37). Therefore, the fact that a judicial settlement, concluded between private parties on their own, may have mitigated the disadvantage suffered by the applicant does not in principle deprive him of his status as \"victim\". The position might have been otherwise if, for instance, the national authorities had acknowledged either expressly or in substance, and then afforded redress for, the alleged breach of the Convention (see, inter alia, the Eckle judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66).",
"33. In any event, the applicant ’ s complaint was directed to the fact that, in the instant case, his illegitimate birth deprived him in law of any possibility of taking over his mother ’ s farm in the partition of her estate. This situation remains unchanged and it is only its financial consequences which have been alleviated by the judicial settlement. In addition, the settlement was concluded at a time when Mr. Inze could no longer hope to obtain the property, since the Supreme Court had already finally decided against him (see paragraphs 20 to 22 above). He was therefore in a position of inferiority, and accepted the settlement as the lesser of two evils.",
"34. In these circumstances, the applicant can still claim to be a \"victim\" within the meaning of Article 25 (art. 25) of the Convention.",
"II. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)",
"35. Mr. Inze claimed that, as a result of the application of section 7(2) of the Provincial Act (see paragraph 25 above), he had been a victim of a violation of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1). As far as is relevant, these provisions read:",
"Article 14 (art. 14) of the Convention",
"\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth or other status.\"",
"Article 1 of Protocol No. 1 (P1-1)",
"\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions ...\"",
"A. Applicability",
"36. According to the Court ’ s established case-law, Article 14 (art. 14) complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the \"rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of one or more of such provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter (see, inter alia, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, § 71).",
"The applicant did not allege a violation of Article 1 of Protocol No. 1 (P1-1), taken alone, and the Court does not find it necessary to examine this question ex officio; it suffices to ascertain whether his complaints fall within the ambit of this provision.",
"37. The Government submitted that this was not the case. They relied on the Court ’ s Marckx judgment of 13 June 1979, according to which Article 1 of Protocol No. 1 (P1-1) \"does no more than enshrine the right of everyone to the peaceful enjoyment of ‘ his ’ possessions, (...) consequently it applies only to a person ’ s existing possessions and ... does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions\" (Series A no. 31, p. 23, § 50).",
"38. The Court recalls that Article 1 of Protocol No. 1 (P1-1) in substance guarantees the right of property (see, inter alia, the AGOSI judgment of 24 October 1986, Series A no. 108, p. 17, § 48).",
"Like the Commission, the Court considers that the situation in the instant case is to be distinguished from that in the Marckx case. In the latter, the complaint concerned the potential right of the second applicant to inherit from the first applicant, who was still alive. Here, the applicant had already acquired by inheritance a right to a share of his deceased mother ’ s estate, including the farm, subject to a distribution of the assets in accordance with the Provincial Act. Under Articles 545, 547 and 550 of the Austrian Civil Code, on the death of the de cuius, the heirs automatically acquire their hereditary rights over his estate, which is vested in them pro indiviso (see paragraph 24 above).",
"Furthermore, the heirs had already accepted the shares provided for by the Civil Code and the Klagenfurt District Court had decided on 31 March 1976 that the declarations of acceptance were valid (see paragraph 9 above). The estate was therefore the joint property of the applicant and his co-heirs, although none of them had an immediate right to a specific asset.",
"39. According to the Government, the provisions of the Provincial Act governing the attribution of hereditary farms on intestacy (see paragraph 25 above) had two aims: to prevent the splitting up of a farm, by providing that it shall pass to only one of the heirs, who shall compensate the others; and to maintain the farm ’ s viability by determining the compensation in such a manner that the principal heir is not burdened with undue financial difficulties.",
"The Court notes that the applicant did not challenge the system of hereditary farms as such, but only the criteria applicable to the choice of the principal heir. In this respect, section 7(2) of the Provincial Act gives precedence to legitimate over illegitimate children. Accordingly, in the instant case the farm in question went to the younger, legitimate, son, whereas the applicant was, on the sole ground of his illegitimate birth, deprived of any possibility of obtaining it.",
"40. The Court thus concludes that the facts at issue fall within the ambit of Article 1 of Protocol No. 1 (P1-1) and that Article 14 of the Convention, taken together with that provision (art. 14+P1-1), is therefore applicable.",
"B. Compliance",
"41. For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it \"has no objective and reasonable justification\", that is, if it does not pursue a \"legitimate aim\" or if there is not a \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, inter alia, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, pp. 66-67, § 177).",
"The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background (ibid.).",
"In this respect, the Court recalls that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, amongst various authorities, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 25, § 53). The question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member States of the Council of Europe. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is presently in force in respect of nine member States of the Council of Europe. It was ratified by the Republic of Austria on 28 May 1980, with a reservation (see paragraph 21 above) which is not relevant to the facts of the present case. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, the above-mentioned Abdulaziz, Cabales and Balkandali judgment, Series A no 94, p. 38, § 78).",
"42. The Government advanced the following arguments. The criteria for selecting the principal heir were a consequence of the fact that only one heir was entitled to take over a hereditary farm. Furthermore, those criteria were based on objective reasons; in particular, the precedence given to legitimate children corresponded to what could be presumed to be the deceased ’ s intentions. In any event, the provisions of section 7(2) of the Provincial Act only applied to intestate succession and an owner who objected thereto could always make a will.",
"In addition, the birth criterion reflected the convictions of the rural population and the social and economic condition of farmers. Again, illegitimate children, unlike legitimate children, were usually not brought up on their parents ’ farm and did not have close links with it.",
"Finally, one had to bear in mind the special treatment reserved to the surviving spouse, who was normally entitled to stay on the farm and to be maintained by the principal heir.",
"43. Like the Commission, the Court is not persuaded by the Government ’ s arguments. Most of them are based on general and abstract considerations - concerning such matters as the deceased ’ s intentions, the place where illegitimate children are brought up and the surviving spouse ’ s relations with his or her legitimate children - which may sometimes not reflect the real situation. For instance, Mr. Inze was brought up and had worked on the farm in question until the age of 23 (see paragraph 9 above). Those considerations cannot justify a rule of this kind.",
"Whilst it is true that the applicant ’ s mother could have made a will in his favour, this does not alter the fact that, in the instant case, he was deprived by law of the possibility of taking over the farm on her death intestate.",
"44. The Court also considers that the argument relating to the convictions of the rural population merely reflects the traditional outlook. The Government themselves have recognised the ongoing developments in rural society and have accordingly prepared a Bill which takes them into account. In future, the attribution of a hereditary farm is to be based on objective circumstances, notably training for running farms and the fact of having been brought up on the particular property (see paragraph 26 above).",
"The Court wishes to make it clear that these proposed amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. They do however show that the aim of the legislation in question could also have been achieved by applying criteria other than that based on birth in or out of wedlock.",
"45. The Court therefore concludes that there was a breach of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1).",
"III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION",
"46. Article 50 (art. 50) provides as follows:",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"Mr. Inze claimed just satisfaction for pecuniary damage resulting from his inability to take over his mother ’ s farm and for costs and expenses. He made no claim for non-pecuniary damage and this is not a matter which the Court has to examine ex officio (see, mutatis mutandis, the Sunday Times judgment of 6 November 1980, Series A no. 38, p. 9, § 14).",
"A. Damage",
"47. The Court notes that, as a result of section 7(2) of the Provincial Act, the applicant had no possibility in this case of taking over his mother ’ s farm, since the precedence given to his half-brother excluded him from the list of prospective principal heirs (see paragraph 33 above).",
"It is true that Article 1 of Protocol No. 1 (P1-1) did not entitle the applicant to inherit the farm specifically. Nevertheless, he lost, because of the discrimination found by the Court, real opportunities of taking over the farm, which must be taken into account (see, amongst other authorities, mutatis mutandis, the Sporrong and Lönnroth judgment of 18 December 1984, Series A no. 88, p. 13, § 25).",
"Although the judicial settlement of 12 October 1981 (see paragraph 22 above) may have somewhat alleviated the financial consequences of the violation found by the Court, it did not completely efface - and did not therefore provide sufficient reparation for - the initial disadvantage suffered by the applicant (see paragraphs 32-33 above).",
"48. Mr. Inze ’ s original claims were based on an expert opinion, dated 18 April 1985, which proceeded on the assumption that he would have obtained his mother ’ s farm, but for the discrimination found by the Court.",
"He subsequently put forward an alternative method which led to a figure of ATS 1,268,476.34. This represented the alleged market value of the farm in 1976 (ATS 1,455,000) less (a) the transfer value (ATS 197,481.83) of the legal shares due to his half-brother and his step-father (see paragraphs 9 and 13 above) and (b) the market value at that time (ATS 455,700) of the piece of land received under the judicial settlement (see paragraph 22 above). The relevant sums had been adjusted to take account of changes in the cost-of-living index up to January 1987.",
"49. The Government questioned both this method of calculation and its results. They put forward an alternative method, proposed by the Federal Ministry of Finance. In their opinion, if the Provincial Act had not applied, Mr. Inze would have been entitled only to three-eighths of the market value of the entire farm (ATS 1,827,838 in 1985). His material loss would then have amounted only to the difference between his legal share (ATS 685,439.52) and the market value of the piece of land he finally obtained (ATS 607,600).",
"50. The Commission ’ s Delegate disagreed with both methods of calculation, since they led not to equal treatment between Mr. Inze and his half-brother, but, respectively, to treatment that was either more favourable or more prejudicial to the former. In his opinion, the applicant ’ s compensation should be calculated by increasing his legal share in reasonable proportion to the surplus value which accrued to his half-brother.",
"51. Without disregarding the fact that the discrimination found by the Court led to a certain financial imbalance between the applicant and his half-brother, the Court points out that the damage is in this case the applicant ’ s loss of opportunities (see paragraph 47 above). Such a loss does not readily lend itself to precise quantification (see the above-mentioned Sporrong and Lönnroth judgment, Series A no. 88, p. 14, § 27).",
"Accordingly, the Court, taking all the relevant factors into account and, as required by Article 50 (art. 50), making an assessment on an equitable basis, awards Mr. Inze the sum of ATS 150,000.",
"B. Costs and expenses",
"52. Mr. Inze claimed the reimbursement of costs and expenses incurred in Austria (ATS 22,780 for lawyer ’ s fees in the succession proceedings, ATS 4,409 for sundry expenses and 2,539 for expert ’ s fees) and before the Convention institutions (ATS 95,857.15 for the Commission ’ s proceedings and ATS 38,493.95 for the Court ’ s).",
"53. In accordance with its established case-law, the Court must ascertain whether the costs and expenses claimed were actually incurred, necessarily incurred and reasonable as to quantum.",
"54. As to the costs in Austria, the Court accepts that at least the lawyer ’ s and the expert ’ s fees were actually incurred. Moreover, although the Government contended that the presence of a lawyer in the succession proceedings was not in principle necessary, the Court considers that certain of the issues raised (including the question of constitutionality) were complex and required professional assistance. In addition, it was not unreasonable to have recourse to the services of an expert, having regard to the technicality of real-estate matters (see the above-mentioned Sporrong and Lönnroth judgment, Series A no. 88, p. 17, § 39); in fact, the Government themselves also consulted specialists.",
"In the absence of details as to the lawyer ’ s fees and sundry expenses, the Court awards the sum of ATS 23,000 for these items; to this should be added the ATS 2,539 for the expert ’ s fees.",
"55. As regards the Commission ’ s proceedings, the applicant claimed ATS 5,067 for lawyer ’ s fees incurred before they were adjourned (see paragraph 28 above) and ATS 90,790.15 for fees incurred thereafter. For the proceedings before the Court, he sought ATS 38,493.95.",
"56. The Court finds the first amount, which was not contested by the Government, to be reasonable and therefore allows it.",
"As for the second and third amounts, the Government did not contest that the applicant had incurred liability to pay sums additional to those covered by the legal aid which he had received from the Council of Europe (see the Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 16, § 36). However, both they and the Commission argued that the figures claimed were excessive.",
"The Government questioned the way in which the applicant ’ s lawyer had calculated his fees, the amount of which was twice that provided for proceedings before the Austrian Supreme Court. In the view of the Commission ’ s Delegate, on the other hand, since the guidelines published by the Conference of the Austrian Bar Associations did not apply to the Convention institutions, the applicant ’ s lawyer could not be criticised in this respect. However, the Delegate agreed with the Government that short notes and letters written by the lawyer to Strasbourg should not have been charged in the same way as substantial submissions.",
"In the circumstances of the case, the Court is unable to award the totality of the sums claimed. It considers, on an equitable basis, that the applicant is entitled, subject as provided below, to be reimbursed ATS 50,000 referable to the proceedings before the Commission after their adjournment and those before the Court.",
"57. To recapitulate, the sums allowed by the Court for costs and expenses total ATS 80,606. This amount has to be reduced by 4,500 French francs which the applicant has received, for laywer ’ s fees, by way of legal aid from the Council of Europe and increased by any turnover tax that may be due on the resulting balance or any part thereof."
] |
25 | Mazurek v. France | 1 February 2000 | The applicant, born of an adulterous relationship, had his entitlement to inherit reduced by half because a legitimated child also had a claim to their mother’s estate, according to the law in force at that time (1990). He complained in particular of an infringement of his right to the peaceful enjoyment of his possessions. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 of Protocol No. 1 (right to the peaceful enjoyment of one’s possessions) to the Convention. With regard to the situation in the other member States of the Council of Europe, it noted in particular, contrary to the French Government’s assertions, a clear trend towards the abolition of discrimination in relation to adulterine children. The Court could not disregard such developments in its interpretation – which was necessarily evolutive – of the relevant provisions of the Convention. The Court further found in the present case that there was no good reason for discrimination based on adulterine birth. In any event, the adulterine child could not be reproached with events which were not his fault. Yet because the applicant was the child of an adulterous union he had been penalised as regards the division of the estate. The Court therefore concluded that there had been no reasonable relationship of proportionality between the means employed and the aim pursued. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant, Claude Mazurek, is a French national who was born in Avignon in 1942 and lives at La Grande-Motte.",
"8. The applicant’s mother died on 1 August 1990 of HIV (human immunodeficiency virus) encephalopathy, having been infected after a blood transfusion. She left two children: a son, Alain, born out of wedlock in 1936 and legitimised by his mother’s marriage in 1937, and the applicant, born in 1942, on whose birth certificate only his mother’s name was entered as a parent, she being still married at the time of his birth, but living separately from her husband. They divorced in July 1944.",
"9. On 30 April 1991 Alain brought an action against the applicant in the Nîmes tribunal de grande instance seeking an order that his mother’s estate be divided by a notary, that the applicant, as an adulterine child, could not lay claim to more than a quarter of it and that there be deposited with the notary a sum of money unlawfully withdrawn by the applicant from his mother’s account and transferred to a personal account while their mother was in a coma.",
"10. In his pleadings, the applicant agreed to the appointment of a notary to divide the estate, but submitted that Article 760 of the Civil Code, which restricts the inheritance rights of adulterine children, was discriminatory and incompatible with Articles 8 and 14 of the Convention, the provisions of the United Nations Convention on the Rights of the Child and Article 334 of the Civil Code, which enshrines the principle that children born in wedlock and children born out of wedlock have equal rights. He requested the court to hold that he had the same inheritance rights as a legitimate child. He also submitted that the amount which he had been requested to deposit with a notary had been transferred as a gift which he was not required to bring into account, as evidenced by a letter from the deceased of 20 January 1988, a general power of attorney for bank transactions, dated 2 February 1988, and witness statements.",
"11. In a judgment of 21 January 1993 the court ordered the estate to be divided. With regard to the applicant’s rights, it referred to Article 760 of the Civil Code (see paragraph 17 below).",
"The court conceded that Article 760 of the Civil Code represented a derogation from the principle, enshrined in the first paragraph of Article 334 of the Civil Code, that children should be treated equally regardless of descent, but held that its purpose was not to discriminate between children on the grounds of their birth but to ensure minimum compliance with marital commitments on the part of the married parent who engenders an illegitimate child. It accordingly concluded that Article 760 was necessary in order to protect the rights of others and that it was a principle of public policy which was not contrary to the Convention.",
"In respect of the sum which had been withdrawn by the applicant and transferred to his own account, the court held that the applicant had merely executed his mother’s intention to gift him a sum of money in addition to his share in the estate and that although that gift should notionally be brought into account in calculating the disposable portion of the estate, it was inappropriate as matters stood to order that the amount in question be deposited with the notary dividing the estate.",
"12. The applicant appealed, arguing, among other things, that Article 760 of the Civil Code was incompatible with Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.",
"13. In a judgment of 24 March 1994, the Nîmes Court of Appeal upheld the provisions of the lower court’s judgment ordering the estate to be divided and determining the applicant’s inheritance rights. It considered, however, that the amount transferred to the applicant’s account should be returned to the estate to be divided because he had not proved that his mother had intended it as a gift.",
"14. With regard to the complaint that the discrimination between legitimate children and adulterine children was incompatible with the provisions of the Convention, the Court of Appeal held:",
"“In the instant case the provisions of Article 760 of the Civil Code, which limit the inheritance rights of adulterine children, are directly linked to the French legal principle of public policy according to which marriage should be monogamous and the interests of the spouse and legitimate children of an adulterer protected.",
"Article 760 was not enacted in order to disadvantage adulterine children, but to protect the interests of the spouse and legitimate children of an adulterer; the provision does not therefore intentionally discriminate against adulterine children, but ensures the protection of children born of the marriage who might be disadvantaged on the division of their parents’ estate by the presence of an adulterine child who, on account of the predecease of the non-adulterous spouse and the system of matrimonial property elected by the spouses, might otherwise inherit from his or her parent both the assets from that parent’s estate and the assets from the estate of the spouse who is not his or her parent.",
"The court was thus properly entitled to hold that it was not the intention of the legislature to discriminate between children on the grounds of their birth, but to ensure minimum compliance with the marital obligations of a married parent with regard to his or her legitimate children; the court was also properly entitled to hold that Article 760 of the Civil Code was a provision necessary for the protection of the rights of others, that it was a French legal principle of public policy and that it was not contrary to the European Convention on Human Rights.”",
"15. The applicant appealed on points of law to the Court of Cassation, which delivered its judgment on 25 June 1996.",
"With regard to the applicant’s complaint of unjustified discrimination on grounds of birth between children born in wedlock and children born out of wedlock, contrary to Articles 8 and 14 of the Convention, the Court of Cassation held that inheritance rights had nothing to do with respect for private and family life guaranteed by Article 8 of the Convention.",
"In respect of the complaint that the Court of Appeal had ordered the sum transferred to the applicant’s account to be returned to the estate to be divided, the Court of Cassation held that in deciding that the facts of the case had not shown any intention on the part of the deceased to bestow a gift on her son in advance of the division of her estate the Court of Appeal had determined an issue which it alone had jurisdiction to determine.",
"16. On 14 January 1994 the Commission of the Compensation Fund for Transfusion Patients and Haemophiliacs awarded the applicant, in his personal capacity, compensation of 40,000 French francs (FRF) and assessed the deceased’s loss at FRF 500,000, to be paid to her heirs. That amount was thus paid to the notary dealing with the estate and the applicant subsequently received one quarter of it."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW",
"A. The Civil Code",
"1 7. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972, provide:",
"Article 745",
"“Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages.",
"The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.”",
"Article 757",
"“Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.”",
"Article 760",
"“Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate.",
"The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.”",
"B. The United Nations Convention on the Rights of the Child",
"1 8. The relevant provisions of the United Nations Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows:",
"Article 2",
"“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.",
"2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”",
"C. Suggestions and proposals for reform",
"1 9. In a report entitled “Status and Protection of Children”, adopted in May 1990, the Conseil d’Etat referred to the issue of equal treatment of children regardless of descent in the following terms:",
"“The restriction of adulterine children’s inheritance rights is the subject of much criticism. It appears to be in direct conflict with the principle that children should be treated equally regardless of descent and constitutes an infringement of the principles enshrined in the Civil Code according to which children born out of wedlock have, in general, the same rights as children born in wedlock. Such discrimination, based on descent, also appears to be contrary to the European Convention on Human Rights and to the Convention on the Rights of the Child. It should therefore be abolished.”",
"The Conseil d’Etat ’s report also sets out socio-demographic data. It emerges from the report that as at 1 January 1990 one in ten children had been born out of wedlock, this being true of more than one in four births in 1988. In addition to that, major shifts in family models appeared during the second half of the 1970s, “with a 30% decrease in the annual number of marriages between 1975 and 1985, 2.5 times more births out of wedlock over the same period, and a rise in the number of cohabiting unmarried couples so sharp that it is now the typical first union for two in three French citizens ... as for divorces, the annual figure had already almost doubled between 1960 and 1975, and it doubled again during the next ten years”.",
"20. A government bill, registered on 23 December 1991 (no. 2530), proposed bringing the inheritance rights of adulterine children into line with that of other children. It was subsequently abandoned.",
"21. On 3 February 1998 the Minister of Justice instructed Mrs Irène Théry, a sociologist, to study shifts in family models. The report, entitled “Couples, Descent and Kinship today” was submitted on 14 May 1998. It found that there was no sociological fracture according to whether couples were married or not, and criticised the inegalitarian status of adulterine children.",
"22. In August 1998 a working group on family law was set up by the Minister of Justice to consider, among other things, “possible changes to the law in the light of factual developments” in order to avoid “a gulf developing between [citizens’] aspirations and the law”. Chaired by Professor Françoise Dekeuwer-Defossez, the commission submitted its report on 14 September 1999. It contained a set of proposals for “renovating family law”. In particular, the commission recommended “giving full effect to the principle that children should be treated equally regardless of descent” as follows:",
"“The principle that children should be treated equally regardless of descent was one of the two guiding principles underlying the 3 January 1972 Act. At the time, a compromise had to be made, however, and full equality was not achieved. Today, it appears essential to complete the exercise and achieve full equal treatment of children regardless of descent. In order to attain that objective, full equality of status needs to be achieved and the right to affiliation made equal so that the possibility of establishing or contesting descent will no longer depend on the parents’ legal status.",
"SS1. Achieving equality of status",
"The working group considers, unanimously and unhesitatingly, that the time has come to abolish the legal restrictions on adulterine children’s inheritance rights. The current position is that their rights are halved where they are competing with half- brothers and sisters or with the adulterer’s spouse.",
"A number of arguments militate strongly in favour of abolition. The first is quite simply chronological. The solutions adopted by the 3 January 1972 Act constituted, according to the most eminent commentators, ‘an inglorious trade-off’, the fruit of a ‘Law of compromise’. That compromise was necessary as a transitional phase during which the principle of equality which the Act had intended to promote could be progressively inserted into our law. Twenty-seven years later, the transitional phase has come to an end. The second argument stems from the case-law of the European Court of Human Rights. It is likely that the Court will soon find that the French rule violates the Convention, and it would be preferable for an amendment of our law not to appear to be imposed from outside. Lastly, and above all, the solution favoured by the group of making the law of descent equal by abolishing divisive classifications makes it more and more difficult to maintain inequalities based on conditions of birth, without inevitably incurring the two-fold complaint of injustice and contradiction.",
"Is there a danger that the importance of marriage will be lessened by undermining the trust which husbands and wives have placed in each other? The group does not think so. Adultery is clearly a serious injury inflicted on the spouse who is the victim of it and, over and above the spouses, on the children born of their marriage. In more legal terms, adultery is always an instance of misconduct and can be serious misconduct, for the duty of fidelity is inherent in the marital commitment. If such misconduct must be punished, however, it is only those who have committed it who should be punished and certainly not, we feel, the child born as a result. It is contradictory to declare on the one hand that parents have equal responsibility for their children irrespective of how they choose to lead their life as a couple and, on the other hand, to impose on a child, on the grounds that he or she is adulterine, the consequences of the parent’s infidelity.",
"More specifically, to enforce marital duties through inheritance rights appears to be neither fair nor appropriate. For one thing, relations between husband and wife will often have been broken off well before the birth of the child, and there is therefore something hypocritical about imposing on that child the ties of a commitment from which those who entered into it have long since freed themselves. For another thing, even if the marital ties have remained intact until the end, is it not vain to hope that a hereditary advantage will succeed in healing a split which by its very nature belongs to a completely different realm? Moreover, as the law currently stands, it is almost always possible for the child’s parent to ‘erase’ this reduction in rights by legitimising – after divorcing and re-marrying, or, without divorcing, by seeking a court order – or even adopting the child. Far from making the rule more easily bearable, that option has the effect of leaving the child’s ultimate destiny to the discretion of the adulterous parent. Thus the current provisions have the effect of multiplying inequalities, without succeeding in strongly affirming the importance of the marital commitment.",
"We add that we are not in favour of an intermediate solution whereby the current protection afforded by law to children born in wedlock (particularly Articles 760 and 915) would be abolished, while the protection afforded to the wronged spouse, the direct victim of the adultery, under Articles 759 and 767, second paragraph, would be maintained. The effect of that solution would be minimum compliance with the international conventions, whose sole concern is to secure equality between children, whereas the protective provisions specific to the spouse apply, by definition, only where the deceased leaves no other issue. Such a hybrid solution would merely be a means of failing to resolve the debate. What is actually at issue is not only material equality between children born of different partnerships in the division of their common parent’s estate, but, in both more abstract and stronger terms, equality of the rights conferred by descent.",
"Proposal:",
"– Abolish the restrictions on adulterine children’s inheritance rights.”",
"THE LAW",
"23. The applicant alleged that he was a victim of a violation of Articles 8 and 14 of the Convention and of Article 1 of Protocol No. 1 because the provisions applicable in French civil law limited his inheritance rights over his mother’s estate as compared to those of his half-brother.",
"24. The Court considers that since division of the estate had already begun when the application was lodged, the complaint should first be examined under the head of an alleged infringement of the applicant’s right to the peaceful enjoyment of his possessions, in conjunction with the principle of non-discrimination (see, mutatis mutandis, the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 38).",
"I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION",
"25. The applicant complained that, owing to the application by the French courts of Article 760 of the Civil Code, he was awarded a smaller portion in his mother’s estate than the portion awarded to his half-brother, by reason of his being an adulterine child.",
"26. Article 1 of Protocol No. 1 and Article 14 of the Convention provide:",
"Article 1 of Protocol No. 1",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"Article 14 of the Convention",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"27. The applicant stated that his half-brother was a child born out of wedlock who was subsequently legitimised by his parents’ marriage. He submitted that the distinction drawn, as regards inheritance rights, between a child born out of wedlock subsequently legitimised by marriage and a competing adulterine child did not pursue a legitimate aim. He added that, even if it were sought to defend the institution of marriage and the traditional family, the difference in treatment of an adulterine child as compared to a legitimised child born out of wedlock was unacceptable since, in both cases, the child had been conceived out of wedlock. Thus equality of rights would not impede in any way the resolution of a situation which had not arisen within marriage, but outside marriage. Furthermore, the protection of the non-adulterous spouse was an irrelevant issue here since the divorce had been pronounced on 4 July 1944.",
"28. The applicant went on to observe that the domestic courts’ disregard for the deceased’s intention to make him a gift made the differentiation between his inheritance rights and those of his half-brother even more illegitimate.",
"29. The applicant submitted that the means employed to protect the legitimate family were disproportionate to the aim pursued.",
"30. He pointed out that the Convention, which was a dynamic text and entailed positive obligations for States, was a living instrument, to be interpreted in the light of present-day conditions and that great importance was attached today in the member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Accordingly, very weighty reasons had to be advanced before a difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention.",
"31. Basing himself on European comparative law, the applicant submitted, in response to the Government’s arguments, that France stood out in the Council of Europe by its maintenance of an excessively restrictive and discriminatory position on this question.",
"32. With regard to the State’s margin of appreciation, the applicant argued that no grounds or evidence had been adduced to justify making a special case for France in the realm of morality such as to render implementation of the constantly reaffirmed principle of equality impossible.",
"33. The Government submitted that the provisions of Article 760 of the Civil Code were based on very solid reasons which pursued a legitimate aim and complied with the relationship of proportionality required by the Court. They added that, according to the case-law, a distinction was discriminatory if it had no objective and reasonable justification.",
"34. With regard to justification, the Government stressed that, in the spirit of the 3 January 1972 Act acknowledging equal treatment of children regardless of descent, Article 760 of the Civil Code had been introduced as an exception designed to protect the legitimate family, which was based on the institution of marriage from which flowed rights and obligations, such as the duty of fidelity.",
"35. They added that to grant an adulterine child exactly the same rights as a legitimate child would be tantamount to having no regard whatsoever to a situation established on the basis of marital trust, and that the protection of the legitimate family was thus ensured by affording special protection to the members of that family who were particularly affected by the adultery, that is, the spouse and the legitimate children.",
"36. The Government submitted that such an aim was legitimate.",
"37. They also submitted that the means employed were proportionate to the aim pursued and stressed that the State had a margin of appreciation in this field.",
"38. They added that the member States of the Council of Europe did not have a shared approach to the rights of adulterine children and that the Court had taken that factor into consideration in its judgment in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87).",
"39. The Government considered, mutatis mutandis, that the lack of a shared approach within the Council of Europe should result in the States being permitted a margin of appreciation sufficient to allow them to determine measures to protect the members of a legitimate family where they were competing with adulterine children in their parent’s estate. They also relied on the existence of moral interests which fell to be considered in this type of situation.",
"40. In any event, the Government considered that the measures taken were not disproportionate to the aim pursued.",
"Adulterine children’s rights were restricted only in exceptional circumstances, that is, where they were competing with a child born in wedlock or one born out of wedlock but not of an adulterous relationship. They added that there were several ways in which an adulterous spouse could erase that inequality, such as legitimising the child through marriage or by a court order.",
"41. The Court points out first of all that Article 1 of Protocol No. 1 in substance guarantees the right of property (see the Inze judgment cited above, p. 17, § 38).",
"42. Since the applicant’s mother had died at the material time, the Court notes that the applicant had automatically acquired hereditary rights over her estate under Articles 745, 757 and 760 of the French Civil Code. The estate was therefore the joint property of the applicant and his half-brother.",
"43. The facts of the case therefore attract Article 1 of Protocol No. 1, and Article 14 of the Convention can be applied in conjunction with that provision.",
"A. Whether there was a difference in treatment",
"44. The Court notes at the outset that the Government do not dispute the fact that, under the relevant Articles of the Civil Code, the two half-brothers were not in the same position with regard to their mother’s estate.",
"45. The Court notes that it was on account of his status as an adulterine child that the applicant’s share in the estate was reduced, in favour of his half-brother, by half of the portion to which he would have been entitled if he had been a child born in wedlock or one born out of wedlock but not of an adulterous relationship, and that such difference in treatment is expressly provided for in Article 760 of the Civil Code.",
"46. The Court reiterates on this point that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 31).",
"47. It must therefore be determined whether the alleged difference in treatment was justified.",
"B. Justification for the difference in treatment",
"48. For the purposes of Article 14 of the Convention, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, the Inze judgment cited above, p. 18 § 41, and the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24).",
"49. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and children born out of wedlock as regards their civil rights. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which has not been ratified by France. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 37-38, § 78, and the Inze judgment cited above, p. 18, § 41).",
"50. The Court considers that the aim relied on by the Government, that is, the protection of the traditional family, is arguably a legitimate one.",
"51. The question remains whether, regarding the means employed, the establishment of a difference of treatment between adulterine children and children born in wedlock or out of wedlock but not of an adulterous relationship, with regard to inheritance under their parent, appears proportionate and appropriate in relation to the aim pursued.",
"52. The Court notes at the outset that the institution of the family is not fixed, be it historically, sociologically or even legally. Thus the 3 January 1972 Act constituted, among other things, a major step forward in the development of family law and the position of children born out of wedlock, since it settled the question of establishing the descent of all children. The United Nations Convention on the Rights of the Child, which enshrined the prohibition on discrimination based on birth, was adopted on 20 November 1989 (see paragraph 18 above). Subsequently, in May 1990 the Conseil d’Etat published a report recommending, in the light of socio-demographic data, the abolition of discrimination against adulterine children in inheritance matters (see paragraph 19 above). In December 1991 a bill proposed bringing the inheritance rights of adulterine children into line with those of other children (see paragraph 20 above). In 1998 the Minister of Justice set up two projects, one designed to study shifts in family models from a sociological angle, and the other to consider possible changes to the law in the light of factual developments. The first report, submitted on 14 May 1998, criticised the inegalitarian status of adulterine children (see paragraph 21 above) while the second report, submitted on 14 September 1999, recommended abolishing the restrictions on adulterine children’s inheritance rights (see paragraph 22 above). With regard to the situation in other member States of the Council of Europe, the Court notes, contrary to the Government’s assertions (see paragraph 38 above), a distinct tendency in favour of eradicating discrimination against adulterine children. It cannot ignore such a tendency in its – necessarily dynamic – interpretation of the relevant provisions of the Convention. In that connection, the reference made by the Government to the Rasmussen judgment (see paragraph 38 above) is not convincing, since the factual and temporal circumstances have now changed.",
"With regard to the argument based on the moral dimension of the case (see paragraph 39 above), the Court cannot but take account of the socio-demographic findings at the material time and, among other things, the 1991 bill recommending the abolition of all discrimination.",
"53. It is not the Court’s task to rule on whether the applicant’s mother had or had not breached the commitments entered into on her marriage with regard to the legitimate family unit. It merely notes that the applicant’s mother and her husband were living apart when the applicant was born and that they divorced very soon thereafter (see paragraph 8 above).",
"54. The only issue submitted to the Court concerns the question of inheritance from the mother by her two children, one born out of wedlock and the other adulterine. The Court does not find any ground in the instant case on which to justify discrimination based on birth out of wedlock. In any event, an adulterine child cannot be blamed for circumstances for which he or she is not responsible. It is an inescapable finding that the applicant was penalised, on account of his status as an adulterine child, in the division of the assets of the estate.",
"55. Having regard to all the foregoing, the Court concludes that there was not a reasonable relationship of proportionality between the means employed and the aim pursued.",
"There has therefore been a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 14",
"56. Having regard to the conclusion set out in the previous paragraph and to the fact that the arguments advanced by the parties are the same as those examined in the context of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, the Court does not consider it necessary to examine this complaint.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"57. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"58. The applicant claimed under the head of pecuniary damage the difference between the amount distributed to him and the amount he would have received if the estate had been halved. The Government did not contest that claim. In the circumstances, the Court holds that the applicant should be awarded 376,034.61 French francs (FRF) for pecuniary damage.",
"59. The applicant also claimed compensation for non-pecuniary damage in the sum of FRF 100,000. The Government disputed that claim. The Court decides, on an equitable basis, to award the applicant FRF 20,000 for non-pecuniary damage.",
"B. Costs and expenses",
"60. The applicant sought reimbursement of all the costs which he had incurred both in the domestic courts and before the Convention institutions, that is FRF 55,322.69 and FRF 72,360 respectively.",
"61. The Government argued that account should be taken only of the costs incurred in the European proceedings, on production of the relevant vouchers.",
"62. The Court considers that the costs incurred, both in the domestic courts and before the Convention institutions, were intended to remedy the alleged violation of the Convention. It awards, on an equitable basis, an aggregate sum of FRF 100,000 under that head.",
"C. Default interest",
"63. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum."
] |
26 | Camp and Bourimi v. the Netherlands | 3 October 2000 | The first applicant and her baby son (the second applicant) had to move out of their family home after the first applicant’s partner died intestate, before marrying her and recognising the child (as had been his stated intention). Under Dutch law at the time the deceased’s parents and siblings inherited his estate. They then moved into his house. The child was later declared legitimate, but as the decision was not retroactive, he was not made his father’s heir. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the Convention with respect to the second applicant. It observed that the child, who had not obtained legally-recognised family ties with his father until he had been declared legitimate two years after his birth, had been unable to inherit from his father unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This had undoubtedly constituted a difference in treatment between persons in similar situations, based on birth. According to the Court’s case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention. The Court observed in this respect that there had been no conscious decision on the part of the deceased not to recognise the child the first applicant was carrying. On the contrary, he had intended to marry her and the child had been declared legitimate precisely because his untimely death had precluded that marriage. The Court could therefore not accept the Dutch Government’s arguments as to how the deceased might have prevented his son’s present predicament and considered the child’s exclusion from his father’s inheritance disproportionate. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised ( erkenning ) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother.",
"9. The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house.",
"10. On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court ( Arrondissementsrechtbank ) in summary proceedings ( kort geding ) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation ( brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying.",
"11. The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 's ‑ Hertogenbosch Court of Appeal ( Gerechtshof ) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law ( beroep in cassatie ) to the Supreme Court ( Hoge Raad ).",
"12. Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father.",
"13. On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary.",
"14. The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house.",
"15. The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary ( notaris )."
] | [
"II. RELEVANT DOMESTIC LAW",
"16. Legally recognised family ties ( familierechtelijke betrekkingen ) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code ( Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised ( erkenning ) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC).",
"17. Paragraph 2 of Article 1:215 provided as follows:",
"“The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.”",
"18. It appears from the explanatory memorandum ( Memorie van Toelichting ) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship.",
"A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted.",
"19. On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties.",
"20. According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require.",
"21. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC).",
"proceedings before the commission",
"22. The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death.",
"23. On 8 September 1997 the Commission declared the application admissible.",
"24. In its report of 23 April 1999 (former Article 31 of the Convention) [ Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.",
"THE LAW",
"I. alleged violation of article 8 of the Convention",
"25. The applicants complained that they were hindered in the development of a family life with each other and with the relatives of Mr A. Bourimi. They relied on Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"26. The applicants maintained that the legal framework in place meant that no legally recognised family ties existed between Sofian and his father and the latter's relatives until the granting of letters of legitimation. As a result, Sofian's integration into his family – including that of his father – from birth was not rendered possible. This affected the development of normal family ties between Ms Camp and Sofian but also between each of the applicants and the relatives of Mr A. Bourimi. The impossibility for Sofian to take on his father's family name until the granting of letters of legitimation and the impossibility of inheriting from his father created a situation where Sofian was treated less favourably than a legitimate child.",
"27. The Government agreed with the Commission in that they failed to see how the relationship between Ms Camp and Sofian could have been affected to an appreciable extent, either prior to or after the granting of letters of legitimation, by the fact that the family ties between Sofian and his deceased father were not legally recognised when Sofian was born. Similarly, the Government were of the opinion that it had not been substantiated in what way the relationship between Ms Camp and the relatives of Mr A. Bourimi – even assuming this could be characterised as constituting “family life” within the meaning of Article 8 – had been adversely affected.",
"28. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 55). It considers that the absence of legally recognised family ties between Sofian and his father did not constitute an interference by the public authorities with the family life of Sofian and his mother who, as far as the Court is aware, have always lived together. Furthermore, and without embarking on an examination of the question whether the ties between Ms Camp and the relatives of Mr A. Bourimi are to be equated with “family life”, the Court does not find that obstacles to the development of those ties were imputable to an action or lack of action on the part of the authorities.",
"Accordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi.",
"29. The Court further observes that the complaint in respect of the family life between Sofian and his father's relatives is closely related to the applicants' contention that the law in force allowed these relatives to treat Sofian differently from a child who, unlike Sofian, had a legally recognised family relationship with its father from birth. The Court considers that this issue falls more appropriately to be examined under Article 14 of the Convention taken in conjunction with Article 8.",
"ii. alleged violation of article 14 of the Convention taken in conjunction with article 8",
"30. The applicants complained that Sofian was treated differently from children who had the status of legitimate children from birth, in breach of Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"31. In the opinion of the applicants, no weighty reasons existed which could justify the situation whereby only children who had a legally recognised family relationship with their father at the time of the latter's death could inherit from that father. They agreed with the Commission that in the instant case such justification could not be found in the need to protect other heirs from having to give up a lawfully obtained inheritance.",
"32. The Government argued that the reason for the difference in treatment lay in the provision of a general protection of the legitimate interests of third parties, in particular other heirs, in cases where family ties were established through letters of legitimation. They argued in this respect that heirs should enjoy the certainty that they would not have to give up a lawful inheritance to a descendant of the deceased who might turn up unexpectedly years later. The protection of their interests was achieved by denying retroactive force to letters of legitimation. Although the Government recognised that in certain circumstances the result of this system could be less than ideal – for which reason the relevant legislation had now been changed – this was not necessarily tantamount to a violation of the Convention. Moreover, Netherlands law offered several possibilities, such as the recognition by Sofian's father of the unborn child or his making of a will, which would have prevented the situation with which the applicants were confronted.",
"33. The Court has previously examined alleged differences in treatment in matters of succession both under Article 14 taken in conjunction with Article 8 (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 24, § 54, and the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 40, and Mazurek v. France, no. 34406/97, § 43, ECHR 2000-II). In the present case, Article 14 has been relied on in conjunction with Article 8, and the Court will therefore examine this issue in the light of these two provisions.",
"34. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).",
"35. Despite the fact that Article 8 does not as such guarantee a right to inherit, the Court has previously accepted that matters of intestate succession between near relatives nevertheless fall within the scope of that provision as they represent a feature of family life (see the Marckx judgment cited above, pp. 23-24, §§ 52-53). The fact that Mr A. Bourimi's death occurred before Sofian was born is no reason for the Court to adopt a different approach in the present case.",
"It follows that Article 14 taken in conjunction with Article 8 applies.",
"36. The Court observes that Sofian, whose family ties with his father were not legally recognised until letters of legitimation had been granted, was unable to inherit from his father, unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This undoubtedly constitutes a difference in treatment between persons in similar situations, based on birth.",
"37. For the purposes of Article 14 a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24).",
"38. According to the Court's case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention (see the Inze v. Austria judgment cited above, p. 18, § 41, and Mazurek, cited above, § 49).",
"As noted above (paragraph 36), in the instant case Sofian was treated differently not only from children born in wedlock but also from children who, although born out of wedlock, had been recognised by their father. Although the letters of legitimation took the place of such recognition (see paragraph 18 above), Sofian was nevertheless still unable to inherit from his father. In the Court's view, similarly weighty reasons are required for this latter difference to be compatible with the Convention in the circumstances of the present case. The Court observes in this respect that there was no conscious decision on the part of Mr A. Bourimi not to recognise the child Ms Camp was carrying. On the contrary, he had intended to marry Ms Camp and letters of legitimation had been granted precisely because his untimely death had precluded that marriage (see paragraphs 8, 12 and 17-18 above). In these circumstances, the Court cannot accept the Government's arguments as to how Mr A. Bourimi might have prevented his son's present predicament (see paragraph 32 above).",
"39. Although the protection of the rights of other heirs may constitute a legitimate aim, when it comes to the question of the proportionality of the means chosen to achieve this aim the Court observes that Sofian was not a descendant of whose existence the other heirs were unaware. Here, there is no indication that the exigencies of the situation required the level of protection that was afforded to Mr A. Bourimi's parents and siblings to the detriment of his son. The Court considers that in these circumstances Sofian's exclusion from his father's inheritance was disproportionate. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.",
"iii. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"40. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"41. The applicants submitted that their claims for just satisfaction related solely to the breach of Article 14 of the Convention taken in conjunction with Article 8.",
"42. The Government argued that, given the subsidiary nature of the provision, there was no room for application of Article 41 since it could not be excluded that the applicants would be successful if they lodged judicial proceedings for tort against the State.",
"Alternatively, the Government were of the opinion that the reasons why Ms Camp and Mr A. Bourimi had not availed themselves of other legal possibilities to establish a legally recognised family relationship between father and child, such as recognition or the making of a will, fell within the private sphere. Therefore, any financial or emotional prejudice suffered as a result should not be fully attributed to the Government.",
"43. The Court considers relevant, in the first place, that to oblige the applicants to commence an action for tort in the Netherlands would prolong the total length of the proceedings relating to the applicants' rights under the Convention even more (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 ( Article 50 ), Series A no. 14, pp. 8-9, § 16, and the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 ( Article 50 ), Series A no. 285 ‑ C, p. 57, § 17).",
"In this context it is further observed that it has not been established by the Government that proceedings for tort would be successful.",
"44. Moreover, the Court recalls its case-law under former Article 50 of the Convention to the effect that just satisfaction may be granted by the Court unless a national law remedy is able to bring about a result as close to restitutio in integrum as possible in the nature of things (see, for example, the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20; the Ringeisen v. Austria judgment of 22 June 1972 ( Article 50 ), Series A no. 15, p. 8, § 21; and the Sunday Times v. the United Kingdom judgment of 6 November 1980 ( Article 50 ), Series A no. 38, pp. 8-9, § 13). The question arises whether proceedings for tort, or any other kind of proceedings for that matter, would indeed be capable of bringing about such a result in the present case given that the impossibility for Sofian to obtain the status of heir of his father would not be remedied.",
"Finally, the Court observes that the Government have declined to give the applicants the compensation which they claimed (see paragraph 4 above; see also the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20, and the Ringeisen judgment cited above, p. 9, § 22).",
"45. Consequently, the Court considers that it should examine the merits of the applicants' claims for just satisfaction.",
"46. In addition, the Court cannot accept the Government's argument to the effect that they should not be held fully responsible for the entire financial consequences of private choices made by Ms Camp and Mr A. Bourimi. The Court has already rejected this argument when considering the merits and reiterates, under this head, its reasons for doing so (see paragraph 38 above). It would add that Sofian's parents, who had intended to get married, could hardly have been expected to anticipate that he would become the victim of discriminatory legislation.",
"A. Damage",
"1. Pecuniary damage",
"47. The applicants claimed a total of 560,844.75 Netherlands guilders (NLG), this amount comprising the current value of the estate of Mr A. Bourimi, a sum of money which he had in his possession on the day he died and which had been handed over to his parents, as well as an amount of overpaid income tax which had been given to the deceased's parents by the tax authorities.",
"In respect of the current value of the estate, the applicants based themselves on a letter dated 14 March 2000 from the notary in charge of the winding up of the estate.",
"The applicants also sought compensation for removal expenses incurred by Ms Camp on two occasions. They estimated these costs at NLG 30,000.",
"Finally, the applicants submitted that pecuniary damage had been caused by the necessity to pay rent whereas they could have lived virtually for free in Mr A. Bourimi's house had this been inherited by Sofian.",
"48. The Government argued that the value of the estate should be determined at the time of death of Mr A. Bourimi, and that developments which occurred or assets which were acquired after his death should have no bearing on this determination.",
"They further refuted that there was any connection between a violation of the Convention and the applicants' moving out of the house.",
"49. The Court accepts that Sofian suffered pecuniary damage the amount of which is equivalent to the value of his father's estate, which he would have obtained had he had a legally recognised family relationship with his father at the time of the latter's death (see the Vermeire judgment cited above, p. 84, § 31).",
"As to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 9 February 2000 (see paragraph 15 above). Consequently, it was the value which the estate had at that time which Sofian would have obtained.",
"The Court further considers that the sums of money transmitted to the parents of Mr A. Bourimi prior to the distribution of the estate also qualify for compensation under this head.",
"As to removal expenses and rent, the Court notes that these items have not been sufficiently quantified. Moreover, Ms Camp left the house after reaching a settlement to that effect with the heirs of Mr A. Bourimi and at a time when the legal proceedings concerning her claim to remain in the house had not yet been concluded (see paragraph 14 above).",
"Noting that the bulk of the estate was only distributed very recently rather than shortly after Mr A. Bourimi's death in 1992, the Court does not deem it appropriate to make an award for statutory interest.",
"50. The Court consequently awards Sofian NLG 560,844.75 in respect of pecuniary damage, which amount is to be paid to, and held by, Ms Camp for Sofian.",
"2. Non-pecuniary damage",
"51. The applicants submitted that they had suffered frustration, distress and anxiety in which respect they deemed compensation in the amount of NLG 50,000 reasonable.",
"The Government were of the view that any finding of a violation would constitute sufficient just satisfaction under this head.",
"52. Even though the finding of a violation of the Convention concerned Sofian only, the Court accepts that Ms Camp also suffered distress. Taking its decision on an equitable basis, the Court awards the applicants compensation in the amount of NLG 6,750.",
"B. Costs and expenses",
"53. The applicants claimed an amount of NLG 71,670 for lawyers' fees and costs incurred in bringing the application. They added that the complaint concerning the difference in treatment had occupied most of the time which their legal representatives had spent on the case.",
"They also sought reimbursement in the amount of NLG 904.75 for the fees of the notary who had provided the applicants with written statements of the contents and value of the estate.",
"54. The Government regarded the lawyers' fees as exaggerated. Moreover, they submitted that the question whether both or only one of the applicants are or is a victim of a violation of the Convention should also be taken into account.",
"55. In relation to the claim for costs of legal representation the Court, deciding on an equitable basis, awards the applicants the sum of NLG 30,000, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe.",
"It further considers that the notary's fees also qualify for compensation in the present context. In respect of this claim, therefore, the Court awards the applicants the sum of NLG 904.75.",
"C. Default interest",
"56. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 6% per annum."
] |
27 | Pla and Puncernau v. Andorra | 13 July 2004 | The first applicant, an adopted child, was disinherited and his mother, the second applicant, consequently lost her right to the life tenancy of the family estate after the Andorran courts interpreted a clause in a will – stipulating that the heir must be born of a “legitimate and canonical marriage” – as referring only to biological children. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It noted that the first applicant’s parents had a “legitimate and canonical marriage” and there was nothing in the will in question to suggest that adopted children were excluded. The domestic courts’ decision had amounted to “judicial deprivation of an adopted child’s inheritance rights” which was “blatantly inconsistent with the prohibition of discrimination” (paragraph 59 of the judgment). | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The first applicant, Mr Antoni Pla Puncernau, who was born in 1966, is the adopted son of the second applicant, Mrs Roser Puncernau Pedro. The second applicant was the first applicant ’ s supervisor, as Mr Pla Puncernau is mentally handicapped. They both lived in Andorra. She died when the proceedings were still pending before the Court.",
"A. Background to the case",
"11. In 1949 Mrs Carolina Pujol Oller, the widow of Francesc Pla Guash, died leaving three children: Francesc-Xavier, Carolina and Sara. She had made a will before a notary in 1939. Under the seventh clause of her will, she settled her estate on her son, Francesc-Xavier, as tenant for life. Should he be unable to inherit, the estate was to pass to his sister, Carolina, and if she was also unable to inherit, it was to pass to Sara ’ s son, Josep Antoni Serra Pla.",
"12. The testatrix indicated that Francesc-Xavier, the beneficiary and life tenant under her will, was to transfer the estate to a son or grandson of a lawful and canonical marriage. To that effect she had inserted the following clause in her will: “The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...” (“El qui arribi a ésser hereu haurà forçosament de transmetre l ’ herència a un fill o net de legítim i canònic matrimoni ... )”.",
"Should those conditions not be met, the testatrix had stipulated that the children and grandchildren of the remaindermen under the settlement would be entitled to her estate.",
"13. The beneficiary under the will, Francesc-Xavier, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed drawn up on 11 November 1969 before a notary in La Coruña ( Spain ), they adopted a child, Antoni, in accordance with the procedure for full adoption. They subsequently adopted a second child.",
"14. In 1995 Francesc-Xavier Pla Pujol made a will in which he left 300,506 euros (EUR) to his son, Antoni (the first applicant), and EUR 180,303 to his daughter. He named his wife, Roser (the second applicant), sole heir to the remainder of his estate. In a codicil of 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother ’ s will to his wife for life and to his adopted son, Antoni, as remainderman. The assets in question consisted of real estate. On 12 November 1996 Francesc-Xavier Pla Pujol died. The codicil was opened on 27 November 1996.",
"15. Accordingly, the only potential heirs to the estate under the will are the applicants, Antoni Pla Puncernau and his mother, and two sisters, Carolina and Immaculada Serra Areny, who are the great-grandchildren of the testatrix.",
"B. Civil action brought by the sisters Carolina and Immaculada Serra Areny to have the 1995 codicil set aside",
"16. On 17 July 1997 Carolina and Immaculada Serra Areny brought proceedings in the Tribunal des Batlles of Andorra to have the codicil of 3 July 1995 declared null and void and seeking an order requiring the applicants, as defendants in the proceedings, to return to the plaintiffs all the assets of the estate of Carolina Pujol Oller, their great-grandmother, and to pay them damages for unlawful possession of the assets.",
"17. In a judgment delivered on 14 October 1999, after hearing submissions from both sides, the Civil Division of the Tribunal des Batlles of Andorra dismissed the action for the following reasons:",
"“ ...",
"IV. In her will dated 12 October 1939, the testatrix stipulated that ... ‘ The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ... ’ [ ‘ El qui arribi a ésser hereu haurà forçosament de transmetre l ’ herència a un fill o net de legítim i canònic matrimoni ... ’ ].",
"In doing so, the will in question set up a family settlement si sine liberis decesserit. An analysis of this type of settlement shows that the purpose is to secure and preserve the estate by keeping it in the settlor ’ s family.",
"V. In interpreting the contents of the will in question, account has to be taken, as has previously been stated, of the testatrix ’ s intention in the light of the words used and the actual nature of the society in which she lived.",
"When the will was made, the Constitution had not been enacted and there was no ordinary statute or other relevant analogous provisions. Consequently, for the purposes of interpreting the wording in the will reference has to be made to customary law, the ius commune, deriving from the influence of Roman law as amended by canon law, and to the relevant case-law of the Andorran courts ... Foreign legislation, case-law and legal theory cannot apply in the present case.",
"The Corpus Iuris provided for the institution of adoption and included in the word ‘ child ’, children born out of wedlock and adopted children ... by providing for two forms of adoption: one undertaken under the authority of a princep and the other before a judge. The procedure followed in the first case was to ask the adoptive parent if he sought to take the adopted child as his legitimate child and to ask the adopted child if he consented. It was also stipulated that ‘ a consanguineous relationship is not instituted by deed but by birth or solemn adoption ’ (Diocletian and Maximianus, Codi 4, 19, 13). Furthermore, ‘ the father-child bond is not created by mere declarations or false assertions, even if both parties consent, but only by lawful marriage or solemn adoption ’ (Diocletian and Maximianus, Codi 4, 19, 14) ...",
"Consequently, according to the Roman concept of adoption, the adopted child leaves his family of origin and terminates all legal connection with it. On doing so he becomes the son of the adoptive parent ’ s family and, as such, takes the family name and above all acquires inheritance rights. This institution has essentially been used for inheritance purposes. Subsequently, two forms of adoption became available: full adoption and simple adoption [ menys plena ], the sole purpose of the latter being to safeguard the adopted child ’ s rights over the adoptive parent ’ s estate. Full adoption is based on the idea that adoption must replace or imitate biological filiation.",
"...",
"VI. ... If account is taken of the fact that adoption is a legal institution whose purpose is to enable childless couples to have children ... At that time adoption therefore already satisfied a need, with the adopted child being regarded as a legitimate child. That approach was subsequently confirmed by the Constitution and by statute.",
"It cannot therefore be said that, by inserting that clause, the testatrix intended to prevent adopted or non-biological children from inheriting her estate. If that had been her intention, she would have made express provision for it.",
"Accordingly, the codicil made by the late heir, Francesc-Xavier Pla Pujol, is compatible with the deceased Carolina Pujol Oller ’ s will and cannot be declared null ...”",
"C. Appeal to the High Court of Justice of Andorra",
"18. The Serra Areny sisters appealed to the High Court of Justice of Andorra. In a judgment delivered on 18 May 2000, after hearing submissions from both sides, the High Court set the lower court ’ s judgment aside. It allowed the appeal, set aside the codicil of 3 July 1995, declared that the appellants were the legitimate heirs to their great-grandmother ’ s estate and ordered the applicants to return the property in question. The grounds for the court ’ s judgment were as follows:",
"“II. ... Accordingly, the fundamental question to be resolved in the instant case is whether a child who has been adopted in accordance with the procedure for full adoption can be regarded as a child of a lawful and canonical marriage, as required by the testatrix ...",
"III. This question has to be resolved in accordance with the legal rules on the relationship of adopted children to their adoptive parents that were in force in 1939 and 1949, that is, between the time when Mrs Carolina Pujol i Oller made her will and the date of her death. A will becomes a legal deed from the date on which it is made in accordance with the statutory formalities. Accordingly, in interpreting the testamentary dispositions, regard must be had in the instant case to the legal position of adopted children in the social and family conditions existing in 1939 when the will was made and possibly in 1949 when the testatrix died ...",
"Legal commentators with first-hand experience of Andorran life stress that adoption is practically unheard of in Andorra (Brutails: ‘ Andorran customs ’, p. 122). That assertion is borne out by all the Andorran case-law reports, in which there is no reference to adoption. This silence on the subject is perfectly understandable, moreover, given that the provisions of Roman law on adoption could not easily be transposed to Andorran families living in the first half of the twentieth century for the following reasons: since the nineteenth century it could be regarded as an institution that had become obsolete and, to a certain extent, unnecessary given that the main purpose – to appoint a successor or heir – had been achieved in the Principality of Andorra through the institution of heretament (agreement, specific to Catalan law, on the succession of a living person), introduced by customary law. In that social and family context, it is difficult to sustain the proposition that, in setting up a family settlement in case her heir should die without leaving offspring of a lawful and canonical marriage, the testatrix was also referring to adopted children, given that, at the time, adoption was not an established institution in the Principality of Andorra.",
"The fact that in the instant case the adoptive parents were married to each other does not make their adopted child a legitimate child or a child born of the marriage. The distinction according to whether a child was born in or out of wedlock is relevant only to illegitimate children ... with regard to adopted children, the distinction according to whether a child was born in or out of wedlock does not apply. Accordingly, a child adopted by a couple is an adopted child and not a legitimate child or a child of the marriage.",
"Furthermore, the notarially recorded deed of adoption was drawn up in Spain in accordance with the Spanish procedure for full adoption ... The Law of 24 April 1958, amending the Civil Code, is applicable to the conditions and general effects of full adoption. Under that Law, the act of adopting a child gave him or her the status of the adoptive father/mother ’ s child, but did not give the child family status with regard to the adoptive parents ’ family. Under Article 174-VII of the Spanish Civil Code, adoption created a filial tie between the adoptive parent, the adopted child and his or her legitimate descendants, but not with the adoptive parent ’ s family. Moreover, the inheritance rights were also limited in the present case: the deed of adoption referred to the relevant 1960 Catalan legislation, that is, a compilation of 1960 Catalan civil law. Article 248 provided that on an intestate succession adopted children were entitled to inherit only from their adoptive father or mother and not from the rest of their adoptive parents ’ family. That rule reflected the idea that adoption created only a filial status and not a family status.",
"IV. Accordingly, from a legal standpoint, the adopted children of persons on whom an estate was settled by their father or mother were unconnected with the family circle with regard to the beneficiary ’ s ascendants. That approach can largely be explained by the minimal impact of adoption on the social and family consciousness in Andorra, both at the time when the will was made and when the testatrix died. The testatrix ’ s presumed intention has to be established in the light of the circumstances existing at the time of her death. The adopted children of her legitimate son or of the marriage were unconnected with the family circle both from a legal and a sociological point of view.",
"The purpose of a family settlement si sine liberis decesserit under Catalan law is to keep the family estate in the legitimate or married family and Catalan legal tradition has always favoured the exclusion of adopted children from such family settlements ... Thus, in order for adopted children to inherit under this type of settlement, there must be no doubt as to the testatrix ’ s intention to depart from the usual nature of this institution. In the instant case, the expression ‘ offspring of a lawful and canonical marriage ’, which appears in the 1939 will, does not suffice to infer that the testatrix intended to depart from the usual meaning given to family settlements si sine liberis decesserit under the Catalan and Andorran law of succession."
] | [
"III. Both parties agree that it is the contents of the will that determine the testatrix ’ s intention at the time of making it, so that the will has to be interpreted in accordance with that intention, which is to be inferred from the words used in the will ( Digest 50, 16, 219). Since 1941 it has been apparent from the case-law of the Andorran courts (judgment of the Judge of Appeals dated 3 February 1941) that ‘ on both a partially intestate and a testate succession it is principally the testator ’ s intention that must be taken into account, as can be inferred from many provisions of Roman and canon law ... ’",
"V. It is apparent from the foregoing that, although the law in force when the child was actually adopted allowed adopted children to inherit from their adoptive parents on an intestate succession (code 8, 48, 10), those rights cannot extend to a testate succession, where the main factor is the testator ’ s intention. Accordingly, any doubt as to the scope of the expression ‘ offspring of a lawful and canonical marriage ’ falls away when the testatrix ’ s intention is analysed in the light of the social, family and legal conditions in which she lived. In the present case, nothing militates in favour of including the life tenant ’ s adopted children, given the minimal impact of adoption on Andorran family and inheritance law, the adopted child ’ s status as the adoptive parents ’ child (son) but not as a member of the parents ’ family, the purpose traditionally ascribed to family settlements under Catalan law, and Catalan and Andorran legal tradition.”",
"D. Application to the High Court of Justice of Andorra to have the proceedings set aside on grounds of nullity",
"19. The applicants lodged an application with the High Court of Justice to have the proceedings set aside. They submitted that the latter had breached the principle of equality before the law enshrined in Article 6 of the Andorran Constitution and that they had breached Article 10 (right to judicial protection and to a fair trial) of the Andorran Constitution. In a decision of 28 June 2000, the High Court of Justice dismissed their application as ill-founded.",
"E. Appeal ( recurso de empara ) before the Constitutional Court",
"20. The applicants lodged an empara appeal with the Constitutional Court against the decisions of the High Court of Justice. They alleged a violation of Article 13 § 3 (principle of children ’ s equality before the law regardless of filiation) and Article 10 (right to judicial protection and a fair trial) of the Andorran Constitution. In a decision of 13 October 2000, the Constitutional Court declared their appeal inadmissible for the following reasons:",
"“... It seems clear that the judgment of the High Court of Justice is limited to clarifying and determining, that is, interpreting, a specific point concerning the testatrix ’ s intention, as expressed in her will in the form of a family settlement in favour of a child or grandson of a lawful and canonical marriage.",
"The High Court of Justice does not at any point suggest that there is general discrimination against, or inequality between, children according to whether they are biological or adopted. Such an assertion would evidently amount to a flagrant breach of Article 13 § 3 of the Constitution and would also be contrary to the prevailing legal opinion according to which legal systems must always be interpreted, which is that all children are equal, irrespective of their origin. However, as submitted in substance by State Counsel, ‘ discrimination against adopted children as compared to biological children does not in the instant case derive from an act of the public authorities, that is, from the judgment of the Civil Division of the High Court of Justice, but from the intention of the testatrix or settlor regarding who should inherit under her will ’ in accordance with the principle of freedom to make testamentary dispositions, which is a concrete manifestation of the general principle of civil liberty.",
"In its judgment, the High Court of Justice confined itself to interpreting a testamentary disposition. It did so from the legal standpoint it considered adequate and in accordance with its unfettered discretion, seeing that the interpretation of legal instruments is a question of fact which, as such, falls under the jurisdiction of the ordinary courts.",
"...”",
"21. The applicants lodged an appeal ( recurso de súplica ) with the Constitutional Court, which dismissed it on 17 November 2000.",
"II. RELEVANT DOMESTIC LAW",
"22. Articles 6, 13 and 14 of the Andorran Constitution of 14 March 1993 provide:",
"Article 6",
"“1. Everyone is equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition.",
"2. The public authorities shall create the conditions necessary to give full effect to the principles of equality and freedom.”",
"Article 13",
"“1. The civil status of persons and forms of marriage shall be regulated by law. Canonical marriages are recognised as having civil effects.",
"...",
"3. Both spouses have the same rights and duties. All children are equal before the law, regardless of their filiation.”",
"Article 14",
"“Everyone has the right to respect for their privacy, honour and image. Everyone is entitled to legal protection from unlawful interference with their private and family life.”",
"23. Section 24 of the Special Law ( qualificada ) of 21 March 1996 on the adoption and protection of minors in distress provides:",
"“... Adopted children have the same rights and obligations within the adoptive family as legitimate children.”",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"24. The Government raised the objection that Article 8 of the Convention was inapplicable to the facts of the case because there had been no “family life” within the meaning of that provision between the applicants and Carolina Pujol Oller. In that connection, the Government referred to the lack of a genuine relationship between the grandmother, Carolina Pujol Oller, who had died in 1949, and the first applicant, who was adopted in 1969. In the Government ’ s submission, the Court had always adopted a pragmatic approach to the concept of “family life” in order to protect de facto rather than de iure family life. In that sense, the existence of a formal family tie was insufficient to attract the protection of Article 8.",
"25. For their part, the applicants disputed the Government ’ s submission, arguing that, if upheld, it would, for example, exclude posthumous children from the scope of Article 8. Moreover, the Government ’ s argument also concerned Carolina and Immaculada Serra, who had brought the proceedings in the Andorran courts to have the codicil set aside and had not known their great-grandmother either.",
"26. The Court points out that in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31, pp. 23-24, §§ 51-52), it accepted that the right of succession between children and parents, and between grandchildren and grandparents, was so closely related to family life that it came within the sphere of Article 8. It has thus considered that matters of intestate succession – and voluntary dispositions – between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children ’ s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate ( réserve héréditaire ). The fact that Carolina Pujol Oller had died before the first applicant was adopted is no reason for the Court to adopt a different approach in the present case (see, mutatis mutandis, Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000- X).",
"Article 8 of the Convention is therefore applicable.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"27. The applicants complained that, in determining inheritance rights, the High Court of Justice and the Constitutional Court had breached the applicants ’ right to respect for their private and family life by unjustifiably discriminating against the first applicant on the ground of his filiation. They submitted that this had resulted in a violation of Article 14 of the Convention taken in conjunction with Article 8.",
"28. Article 8 of the Convention provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"29. Article 14 provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. The parties ’ submissions",
"1. The applicants",
"30. The applicants stressed at the outset that the Court was faced with a problem that it had never had to deal with before. The previous cases it had examined (see Marckx, cited above; Inze v. Austria, judgment of 28 October 1987, Series A. no. 126; and Mazurek v. France, no. 34406/97, ECHR 2000-II) had concerned the statutory provisions governing instances of intestate succession that had given rise to an unlawful interference by the State with the applicants ’ family life and/or discrimination in family relations on grounds of birth.",
"31. The present case related to the private sphere since it concerned the freedom to arrange one ’ s affairs in the form of a will made by Carolina Pujol Oller in 1939. The testatrix had died in 1949. The first applicant was adopted in 1969 and it was not until 1996, after the death of Carolina ’ s son and life tenant under her will, that the codicil he had drawn up in 1995 was opened. The applicants were in no doubt that the case fell to be examined under the provisions of private law, which had to be read in the light of Andorran law as in force in 1996 and the Convention. Those rules had evidently not been applied by the High Court of Justice.",
"32. The applicants pointed out that customary law ( ius commune) was a supplementary source of civil law under the Andorran law. The ius commune in force in Andorra incorporated Andorran customary law based on Roman law as revised in the light of canon law. That was the applicable legal framework in 1939, when the will was made. Adoption had already been a feature of canon law when it was first drafted over a thousand years ago. The Catholic Church attributed to adopted children the status laid down in canon 1094 of the Benedict XV Code, which was the relevant legislation in force when the will had been drafted in 1939. That status had been confirmed in 1983 by canon 110 of the modern Code of Canon Law, which enshrined the principle that adopted children and legitimate children were equal. There was abundant case-law authority to support the submission that canon law was a supplementary source of law in the Principality of Andorra. Moreover, under Roman law adopted children had the same inheritance and family rights as legitimate and illegitimate children. Adoption had therefore been envisaged both in canon law and in Roman law. It was therefore undeniably a known legal institution that had been used by Andorrans in 1939.",
"33. With regard to the rules on interpreting wills, the applicants observed that, in accordance with the relevant Roman tradition, where a testamentary disposition was clear and unambiguous there was no need to depart from it on the pretext of ascertaining its meaning.",
"34. Accordingly, if the testatrix had really intended to exclude adopted children from the family settlement, she would have inserted a specific clause to that effect, as was habitually done by Andorran and Catalan notaries. In that connection, the applicants referred to the many forms, notarial deeds and court decisions by which adopted sons were in practice always prevented from inheriting an estate by an express exclusion clause which required the child to be legitimate and biological. This was phrased in the following ways: “ son of a lawful, canonical and carnal marriage ”, or “ legitimate and biological son of a canonical marriage ” or “ son procreated by lawful and carnal marriage ”. In the present case, however, Carolina Pujol Oller had made no mention in her will of any tacit or express exclusion of adopted sons. The sole purpose of the clause had been to exclude illegitimate sons.",
"35. The High Court of Justice of Andorra had therefore failed to apply the appropriate law in the present case. In the applicants ’ submission, the court should have interpreted the will in accordance with the legislation in force in 1996, particularly the Andorran Constitution of 1993 and the adoption law of March 1996. That total failure to apply the appropriate law had resulted in an interference with their rights by the Andorran authorities, which were the ultimate guarantors of their right to enjoy their family life without any unjustified discrimination. In their view, the testatrix had clearly not made any distinction in her will regarding adopted children. Accordingly, it was neither for individuals nor the courts to make such a distinction, which was moreover contrary to the Andorran Constitution and the European Convention. The judgment of the High Court of Justice therefore amounted to an unlawful interference with their private and family life, which was clearly discriminatory as regards the first applicant. That interference and discrimination were expressly prohibited by the Andorran Constitution of 1993 and the Special Law on adoption and protection of minors in distress enacted in March 1996.",
"36. In conclusion, the applicants submitted that there had been a violation of Articles 8 and 14 of the Convention.",
"2. The Government",
"37. The Government stressed at the outset that Andorran law did not in any way discriminate between adopted children and legitimate children. In Marckx, the Court had found a violation of the Convention, but that had been based on a statutory discrimination. It was the exact opposite situation here, since Andorran law recognised that grandchildren, be they legitimate, illegitimate or adopted, had the same statutory inheritance rights with regard to their parents (reserved portion of the estate on a testate succession and hereditary rights on an intestate succession) and with regard to their grandparents. In the Government ’ s submission, the present case differed substantially from Marckx because the first applicant had been left more than EUR 300,000 by his father and had had the same inheritance rights as his sister or any other legitimate brother or sister if there had been one.",
"38. The property dispute in the present case arose as a result of the free will of a testatrix who, under domestic law, had been entirely free to dispose of her property as she wished, apart from the reserved portion. Subject to that restriction, the freedom to dispose of the remaining assets was protected under Andorran law. Once the portion reserved to the heirs was protected, testators were free to dispose of the rest of the property as they wished. That was precisely what had happened here. The Government submitted that there had been no interference with the applicants ’ family life. Moreover, even supposing that the decisions of the Andorran courts could be deemed to have interfered with the rights to which the applicants referred, the interference had been justified. Firstly, the decision of the High Court could be deemed to have pursued the legitimate aim of protecting the right of the true heirs under the settlement and, accordingly, was aimed at protecting the rights and freedoms of others. Secondly, the decision complained of fell within the States ’ margin of appreciation in areas such as the one in issue here. In sum, a fair balance had been struck between the competing rights in question.",
"39. In the Government ’ s submission, the High Court of Justice ’ s interpretation was in keeping with the testatrix ’ s intention in 1939 and the law in force in Andorra at the time of her death in 1949. According to the legal tradition applicable at the time, adopted sons did not have the same rights as legitimate sons under family settlements because the purpose of that institution was to keep the family estate in the family. The postglossators had already observed that extending family settlements to adopted sons meant that the fulfilment of the condition was in the hands of the life tenant, with the clear risk of fraud or abuse of right that that entailed.",
"40. The Government reiterated that the interpretation of domestic law was a matter solely for the domestic courts, which were the best placed to interpret and apply domestic law. The Court ’ s scrutiny was limited to ensuring that that application and interpretation were compatible with the requirements of the Convention. In the present case, the High Court of Justice had found, after examining the domestic law and the parties ’ allegations in detail in the course of the due exercise of its functions in interpreting the intention of the testatrix, that she had not included a provision expressly excluding adopted children because, to her mind, they had clearly been excluded by the term “son of a legitimate and canonical marriage”. In sum, the High Court of Justice ’ s interpretation had not breached the Convention, because the judgment contained no humiliating expression or declaration or one that could be regarded as infringing the human dignity of adopted children. The judgment was limited to finding that the testatrix had not intended adopted children to inherit her estate. Moreover, the will did not contain any clause that was illegal or contrary to public policy. The Government observed that any entitlement under a will was, by definition, discriminatory in that it generated differences between heirs.",
"41. In conclusion, the Government submitted that there had been no violation of the provisions in question.",
"B. The Court ’ s assessment",
"42. Since the issue of alleged discriminatory treatment of the first applicant is at the heart of the applicants ’ complaint, the Court considers it appropriate to examine the complaint first under Article 14 of the Convention taken in conjunction with Article 8.",
"43. The Court has had occasion in previous cases to examine allegations of differences of treatment for succession purposes both under Article 14 taken in conjunction with Article 8 (see Marckx, cited above, p. 24, § 54, and Vermeire v. Belgium, judgment of 29 November 1991, Series A no. 214 ‑ C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see Inze, cited above, p. 18, § 40, and Mazurek, cited above, § 43 ). The Court reaffirms that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see, for example, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, p. 25, § 55, and Camp and Bourimi, cited above, § 28). That being said, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for private or family life (see Marckx, cited above, pp. 14-15, § 31).",
"The factor common to those cases was that the difference of treatment of which complaint was made resulted directly from the domestic legislation, which distinguished between legitimate and illegitimate children (see Marckx, Vermeire and Inze, cited above) or between children born of an adulterous relationship and other children, whether or not born in wedlock (see Mazurek, cited above). The question raised in each of these cases was whether such difference of treatment within the legal system of the respondent States violated the rights of the applicants under Article 14 taken in conjunction with Article 8 of the Convention or Article 1 of Protocol No. 1.",
"44. The essential difference between the present case and the above-cited ones is that in the instant case the Court is not required to determine whether there is an incompatibility between the Convention and the Andorran statutory provisions on adopted children ’ s inheritance rights. The Court notes in that connection, moreover, that the parties agreed that both the Andorran Constitution of 1993 and the special law on adoption of 21 March 1996 were compatible with the principle under Article 14 of the Convention prohibiting discrimination on grounds of birth. In the present case, the question in issue concerns the High Court of Justice of Andorra ’ s interpretation, upheld by the Constitutional Court, of a testamentary disposition drafted in 1939 and executed in 1995. The Court has to determine whether that interpretation breached Article 14 of the Convention taken in conjunction with Article 8.",
"45. Clearly, the Andorran authorities cannot be held liable for any interference with the applicants ’ private and family life any more than the Andorran State can be held liable for a breach of any positive obligations to ensure effective respect for family life. The applicants confined themselves to challenging a judicial decision that had declared a private deed disposing of an estate to be contrary to the testatrix ’ s wishes. The only outstanding question is that of the alleged incompatibility with the Convention of the Andorran courts ’ interpretation of domestic law.",
"46. On many occasions, and in very different spheres, the Court has declared that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see, for example, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 61, ECHR 2003-V; and Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003 ‑ X). That principle, which by definition applies to domestic legislation, is all the more applicable when interpreting an eminently private instrument such as a clause in a person ’ s will. In a situation such as the one here, the domestic courts are evidently better placed than an international court to evaluate, in the light of local legal traditions, the particular context of the legal dispute submitted to them and the various competing rights and interests (see, for example, De Diego Nafría v. Spain, no. 46833/99, § 39, 14 March 2002). When ruling on disputes of this type, the national authorities and, in particular, the courts of first instance and appeal have a wide margin of appreciation.",
"Accordingly, an issue of interference with private and family life could only arise under the Convention if the national courts ’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.",
"47. The present case dates back to 1939 when Carolina Pujol Oller, Francesc Pla Guash ’ s widow, made a will before a notary, the seventh clause of which settled her estate on her son, Francesc-Xavier (the first applicant ’ s father) as life tenant with the remainder to a son or grandson of a lawful and canonical marriage. Should those conditions not be met, the testatrix stipulated that her estate had to pass to the children and grandchildren of the remaindermen under the settlement. In 1949 Carolina Pujol Oller died.",
"48. The beneficiary under the will, Francesc-Xavier Pla Pujol, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed sworn before a notary in La Coruña ( Spain ) on 11 November 1969, the couple adopted a child, Antoni (the first applicant), in accordance with the procedure for full adoption in force under Catalan law. They subsequently adopted a second child.",
"49. By a codicil dated 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother ’ s will to his wife (the second applicant) for life, with the remainder to his adopted son, Antoni. Francesc-Xavier Pla Pujol died on 12 November 1996. The codicil was opened on 27 November 1996. The assets in question consisted of real estate.",
"50. Submitting that, as an adopted child, the first applicant could not inherit under the will made by the testatrix in 1939, two great-grandchildren of hers brought civil proceedings in the Tribunal des Battles, which dismissed their action. The High Court of Justice set the judgment aside on appeal and granted the appellants ’ claim. An appeal ( empara ) against that judgment was dismissed by the Constitutional Court.",
"51. With regard to the interpretation of the testamentary disposition, which is at the heart of the dispute, the Tribunal des Batlles, which dealt with the case at first instance, analysed the clause grammatically in the light of the historical background and applying Roman law as amended by canon law, which is a source of the general law applicable in Andorra. It concluded that the action should be dismissed. The court added that no foreign legislation, case-law or legal theory was applicable in the Principality. In its view, neither the wording of the clause nor the intention of the testatrix could prevent adopted children from inheriting under the will.",
"52. On appeal, the High Court of Justice construed the relevant facts and law differently. In the first place, it found that adoption had been practically unheard of in Andorra during the first half of the twentieth century. It concluded from this that it was difficult to reconcile the testatrix ’ s act of creating a family settlement in case the life tenant should die without leaving offspring of a lawful and canonical marriage with an intention to extend the arrangement to adopted children. Similarly, the court observed that the deed of adoption had been drawn up in Spain in accordance with the Spanish procedure for full adoption. Under the Spanish law applicable at the time, particularly Catalan law (to which the deed of adoption referred), on an intestate succession adopted children could inherit only from their adoptive father or mother and not from the rest of the adoptive parents ’ family. When examining the testatrix ’ s intention, the court found that both at the time when the will was made in 1939 and on the testatrix ’ s death in 1949 the adopted children of her legitimate son or son of the marriage were outside the family circle from a legal and sociological point of view. The court found that, in order for adopted children to be able to inherit under a Catalan family settlement, there would have to be no doubt as to the testatrix ’ s intention to depart from the usual meaning ascribed to that arrangement. The terms used in the will did not support that conclusion.",
"53. The Court notes that the Andorran courts gave two different interpretations: the first, given by the Tribunal des Batlles, was favourable to the applicants and the second, given by the High Court of Justice, went against them. Both are based on factual and legal elements that were duly evaluated in the light of the particular circumstances of the case.",
"54. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33, and Camp and Bourimi, cited above, § 34).",
"55. The Court has found above that the facts of the case fell within Article 8 of the Convention. Accordingly, Article 14 can apply in conjunction with Article 8.",
"56. The Court does not consider it appropriate or even necessary to analyse the legal theory behind the principles on which the domestic courts, and in particular the High Court of Justice of Andorra, based their decision to apply one legal system rather than another, be it Roman law, canon law, Catalan law or Spanish law. That is a sphere which, by definition, falls within the competence of the domestic courts.",
"57. The Court considers that, contrary to the Government ’ s affirmations, no question relating to the testatrix ’ s free will is in issue in the present case. Only the interpretation of the testamentary disposition falls to be considered. The Court ’ s task is therefore confined to determining whether, in the circumstances of the case, the first applicant was a victim of discrimination contrary to Article 14 of the Convention.",
"58. In the present case, the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant ’ s father is indisputable. The sole remaining question is therefore whether the notion of “ son ” in Carolina Pujol Oller ’ s will extended only, as the High Court of Justice maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so but, as she did not, the only possible and logical conclusion is that this was not her intention.",
"The High Court of Justice ’ s interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it ( quum in verbis nulla ambiguitas est, non debet admitti voluntatis queastio ).",
"59. Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court ’ s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30-31, ECHR 1999 ‑ I).",
"60. In the present case, the High Court of Justice ’ s interpretation of the testamentary disposition in question had the effect of depriving the first applicant of his right to inherit under his grandmother ’ s estate and benefiting his cousin ’ s daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant losing her right to the life tenancy of the estate assets left her by her late husband.",
"Since the testamentary disposition, as worded by Carolina Pujol Oller, made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child ’ s inheritance rights.",
"61. The Court reiterates that a distinction is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” (see, inter alia, Fretté v. France, no. 36515/97, § 34, ECHR 2002-I). In the present case, the Court does not discern any legitimate aim pursued by the decision in question or any objective and reasonable justification on which the distinction made by the domestic court might be based. In the Court ’ s view, where a child is adopted (under the full adoption procedure, moreover), the child is in the same legal position as a biological child of his or her parents in all respects: relations and consequences connected with his or her family life and the resulting property rights. The Court has stated on many occasions that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention.",
"Furthermore, there is nothing to suggest that reasons of public policy required the degree of protection afforded by the Andorran appellate court to the appellants to prevail over that afforded to the first applicant.",
"62. The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for States, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights (see Mazurek, cited above, § 30). Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix ’ s death, namely in 1939 and 1949, particularly where a period of fifty-seven years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills: any interpretation, if interpretation there must be, should endeavour to ascertain the testator ’ s intention and render the will effective, while bearing in mind that “the testator cannot be presumed to have meant what he did not say” and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court ’ s case-law.",
"63. Having regard to the foregoing, the Court considers that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.",
"64. In the light of the conclusion set out in the previous paragraph, the Court is of the opinion that there is no need to examine the application separately under Article 8 of the Convention taken alone.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"65. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Pecuniary and non-pecuniary damage",
"66. The applicants submitted, firstly, that just satisfaction should take the form of setting aside the High Court of Justice ’ s judgment, upholding the judgment of the Tribunal des Batlles and reinstating the first applicant as life tenant of the estate of his grandmother, Carolina Pujol Oller. Should that not be possible, they submitted that their pecuniary loss corresponded to the value of the assets in Carolina Pujol Oller ’ s estate, which consisted of the following real property in the Principality of Andorra: the Hort de la Canaleta, the Hort d ’ ensucaranes, the Rec Vell de l ’ Obach, the Hôtel Pla and the Boïgues del Pla. According to an expert valuation dated 10 May 2001, the property was estimated to be worth 127,625,000 pesetas (767,042 euros (EUR)). In their last pleadings submitted at the hearing before the Court, the applicants submitted that, according to a recent expert valuation, the pecuniary damage amounted to EUR 1,195,913.",
"67. In respect of non-pecuniary damage, having regard to the health problems they had suffered – particularly the second applicant who was now 80 years old – and in view of the various proceedings brought before the Andorran courts, the applicants assessed the non-pecuniary damage sustained by the first applicant at EUR 120,000 and that sustained by the second applicant, who was his mother and supervisor, at EUR 30,000.",
"68. The Government, for their part, maintained that these claims were manifestly excessive. They submitted that since, under Andorran law, the first applicant ’ s father could have kept for himself half the assets inherited from his mother, the Government were liable for only half the value of the estate in question, this being the assets that had to be transferred to the first applicant. They did not accept the applicants ’ valuation of the assets. According to their expert ’ s valuation, the Hôtel Pla was worth EUR 661,885. The aggregate value of the other property (land) was EUR 89,281. In all, the Pla family ’ s fortune had to be estimated at a maximum of EUR 751,166, to be reduced by one half: one quarter being the reserved portion of the estate and a further quarter being the amount of which the life tenant (the first applicant ’ s father) could freely dispose. With regard to non-pecuniary damage, the Government submitted that the finding of a violation would constitute in itself adequate just satisfaction.",
"B. Costs and expenses",
"69. In respect of the costs and expenses relating to their legal representation, the applicants claimed the reimbursement of EUR 76,460. They provided the following supporting documents:",
"(i) EUR 30,094 for fees incurred in the proceedings at first instance (supporting invoice dated 26 October 1999 );",
"(ii) EUR 14,320 for fees incurred in the proceedings before the High Court of Justice (supporting invoice dated 10 May 2000 );",
"(iii) EUR 7,611 for fees incurred before the Constitutional Court (supporting invoice dated 30 November 2000 );",
"(iv) EUR 967 for fees paid to the solicitor in the domestic proceedings (supporting invoices dated 2 November 1999 and 10 November 2000 );",
"(v) EUR 9,916 for fees incurred in opposing enforcement of the High Court of Justice ’ s judgment of 18 May 2000 (supporting invoice);",
"(vi) EUR 1,171 for fees incurred in having Carolina Pujol Oller ’ s estate valued (supporting invoice dated 10 May 2001 );",
"(vii) EUR 12,378 for fees incurred in the proceedings before the Court (supporting invoices itemising the costs of defending the applicants before the Court).",
"70. The Government considered that the amounts claimed by the applicants under this head were exorbitant. In their submission, the costs incurred in the domestic courts should not be taken into consideration.",
"71. Having regard to the foregoing, the Government requested the Court not to rule at this stage on the question of the application of Article 41 of the Convention, which, in their opinion, was not ready for decision.",
"72. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 75 § 1). The Court allows the parties six months in which to reach such agreement."
] |
28 | Brauer v. Germany | 28 May 2009 | The applicant was unable to inherit from her father who had recognised her under a law affecting children born outside marriage before 1 July 1949. The equal inheritance rights available under the law of the former German Democratic Republic (where she had lived for much of her life) did not apply because her father had lived in the Federal Republic of Germany when Germany was unified. The applicant complained that, following her father’s death, her exclusion from any entitlement to his estate had amounted to discriminatory treatment and had been wholly disproportionate. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It could not find any ground on which such discrimination based on birth outside marriage could be justified today, particularly as the applicant’s exclusion from any statutory entitlement to inherit penalised her to an even greater extent than the applicants in other similar cases brought before it. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1948 in Oberschwöditz, in the former German Democratic Republic (GDR), and lives in Lennestadt.",
"A. Background to the case",
"6. The applicant is the natural daughter of a Mr Schildgen, who recognised her several months after her birth. She lived in the territory of the former GDR until 1989, while her father lived in the FRG. The father and daughter corresponded regularly during this period, and after the reunification of Germany she visited him. He died between 30 June and 3 July 1998 (the precise date has not been specified).",
"The applicant subsequently made several attempts to assert her inheritance rights in the domestic courts.",
"B. Proceedings in the domestic courts",
"7. On 10 July 1998 the applicant applied for a certificate of inheritance attesting that she was entitled to at least a 50% share of Mr Schildgen ’ s estate.",
"8. In a decision of 8 October 1998 the Neunkirchen District Court ( Amtsgericht – Nachlassgericht ) refused the applicant ’ s application, holding that, notwithstanding the reform of the law of succession following the introduction of the Inheritance Rights Equalisation Act of 16 December 1997 ( Erbgleichstellungsgesetz ), the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act ( Gesetz über die rechtliche Stellung nichtehelicher Kinder – Nichtehelichengesetz ) of 19 August 1969 remained in force. The provision in question stated that children born outside marriage before 1 July 1949 were not deemed to be statutory heirs (see “Relevant domestic law and practice”, paragraph 18 below ). The District Court also referred to a decision given by the Federal Constitutional Court ( Bundesverfassungsgericht ) on 8 December 1976 (see also “Relevant domestic law and practice”, paragraph 21 below), in which the provision had been found to be in conformity with the Basic Law ( Grundgsetz ).",
"9. On 4 November 1998 the applicant appealed to the Saarbrücken Regional Court ( Landgericht ), arguing in particular that the law of the former GDR, which provided for equal treatment between children born within and outside marriage, should apply in her case. In any event, section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act contravened Article 3 (principle of equality before the law) of the Basic Law as there was no objective justification for the difference in treatment.",
"10. In a decision of 7 January 1999 the Saarbrücken Regional Court upheld the District Court ’ s decision on the same grounds. It acknowledged, however, that the exclusion of children born outside marriage before 1 July 1949 from the statutory right of inheritance placed them at a very clear disadvantage in relation to those born after that date and also to those covered by the law of the former GDR.",
"11. In a decision of 3 September 1999 the Saarland Court of Appeal ( Oberlandesgericht ) quashed the Regional Court ’ s decision and remitted the case to it to establish whether the applicant was indeed Mr Schildgen ’ s natural daughter and whether there were any other heirs. If the applicant were to be entitled to at least a 50% share of the estate, the Regional Court should examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was in conformity with the Basic Law.",
"The Court of Appeal confirmed at the outset that by virtue of the rules of private international law and, in particular, the settled case-law concerning section 25(1) of the Introductory Act to the FRG Civil Code ( Einführungsgesetz in das Bürgerliche Gesetzbuch ), FRG law alone was applicable in the applicant ’ s case, since the deceased ( Erblasser ) had not been resident in the territory of the former GDR on 3 October 1990, when German reunification had taken effect.",
"However, it considered that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was not in conformity with the Basic Law, for the following reasons. Firstly, the legal and social status of children born outside marriage had evolved considerably since the Federal Constitutional Court ’ s decision of 8 December 1976 and had in practice become equivalent to that of children born within marriage. The Federal Constitutional Court, moreover, had itself adopted a more restrictive approach to Article 6 § 5 of the Basic Law (principle of equal treatment between children born outside and within marriage ) in its decision of 18 November 1986 (see “Relevant domestic law and practice”, paragraph 23 below ). Furthermore, a new situation had arisen as a result of the accession of the former GDR to the FRG, since by virtue of section 235(1)(2) of the Introductory Act to the Civil Code, taken together with section 25(1), children born outside marriage before 1 July 1949 had the same rights as children born within marriage if the father had been resident in the territory of the former GDR on 3 October 1990 (see “Relevant domestic law and practice”, paragraphs 19-20 below ). However, there were no objective grounds for a difference of treatment between children born outside marriage before or after 1 July 1949, or between children born outside marriage before 1 July 1949 according to whether or not the father had been resident in the territory of the former GDR on 3 October 1990. The Court of Appeal concluded that the arguments put forward by the Federal Constitutional Court in its decision of 8 December 1976 were no longer valid, particularly with regard to the practical and procedural difficulties of establishing the paternity of children born outside marriage before 1 July 1949, and the need to protect the “legitimate expectations ” of the deceased ( Vertrauensschutz des Erblassers ) and his family.",
"12. In a decision of 25 January 2001 the Saarbrücken Regional Court confirmed its previous decision on the basis of the same arguments. Even if it was established to a 99% degree of certainty that the applicant was indeed Mr Schildgen ’ s daughter and there were no other known heirs, she was excluded from any statutory entitlement to the estate by the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. In the Regional Court ’ s view, that provision did not contravene the Basic Law despite German reunification, as the Federal Constitutional Court had held in its decision of 3 July 1996 (see “Relevant domestic law and practice” below, paragraph 22).",
"13. In a decision of 7 August 2001 the Saarland Court of Appeal again quashed the Regional Court ’ s decision and remitted the case to it to establish whether there were any other heirs of the second or third order and to re-examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was compatible with the Basic Law where the State was the sole statutory heir.",
"The Court of Appeal held that it was not acceptable to set a cut-off date if the deceased had no other heirs and, as a result, the State became the sole statutory heir. It referred in that connection to the right of inheritance ( Erbrechtsgarantie ) guaranteed in Article 14 § 1 of the Basic Law, which in its view also protected the rights of a child born outside marriage where there were no private statutory heirs other than the State.",
"14. In a decision of 10 July 2003 the Saarbrücken Regional Court confirmed its previous decisions on the basis of the same arguments. It added that it was not required in the case before it to examine whether the provision in issue was in conformity with the Basic Law, since it had been established that the deceased had heirs of the third order and that the State was therefore not the statutory heir.",
"15. In a decision of 29 September 2003 the Saarland Court of Appeal dismissed an appeal by the applicant, on the ground that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. It further refused to refer the case back to the Regional Court for a fresh examination, seeing that the State was not the statutory heir in the case before it.",
"16. In a decision of 20 November 2003 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the appeal.",
"It observed, in particular, that the aspect of protecting the “legitimate expectation” of the deceased had gained in importance since, following its decision of 8 December 1976, it had considered the inheritance rights of children born outside marriage before 1 July 1949 to have been clarified in relation to the Basic Law. It added that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had not lost its objective justification simply because children born outside marriage in an entirely different social context had the same rights as children born within marriage. The difference in treatment in comparison with children born outside marriage who were covered by the law of the former GDR was justified by the inherent purpose of section 235(1)(2), that of avoiding any disadvantage resulting from the former GDR ’ s accession to the FRG."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Law of succession in the FRG",
"17. The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that on the father ’ s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate ( Erbersatzanspruch ). The sole exception concerned children born outside marriage before 1 July 1949 : [1] the first sentence of section 12(10)(2) of the Act excluded them from any statutory entitlement to the estate and from the right to financial compensation.",
"18. In 1997, in the general context of the reform of family law with regard to custody and parental rights, the legislature also made changes to the law of succession for children born outside marriage through the Inheritance Rights Equalisation Act of 16 December 1997, which came into force on 1 April 1998. Children born outside marriage are in principle now treated as equal to those born within marriage as regards all aspects of the law of succession.",
"However, the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 remains in force as a transitional provision.",
"B. Rules of succession applicable following German reunification",
"19. By section 235(1)(2), taken together with section 25(1), of the Introductory Act to the FRG Civil Code, children born outside marriage in the territory of the former GDR before 3 October 1990 (the date on which German reunification took effect) have the same inheritance rights as children born within marriage in accordance with the FRG Civil Code if the father died after 3 October 1990 and had been resident in the territory of the former GDR on that date. Section 235(1)(2) seeks to protect the rights of children born outside marriage prior to reunification who would have been covered by the law of the former GDR, which afforded equal inheritance rights to children born outside and within marriage.",
"20. It follows that the inheritance rights of children born outside marriage before 1 July 1949 are dependent on the deceased ’ s place of residence on 3 October 1990: if the deceased was resident in the territory of the former GDR, the child born outside marriage has the same inheritance rights as a child born within marriage; if, however, the deceased was resident in the territory of the FRG, the child born outside marriage has no statutory entitlement to the estate.",
"C. Case-law of the Federal Constitutional Court",
"1. Concerning the conformity with the Basic Law of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969",
"21. In a leading decision of 8 December 1976 the Federal Constitutional Court held that the provision in issue was compatible with the Basic Law.",
"It stated, in particular, that fixing 1 July 1949 as the cut-off date was objectively justified in view of the practical and procedural difficulties of establishing the paternity of children born outside marriage before that date, since the scientific methods used at the time were less developed than present-day methods. Many paternity suits were therefore unlikely to succeed owing to insufficient evidence. Moreover, the new legislation made it possible to contest declarations of paternity drawn up before 1 July 1949. Accordingly, having regard to those factors, the legislature had not overstepped its margin of discretion in this regard. Furthermore, it had to a certain extent been able to take account of existing uncertainties regarding the law of succession and of the opinion of those opposed to reforming the legal status of children born outside marriage. Lastly, the “legitimate expectation ” of the deceased and their families that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would be maintained also deserved a certain degree of protection.",
"22. In a decision of 3 July 1996 the Federal Constitutional Court confirmed its earlier position notwithstanding the reunification of Germany. It held that the legislature had taken into account the social conditions prevailing when the Children Born outside Marriage (Legal Status) Act had been enacted. This objective justification was still present even though children born outside marriage in an entirely different social context had the same rights as children born within marriage.",
"2. Concerning the conformity with the Basic Law of section 1934c of the Civil Code",
"23. In a decision of 19 November 1986 the Federal Constitutional Court held that section 1934c of the Civil Code, which provided that a child born outside marriage was entitled to a share in the estate only if at the time of the father ’ s death his paternity of the child had been acknowledged or determined by a court ruling, or judicial proceedings to that effect were pending, was not in conformity with Article 6 § 5 of the Basic Law.",
"D. Subsequent developments",
"24. During the passage of the Children ’ s Rights Improvement Act ( Kinderrechteverbesserungsgesetz ) of 9 April 2002, the legislature again upheld the exception in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. It took the view that that provision was compatible with the Basic Law in the light of the Federal Constitutional Court ’ s decisions of 8 December 1976 and 3 July 1996 (see paragraphs 21-22 above), which had created an even stronger “ legitimate expectation ” ( Vertrauenstatbestand ) for the deceased and his family.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"25. The applicant submitted that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, read in conjunction with section 235(1)(2) of the Introductory Act to the Civil Code, and the decisions of the domestic courts had infringed her right to respect for family life as guaranteed by Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"She complained in particular that she was excluded from any statutory entitlement to inherit as a child born outside marriage before 1 July 1949 and also relied on Article 14 of the Convention, which provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"26. The Government contested that argument.",
"27. Since the application mainly concerns the alleged discriminatory treatment of the applicant, the Court considers it appropriate to examine it first under Article 14 of the Convention taken in conjunction with Article 8.",
"A. Admissibility",
"Applicability of Article 8 of the Convention",
"28. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 54, ECHR 2004-VIII).",
"29. The Court must therefore determine whether Article 8 of the Convention is applicable in the instant case.",
"30. In this connection, the existence or non-existence of “family life” within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, L. v. the Netherlands, no. 45582/99, § 36 in fine, ECHR 2004-IV). Furthermore, a right of succession between children and parents is so closely related to family life that it comes within the sphere of Article 8 (see Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31; Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000-X; and Merger and Cros v. France, no. 68864/01, § 48, 22 December 2004).",
"31. In the instant case the Court observes that the applicant ’ s father recognised her after her birth and had regular contact with her despite the difficult circumstances resulting from the existence of two separate German States; after German reunification, their contact became closer.",
"32. Accordingly, the Court is in no doubt that the facts of the case fall within the ambit of Article 8 of the Convention. Article 14 can therefore apply in conjunction with Article 8.",
"33. The Court observes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"B. Merits",
"34. The Court notes at the outset that the Government did not dispute that the application of the relevant provisions of domestic law gave rise to a difference in treatment for a child born outside marriage before the cut-off date of 1 July 1949, as compared with a child born within marriage, a child born outside marriage after that date and also, since German reunification, a child born outside marriage before that date who was covered by the law of the former GDR because the father had been resident in GDR territory at the time the reunification had taken effect.",
"35. The Court reiterates in this connection that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Mazurek v. France, no. 34406/97, § 46, ECHR 2000-II).",
"36. It must therefore be determined whether the alleged difference in treatment was justified.",
"37. The applicant submitted that the difference in treatment as compared with children born outside marriage after the cut-off date of 1 July 1949 or those covered by the law of the former GDR was not based on any objective justification. As she had lived in the territory of the former GDR until 1989, she should have been afforded the same inheritance rights as a child born within marriage, irrespective of where her father had been resident when German reunification had taken effect. Furthermore, her father had not had a spouse or any direct descendants, but only heirs of the third order whom he had not known and whom the Saarbrücken Regional Court had, moreover, had great difficulty in tracing. By contrast, he had been in regular contact with the applicant and had therefore surely been unaware that he should have made special arrangements for her to be able to inherit from him. The applicant submitted in conclusion that her exclusion from any entitlement to the estate had been wholly disproportionate.",
"38. The Government, on the contrary, submitted that the difference in treatment had been based on an objective and reasonable justification. The decisions taken by the legislature and the domestic courts had been appropriate and not discriminatory.",
"They emphasised, firstly, that, as in the majority of Contracting States, the gradual harmonisation of the rights of children born outside marriage with those of children born within marriage had given rise to heated debates on matters of public interest and had raised numerous moral, legal, political and economic questions. Furthermore, following its reunification, Germany had been confronted with a particular situation that warranted allowing it a wide margin of appreciation, as the Court had done in Von Maltzan and Others v. Germany (( dec .) [GC], nos. 7191 6/01, 71917/01 and 10260/02, §§ 110-11, ECHR 2005-V).",
"They added that the intention of the legislature had been to preserve legal certainty and any “legitimate expectation” that the deceased and their families might have had that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would be maintained. This “expectation” had been further strengthened by the Federal Constitutional Court ’ s two decisions of 8 December 1976 and 3 July 1996. The fact that after German reunification the legislature had taken account of the situation of children born in an entirely different social context could not alter that position.",
"Moreover, in view of the advanced age of any such fathers who were still alive, it would no longer be practicable to amend the existing legislation. Such an amendment would, furthermore, have the effect of discriminating against children born outside marriage whose father had died before the new legislation had come into force and against any children concerned who had been unable to prove the identity of their father at the time owing to the lack of sufficient technical means.",
"39. The Court reiterates that a distinction is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, in particular, mutatis mutandis, Inze v. Austria, 28 October 1987, § 41, Series A no. 126, and Mazurek, cited above, § 48).",
"40. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx, cited above, § 41, and Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and children born out of wedlock as regards their civil rights. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is currently in force in respect of twenty-one member States and has not been ratified by Germany. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, Inze, cited above, § 41; Mazurek, cited above, § 49; and Camp and Bourimi, cited above, § 38 ).",
"41. The Court considers that the aim pursued by maintaining the impugned provision, namely the preservation of legal certainty and the protection of the deceased and his family, is arguably a legitimate one.",
"42. It further notes that, in line with other Contracting States, the German legislature has, through the 1969 Children Born outside Marriage (Legal Status) Act and subsequently the 1997 Inheritance Rights Equalisation Act, gradually created an equal status between children born outside and within marriage as regards the law of succession. Following German reunification, in order to avoid any disadvantage for children born outside marriage in a different social context, it also granted them the same inheritance rights as children born within marriage, provided that the father had been resident in the territory of the former GDR at the time when the reunification had taken effect. However, it maintained the exception laid down in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which excluded children born outside marriage before 1 July 1949 from any statutory entitlement to inherit. The constitutionality of that provision was also confirmed by the Federal Constitutional Court, first in 1976 and twenty years later in 1996 (see “Relevant domestic law and practice”, paragraphs 21-22 above ). In the instant case the Federal Constitutional Court applied its case-law, although the exchange of arguments between the Saarbrücken Regional Court and the Saarland Court of Appeal shows that the advisability of maintaining the exception has also been the subject of debate at domestic level (see paragraphs 10-15 above).",
"43. In this connection, the Court notes that the legislature ’ s decision to maintain this exception reflected the state of German society at the time and the opposition of part of the public to any reform of the legal status of children born outside marriage. Furthermore, there were genuine practical and procedural difficulties in establishing the paternity of children. Accordingly, as the Federal Constitutional Court stated in its leading decision of 8 December 1976, the continued application of the provision in question could be said to have been based on objective reasons (see H.R. v. Germany, no. 17750/91, Commission decision of 10 June 1992).",
"However, in the Court ’ s view, the arguments put forward at the time are no longer valid today; like other European societies, German society has evolved considerably and the legal status of children born outside marriage has become equivalent to that of children born within marriage. Furthermore, the practical and procedural difficulties in proving the paternity of children have receded, as the use of DNA testing to establish paternity now constitutes a simple and very reliable method. Lastly, a new situation has been created as a result of German reunification and the equalisation of the legal status of children born outside and within marriage across a large part of German territory.",
"Accordingly, the Court cannot agree with the reasoning adopted by the Federal Constitutional Court in the instant case. The Court considers, in particular, that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention (see paragraph 40 above), the aspect of protecting the “legitimate expectation” of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage. It reiterates in this connection that as early as 1979 it held in its Marckx judgment (cited above, §§ 54-59) that the distinction made for succession purposes between “illegitimate” and “legitimate” children raised an issue under Articles 14 and 8 taken together.",
"44. As to whether the means employed were proportionate to the aim pursued, a further three considerations appear decisive to the Court in the present case. Firstly, the applicant ’ s father had recognised her after her birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German States. He had neither a wife nor any direct descendants, but simply heirs of the third order whom he apparently did not know. The aspect of protecting these distant relatives ’ “legitimate expectations ” cannot therefore come into play. Secondly, the applicant has spent a large portion of her life in the former GDR, where she grew up in a social context in which children born outside and within marriage enjoyed equal status. However, she was unable to derive any benefit from the rules providing for equal inheritance rights between children born outside and within marriage, since her father had not been resident in the territory of the former GDR at the time when German reunification had taken effect. In this connection, it should be noted that following German reunification, the legislature sought to protect the inheritance rights of children born outside marriage whose father had been resident in the territory of the former GDR; since inheritance rights come under the protection of the right of property in German law, the factor taken into account was the deceased ’ s place of residence. Yet while this difference of treatment may have been justified in the light of the social context in the former GDR, it nevertheless had the effect of aggravating the existing inequality in relation to children born outside marriage before 1 July 1949 whose father had been resident in the FRG. Lastly, the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act excluded the applicant from any statutory entitlement to the estate, without affording her any financial compensation.",
"The Court cannot find any ground on which such discrimination based on birth outside marriage can be justified today, particularly as the applicant ’ s exclusion from any statutory entitlement to inherit penalised her to an even greater extent than the applicants in other similar cases brought before it (see, for example, Merger and Cros, cited above, §§ 49-50, and Mazurek, cited above, §§ 52-55).",
"45. Having regard to all the above considerations, the Court concludes that there was not a reasonable relationship of proportionality between the means employed and the aim pursued.",
"There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.",
"46. Having regard to its conclusion in the previous paragraph, the Court is of the opinion that there is no need to examine separately the complaint under Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"47. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. Pecuniary damage",
"48. The applicant claimed the sum of 95,828.59 euros (EUR) in respect of pecuniary damage, corresponding to the total amount she would have inherited as a statutory heir. To that end, she submitted certified copies of statements of her father ’ s various bank accounts, which indicated his assets at the time of his death. The applicant submitted that her father had had no debts; his burial costs had amounted to approximately EUR 1,000 and had been directly debited from his current account.",
"49. The Government referred to the total sum of 53,000 German marks – equivalent to EUR 26,500 – which the notary instructed by the applicant to apply for a certificate of inheritance had indicated in his statement of costs ( Kostenberechnung ) of 13 July 1998; the domestic courts had subsequently taken this sum as a basis for determining the value of the subject matter of the case. In the Government ’ s submission, the precise value of the deceased ’ s assets could not be determined from the additional documents submitted by the applicant, as they did not indicate when any sums owing to the deceased were due to be paid or whether he had any liabilities.",
"2. Non-pecuniary damage",
"50. The applicant also claimed compensation for non-pecuniary damage, which she assessed at EUR 50,000, for having been completely deprived of her inheritance rights throughout the proceedings before the domestic courts.",
"51. The Government left the matter to the Court ’ s discretion.",
"B. Costs and expenses",
"52. The applicant also claimed EUR 2,859.65 for the costs and expenses incurred before the domestic courts and the Court.",
"53. The Government submitted that no causal link had been established between the costs incurred and the alleged violation. Furthermore, in one set of proceedings the applicant ’ s lawyer had specified the amount being sought in legal aid ( EUR 351.41) at a very late stage and his application to that end had therefore been refused by the competent authority.",
"C. Conclusion",
"54. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court allows the parties three months in which to reach such agreement."
] |
29 | Fabris v. France | 7 February 2013 (Grand Chamber) | The applicant was born in 1943 of a liaison between his father and a married woman who was already the mother of two children born of her marriage. At the age of 40, he was judicially declared the latter’s “illegitimate” child. Following his mother’s death in 1994, he sought an abatement of the inter vivos division, claiming a reserved portion of the estate equal to that of the donees, namely, his mother’s legitimate children. In a judgment of September 2004, the tribunal de grande instance declared the action brought by the applicant admissible and upheld his claim on the merits. Following an appeal by the legitimate children, the court of appeal set aside the lower court’s judgment. The applicant unsuccessfully appealed on points of law. Before the Court, the applicant complained that he had been unable to benefit from a law introduced in 2001 granting children “born of adultery” identical inheritance rights to those of legitimate children, passed following delivery of the Court’s judgment in Mazurek v. France of 1 February 2000 (see above). | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention. It found in particular that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister did not outweigh the applicant’s claim to a share of his mother’s estate and that the difference of treatment in his regard was discriminatory, as it had no objective and reasonable justification6. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1943 and lives in Orléans.",
"A. Background to the case",
"10. The applicant was recognised by his father at birth. At the time of the applicant’s conception, his mother – Mrs M., née R. – was married and two children had been born of that marriage: A., born in 1923, and J.L., born in 1941. By a decree of 28 February 1967, the applicant’s mother and her husband, Mr M., were pronounced judicially separated.",
"11. By a deed of 24 January 1970, Mr and Mrs M. divided their property inter vivos ( donation-partage ) between their two legitimate children. The deed, which was signed before a notary, provided for a life interest in their favour and for revocation of the gift in the event of a breach of its terms and conditions. When signing the deed Mr and Mrs M. declared that the two donees were their only offspring.",
"12. In a judgment of 24 November 1983 the Montpellier tribunal de grande instance declared the applicant to be the “illegitimate” child of Mrs M., after finding that his status of “illegitimate” child had been fully established.",
"13. In 1984 the applicant expressed his intention to challenge the 1970 deed of inter vivos division. On that date his lawyer informed him that the deed could not be challenged during the donor’s lifetime and that his only option was to bring an action for abatement within five years of the donor’s death.",
"14. The applicant’s mother died in July 1994. The notary administering the estate informed the applicant by letter of 7 September 1994 that, as a child “born of adultery”, he was entitled to only half the share he would have received if he had been a legitimate child (at that time the applicable law provided that a child “born of adultery” could inherit only half the share of a legitimate child – see paragraphs 26 and 27 below). He added that the applicant’s half-brother and half-sister were willing to pay him 298,311 French francs (FRF) (approximately 45,477 euros (EUR)) in cash, while specifying that “in the event of a reduction following the subsequent birth of a child, only a monetary abatement [was] possible and in no circumstances an abatement in kind”. No agreement was reached between the three children.",
"B. Action for abatement brought by the applicant",
"15. By a writ of action dated 7 January 1998, the applicant brought proceedings against his half-brother J.L. and his half-sister A. seeking an abatement of the inter vivos division in accordance with Article 1077-1 of the Civil Code (see paragraph 25 below). He claimed a reserved portion equal to their share of his mother’s estate.",
"16. After the Court had found against France in the case of Mazurek v. France (no. 34406/97, 1 February 2000, ECHR 2000 ‑ II), France passed Law no. 2001-1135 of 3 December 2001 (hereafter “the 2001 Law”), amending its legislation and granting children “born of adultery” identical inheritance rights to those of legitimate children (see paragraph 28 below). That new Law came into force before judgment was given in the proceedings instituted by the applicant. Its transitional provisions provided that, subject to any prior agreement between the parties or final court decision, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of their conception, bound by marriage to another person were applicable to successions that were already open on the date of publication of the Law in the Official Gazette (4 December 2001) and had not given rise to division prior to that date (section 25(2) of the 2001 Law, see paragraph 30 below).",
"17. In his recapitulatory pleading of 20 February 2003, the applicant relied on the provisions of the 2001 Law. In his submission, that Law repealed section 14 of the Filiation Law of 3 January 1972 (hereafter “the 1972 Law”, see paragraphs 27 and 29 below), a transitional provision stipulating that the rights of heirs entitled under that Law to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force. The applicant argued that as that provision had been repealed, he was entitled to bring an action for abatement under Article 1077-1 of the Civil Code even though the deed of inter vivos division had been signed on 24 January 1970.",
"1. Judgment at first instance",
"18. In a judgment of 6 September 2004, the Béziers tribunal de grande instance upheld the applicant’s claim. It found that section 14 of the 1972 Law was contrary to Articles 8 and 14 of the Convention. The court referred in that connection to the Marckx v. Belgium judgment (13 June 1979, Series A no. 31) which recognised “that family life also comprise[d] interests of a material kind”, and to several judgments of the Court “which ha[d] continued to rule that differences of treatment in inheritance matters between children born within and children born outside marriage were discriminatory ( Mazurek, Inze and Vermeire )”. It also found that the provision was contrary to the new 2001 Law. It held that the applicant had the same inheritance rights in respect of the estate as his half-brother and half-sister, for the following reasons:-",
"“Section 25(1) of the Law of 3 December 2001 provides that this Law is applicable from the date on which it comes into force to successions that are already open; subject to any prior agreement between the parties or final court decision, the provisions of this Law are applicable to successions already open on the date of publication of the Law in the Official Gazette of the French Republic where these have not given rise to division prior to that date.",
"In the present case there has not yet been division of Mrs M.’s estate; accordingly, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of their conception, bound by marriage to another person will apply. ...",
"Indeed, it cannot reasonably be argued that the legislature, in enacting the Law of 3 December 2001, intended to maintain a provision contrary to the spirit and aim of the new Law.”",
"2. Judgment on appeal",
"19. In October and December 2004 J.L. and the heirs of A., who had died during the proceedings, appealed against the judgment.",
"20. In a judgment of 14 February 2006, the Montpellier Court of Appeal set aside the lower court’s judgment and declared that, under section 14(2) of the Law of 1972, the applicant was not entitled to bring an action for abatement of the inter vivos division. It held that",
"“... under [that section], the rights acquired to a reserved portion of the estate under the present Law or arising from the new rules regarding the establishment of filiation cannot be exercised to the detriment of inter vivos gifts granted before that Law came into force.",
"This provision, which lays down a general rule regarding, among other things, the retroactive effects of the new rules relating to the establishment of filiation deriving from the Law of 3 January 1972, has not been expressly repealed by the Law of 3 December 2001; neither can it be deduced from the terms of the later Law that it has been tacitly repealed, firstly because its provisions do not conflict with the later Law and secondly because it was not limited solely to application of Article 915 of the Civil Code, which was repealed by that Law.”",
"According to the Court of Appeal, that conclusion did not conflict with the general principle of equality of rights regardless of birth, as guaranteed by Article 1 of Protocol No. 1 and Articles 8 and 14 of the Convention:",
"“Firstly, the sole purpose of the provisions of section 14 of the Law of 1972 is to prohibit heirs who have acquired rights to a reserved portion of the estate under that Law – and extended by the Law of 3 December 2001 – from exercising them to the detriment of inter vivos gifts granted prior to 1 August 1972, without depriving the said heirs of their inheritance rights. Next, there is objective and reasonable justification for section 14 of the Law of 1972 in the light of the legitimate aim pursued, namely, ensuring peaceful family relations by securing rights acquired in that context – sometimes long-standing ones – without at the same time creating an excessive imbalance between heirs, it being observed that [these provisions] are of limited scope both in terms of time and the type of voluntary disposition concerned.”",
"3. Judgment of the Court of Cassation",
"21. The applicant lodged an appeal on points of law. In his grounds of appeal based on a violation of Article 1 of Protocol No. 1 and Article 14 of the Convention, he argued that peaceful family relations could not take precedence over equality, in terms of civil rights, between children born within marriage and children born outside marriage.",
"22. In his opinion, which was communicated to the parties, the advocate ‑ general at the Court of Cassation recommended dismissing the appeal. He made the following submissions to the judges of the First Civil Division of the Court of Cassation:",
"“... should the court not consider that the succession that had been opened did not give rise to division before the date of publication of the Law, seeing that an action for abatement was pending on that date?",
"The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of the 1972 and 2001 Laws. Whilst neither successions already open, nor inter vivos gifts granted prior to the coming into force of the Law of 1972, could be challenged under that Law, the Law of 2001 allows children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that Law.",
"That difference justifies a non-restrictive application of the provisions of the Law of 2001. Only where there has been actual division, or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened. On account of the action for an abatement, the succession already open on the date of publication of the Law of 2001 cannot have “given rise to division” on the date of publication of that Law.",
"I therefore find the submission that the Law of 3 December 2001 is not applicable difficult to sustain. The terms of section 14 of the Law of 3 January 1972, however, are entirely unambiguous. Heirs who have acquired rights under this Law to the reserved portion of the estate cannot exercise those rights “ to the detriment of inter vivos gifts granted before the Law came into force”. Should, then, these provisions be deemed to have been tacitly repealed?",
"Without having regard to the time factor, the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the two Laws that those governing the Law of 1972 have been tacitly repealed. Whilst the approach is different between the transitional provisions enacted in 1972 and those enacted in 2001, they do not, however, appear to me to conflict.",
"By excluding any challenge to inter vivos gifts granted prior to the coming into force of the Law of 1972, the legislature intended to guarantee the legal security required by such gifts. There is nothing to justify calling that legal security into question in 2002, since the earlier transitional provisions complement those laid down by the 2001 Law.",
"It is on those grounds that I invite you to dismiss the first ground of the appeal: the inter vivos gift made on 24 January 1970 cannot be called into question on account of inheritance rights arising from new rules concerning the establishment of filiation. In that connection, whilst it remains debatable whether there had actually been division prior to publication of the Law of 3 December 2001, the existence of an inter vivos gift granted prior to the coming into force of the Law of 3 January 1972 is not in dispute. ...”",
"23. The Court of Cassation dismissed the appeal in a judgment of 14 November 2007, substituting of its own motion a new legal ground. It found that the effect of the transitional provisions of the 2001 Law was that, subject to any prior agreement between the parties or a final court decision, the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person were applicable only to successions that were already open on 4 December 2001 and had not given rise to division before that date (see paragraph 16 above). It found that as division had been triggered by Mrs M.’s death – in July 1994, and thus prior to 4 December 2001 – the above-mentioned provisions were not applicable."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Inter vivos division of property and action for abatement",
"24. Under French law, estate-owners can divide their estate themselves between their heirs. An inter vivos division ( donation-partage ) is a deed by which the donor divides his or her property immediately among his or her heirs ( inter vivos transfer). It is an anticipated, definitive and negotiated division. Title to the property is transferred at the time of the donation, which is also the first (anticipated) step in a succession that will be opened later. According to the case-law of the Court of Cassation, an inter vivos division becomes a division for the purposes of inheritance on the donor’s death. The succession is both opened and definitively liquidated or divided on the date of the ascendant’s death (Court of Cassation, 7 March 1876; First Civil Division, 5 October 1994, Bull. 1994, I, no. 27).",
"25. A descendant who has not received a share of the estate may claim his or her reserved portion from the assets existing when the succession is opened. If there are insufficient assets in the estate, he can bring an action for abatement within five years of the donor’s death. This was the remedy used by the applicant in accordance with Articles 1077-1 and 1077-2 of the Civil Code, which read as follows at the material time:-",
"Article 1077-1",
"“A descendant who has not participated in the inter vivos division of the estate, or has received a lower share than his or her reserved portion, may bring an action for abatement if, when the succession is opened, there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion, regard being had to any voluntary dispositions from which he may have benefited.”",
"Article 1077-2",
"“ Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount, calculation of the reserved portion and reductions.",
"An action for abatement cannot be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue. Such an action shall become time-barred five years after the death.",
"A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion.”",
"26. Articles 913 and 915 of the Civil Code on “the disposable portion of assets” in inter vivos gifts and wills, which have since been repealed, provided as follows:",
"Article 913",
"“Voluntary dispositions, whether granted inter vivos or by will, shall not exceed half of the donor’s assets where he leaves only one child on his death; one third where he leaves two children; and one quarter where he leaves three or more children; no distinction shall be made between legitimate children and children born outside marriage, save in the case provided for in Article 915.”",
"Article 915",
"“A child born outside marriage whose father or mother was, at the time of his conception, bound by marriage to another person is entitled to inherit under his parent’s estate in competition with the legitimate children born of the marriage; account shall be taken of his presence when calculating the disposable portion; however, he shall receive only half the share to which he would have been entitled if all the children, including himself, had been legitimate.",
"The children born of the marriage injured by the adultery shall inherit in equal shares the portion by which the adulterine child’s share of the estate is thus reduced.”",
"B. Development of the law relating to children “born of adultery”",
"27. The inheritance laws relating to children born outside marriage were amended by the Filiation Law of 1972, which conferred equal status on them for inheritance purposes save for the case of children “born of adultery” (see Mazurek, cited above, § 17), whose rights were limited to “half the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate” (see former Articles 757 and 760 of the Civil Code, ibid; see also, regarding gifts, paragraph 26 above ).",
"28. The 2001 Law, which was enacted following the Court’s judgment in the case of Mazurek, eliminated the restrictions on inheritance rights of children “born of adultery” and conferred equal status for inheritance purposes on all children, be they legitimate, born to unmarried parents or “born of adultery”. Section 1 provides that “no distinction shall be made between birth within or birth outside marriage when determining which relatives are entitled to inherit” (Article 733 of the Civil Code) and that “children or their issue shall inherit from their father and mother or other ascendants, irrespective of sex or primogeniture, and even if they are born of different unions” (Article 735 of the Civil Code). The provisions governing the restriction on the reserved portion of children “born of adultery” and their ability to receive gifts have been repealed. Lastly, order no. 2005-759 of 4 July 2005 reforming the filiation rules establishes the principle of equal status regardless of birth, thus eliminating the very concepts of legitimate children and children born outside marriage.",
"C. Transitional provisions",
"1. Transitional provisions of the 1972 Law",
"29. These provisions limited the scope of the reform introduced by the 1972 Law. Section 14 had excluded any immediate application of the new inheritance rights of children born to unmarried parents or “of adultery”, in successions opened before it came into force, and had precluded such children from challenging inter vivos gifts granted before the Law came into force on 1 August 1972. It was on the basis of that provision that the Montpellier Court of Appeal dismissed the applicant’s action (see paragraph 20 above).",
"2. Section 25 of the 2001 Law",
"30. Under section 25(1) of the 2001 Law, entry into force of that Law was in principle deferred until 1 July 2002. However, regarding the repeal of the provisions of the Civil Code concerning the rights of children “born of adultery”, the legislature decided, exceptionally, that the Law would come into force immediately on the date of publication of the Law in the Official Gazette, that is, on 4 December 2001. Accordingly, section 25(2) provides:",
"“The present Law shall apply to successions that are already open from [1 July 2002], subject to the following exceptions: ...",
"(2) Subject to any prior agreement between the parties or final court decision, the following shall apply to successions already open on the date of publication of the present Law in the Official Gazette of the French Republic and not having given rise to division prior to that date:",
"(a) the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person; ...”",
"31. In so far as it concerns the rights of children “born of adultery”, the 2001 Law is therefore applicable to all successions open on 4 December 2001, on condition that there has been no division prior to that date.",
"3. Law of 23 June 2006 reforming successions and voluntary dispositions",
"32. This Law amended section 25(2) of the 2001 Law by repealing the terms “whose father or mother was, at the time of their conception, bound by marriage to another person”. Section 25(2)(2) no longer mentions whether a child was born of adultery or not.",
"4. Relevant case-law of the Court of Cassation",
"33. In a judgment of 6 January 2004 (Court of Cassation, First Civil Division, Bull. 2004, I, no. 10) the Court of Cassation applied the transitional provisions of the 2001 Law, without referring to the provisions of the Convention, in quashing an appeal judgment of 2002 which had set aside gifts granted to a child “born of adultery” under the old provisions whereas there had not yet been division of the estate. In a judgment of 7 June 2006 ( Court of Cassation, First Civil Division, Bull. 2006, I, no. 297), also applying the transitional provisions, the Court of Cassation dismissed an appeal by a child “born of adultery” who had received half the share that he would have received if he had been a legitimate child as division had been made before 4 December 2001 (on 13 March 1996 in that case). In a judgment of 15 May 2008, the Court of Cassation held that the provisions of the 2001 Law relating to the new rights of children “born of adultery” were applicable to a succession opened before 1 August 1972 (in 1962 in that case) where this had not given rise to a division prior to 4 December 2001 (Court of Cassation, First Civil Division, Bull. 2008, I, no. 139).",
"III. ELEMENTS OF COMPARATIVE LAW",
"34. In the great majority of the countries studied (forty States out of forty-two) a child’s status for inheritance purposes is independent of the marital status of their parents. Twenty-one countries confer equal status on all children, while nineteen others (Albania, Azerbaijan, Bosnia-Herzegovina, Cyprus, Spain, Greece, Italy, Latvia, Luxembourg, Republic of Moldova, Monaco, Montenegro, San Marino, Serbia, Slovakia, Slovenia, the United Kingdom, Turkey and Ukraine) make a distinction between legitimate children and children born to unmarried parents/of adultery, but expressly grant them equal status for inheritance purposes. The concept of a child “born of adultery” is not at all common, such children generally being put in the same category as children born outside marriage. Some differences between legitimate children and children born outside marriage/ “of adultery” still exist, for inheritance purposes, in Malta. The only State Party that still makes a clear distinction, for inheritance purposes, regarding children born outside marriage is Andorra, where the latter are treated less favourably than legitimate children.",
"IV. RELEVANT DOCUMENTS AND EUROPEAN CASE-LAW",
"35. The Committee of Ministers Rapporteur Group (GR-J) is still examining the draft recommendation [CM/Rec (2012)] to member states on the rights and legal status of children and parental responsibilities (with the explanatory memorandum) which has been presented to the Committee of Ministers. The draft recommendation seeks to replace the obsolete standards of the European Convention of 1975 on the Legal Status of Children Born out of Wedlock (Convention which France has not ratified), which are no longer in conformity with the Court’s case-law. The text, as currently drafted, contains a central element which is the principle of non-discrimination laid down in Principle 1, which provides:",
"“Children should not be discriminated against on grounds such as ... birth ...",
"In particular, children should not be discriminated against on the basis of the civil status of their parents.”",
"Principle 5 – “Rights of succession” – provides that subject to the definition of parents given in Principle 2 and Principle 17(2) (posthumous conception), “children should regardless of the circumstances of their birth have equal rights of succession to the estate of each of their parents and of those parents’ family.”",
"The relevant paragraph of the explanatory memorandum is worded as follows:",
"“22. Having regard to the general principle of non-discrimination as set out in Principle 1 and to the Court’s rulings in Mazurek v. France, Camp and Bourimi v. the Netherlands and Marckx v. Belgium, that ruled respectively that discrimination against children of adulterous relationships and children born out of wedlock with regard to inheritance rights violated Article 14 of the ECHR, taken in conjunction with Article 1 of the first Protocol in the former case, and Article 8 in the latter case, Principle 5 states in broad terms that children should have equal rights of succession regardless of the circumstances of their birth. In this respect, it has a wider application than Article 9 of the 1975 European Convention on the Legal Status of Children born out of Wedlock which gives such children the same rights of succession as children born in wedlock. Principle 5 is subject to the definition of parents given in Principle 2.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1",
"36. The applicant complained that, as a child “born of adultery”, he was unable to assert his inheritance rights and that such unjustified discrimination persisted after the Court’s judgment in Mazurek and despite the enactment of the 2001 Law.",
"He alleged that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, which read respectively as follows:",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth ...”",
"Article 1 of Protocol No. 1",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"A. The Chamber judgment",
"37. In its judgment of 21 July 2011 the Chamber held that the applicant’s complaint fell within the scope of Article 1 of Protocol No. 1, which sufficed to render Article 14 of the Convention applicable. As his maternal filiation had been recognised in 1983, the applicant had an interest, enforceable in the domestic courts, in asserting his right to receive a share of his mother’s estate in a manner compatible with Article 14 of the Convention (see paragraphs 38-42 of the Chamber judgment).",
"38. The Chamber observed, on the merits, that the 1972 and 2001 Laws had put in place specific transitional provisions in respect of the new inheritance rights enshrined in those Laws. It noted that the domestic courts had considered that the applicant could not benefit from those provisions at the time of lodging his action for abatement of the inter vivos gift of 1970. According to the Court of Appeal, the transitional provision of the 1972 Law precluded any challenge to inter vivos gifts granted before the Law came into force. The Court of Cassation had held that as division of the estate had taken place on the mother’s death in 1994, this precluded – under section 25(2) of the 2001 Law – application of the new provisions providing for equal inheritance rights. Those interpretations of domestic law pursued the legitimate aim of safeguarding the principle of legal certainty and the long-standing rights of the legitimate children. Moreover, they did not appear unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination. The Chamber distinguished the specific situation in the present case from the cases in which there had not yet been division of the estate ( Mazurek, cited above, and Merger and Cros v. France, no. 68864/01, 22 December 2004) in concluding that the difference in treatment in question was proportionate to the aim pursued and that there had been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraphs 50-59 of the Chamber judgment).",
"B. The parties’ submissions",
"1. The Government",
"(a) Applicability of Article 14 of the Convention",
"39. The Government submitted that the facts complained of by the applicant did not fall within the scope of Article 1 of Protocol No. 1, which rendered Article 14 of the Convention inapplicable. They observed in that connection that the inter vivos division of 1970 had vested title to the property in the two legitimate children and established an acquired legal situation which precluded the applicant from obtaining a share in his mother’s estate. Neither the 1972 Law nor the 2001 Law had had the effect of enabling him to acquire the share in the estate to which he would have been entitled if the deed of 1970 had not existed. Unlike the cases of Mazurek and Merger and Cros, in which the applicants had automatically acquired inheritance rights following the death of their parent, the succession in the present case had been settled in 1970 before the death of the applicant’s mother. Moreover, division of the property had taken effect several years before the applicant’s filiation had been established in 1983. Consequently, according to the Government, the applicant had no inheritance rights in respect of the estate (they referred, mutatis mutandis, to Alboize-Barthes and Alboize-Montezume v. France (dec.), no. 44421/04, 21 October 2008).",
"(b) Merits",
"40. As they had previously submitted before the Chamber, the Government maintained that the applicant had not been “excluded” from his mother’s succession but, in so far as the assets had already been disposed of under the terms of the deed of inter vivos division of 1970, he could not acquire the share to which he would have been entitled under the 1972 and 2001 Laws if that deed had not existed. Accordingly, it was not the judicial decisions in question which had prevented the applicant from inheriting under his mother’s estate, but a prior deed of transfer of property which had established an acquired legal situation.",
"41. It was to those rights acquired by the other heirs that the legislature in 2001 – having, moreover, fully satisfied the general obligations incumbent on it to execute the Mazurek judgment – had had to have regard when bringing the Law into force. Application of the new Law to pre-existing situations necessarily had to abide by the principles of legal certainty and foreseeability of the law established by the case-law of the Court. Section 25 of the 2001 Law thus excluded application of the new rights to successions already open on the date of its publication that had given rise to division before that date. In the Government’s view, the Court of Cassation’s interpretation did not therefore conflict with the Mazurek judgment. Unlike that judgment and the case of Merger and Cros, in which the applicants had challenged situations that were not yet established when they lodged their action in the domestic courts, the action for abatement brought by the applicant in 1998 had sought to challenge a situation in which there had already been division of the estate.",
"42. The Government acknowledged that a judgment finding a violation of the Convention could give rise to general measures in the respondent State and have an impact going beyond the dispute concerning the parties before the Court. Nevertheless, they stated that the Court had never recognised a retroactive effect of its judgments. To claim that the Mazurek judgment should apply to the present case, that is, to a legal situation that had been definitively established before it was delivered, and that it should have retroactive effect, would render Article 46 of the Convention nugatory.",
"2. The applicant",
"(a) Applicability of Article 14 of the Convention",
"43. The applicant did not file additional observations with the Grand Chamber to those produced before the Chamber in which he had expressed his disagreement with the Government on this point (paragraph 37 of the Chamber judgment). He submitted that the establishment of his maternal filiation in 1983 had vested inheritance rights in him at the opening of his mother’s succession – pending on the day he lodged his application – which fell within the scope of Article 1 of Protocol No. 1.",
"(b) Merits",
"44. According to the applicant, the effectiveness of Article 14 of the Convention had to be guaranteed and only “very weighty” reasons could lead to a difference in treatment on the ground of birth being regarded as compatible with the Convention. Legal certainty was neither a right guaranteed by the Convention nor a public-interest ground capable of justifying an infringement of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1.",
"45. What might have been tolerable in 1972, on grounds of the concept of legal certainty, in frustrating the principle of non-discrimination guaranteed by Article 14 could no longer be so after Mazurek. However, the applicant stressed that rights unfairly acquired should not be made secure by the transitional provisions of the 2001 Law, which was meant to put an end to violations of the type found in that judgment. In his submission, in redressing the damage caused to Mr Mazurek the Court had refused to secure pre-existing legal situations obtaining prior to its judgment. The applicant considered that the Court should take note here of the failure to observe the binding force of Mazurek and find against France accordingly. To conclude otherwise would be tantamount to accepting that a State enacting legislation designed to draw the consequences of the Court’s case ‑ law had an indefinite period of time in which to transpose its decisions, and could be concerned, in the particular circumstance, only with future successions, and thus validate ex post facto recognised violations of the Convention. The applicant complained of continuing discrimination which perpetuated the effects of the 1972 Law that had been the subject of a finding against France by the Court and disavowed by the legislature in 2001.",
"46. He further submitted that the action for abatement that he had brought in 1998 had been pending when the 2001 Law was published, which should have resulted in his benefiting from the new rights granted to children “born of adultery”. Consequently, as his action had been pending, his mother’s estate could not have been definitively divided; to conclude otherwise would amount to making actions for abatement of inter vivos divisions an ineffective remedy.",
"C. The Court’s assessment",
"1. Applicability of Article 14 of the Convention",
"(a) General principles",
"47. According to the established case-law of the Court, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997 ‑ I; Petrovic v. Austria, 27 March 1998, § 22, Reports 1998 ‑ II; Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006 ‑ VIII; and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)).",
"(b) Whether the facts of the case fall within the ambit of Article 1 of Protocol No. 1",
"48. In the present case it therefore needs to be determined whether the applicant’s complaint, regarding his inability to assert his inheritance rights by means of an action for abatement of the inter vivos division signed by his mother without regard for his reserved portion, falls within the ambit, that is, the scope of Article 1 of Protocol No. 1.",
"49. The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000 ‑ I).",
"50. Article 1 of Protocol No. 1 does not guarantee the right to acquire possessions (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002 ‑ II (extracts), and Ališić and Others v. Bosnia ‑ Herzegovina Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia (dec.), no. 60642/08, § 52, 17 October 2011), in particular on intestacy or through voluntary dispositions (see, mutatis mutandis, Marckx, cited above, § 50, and Merger and Cros, cited above, § 37). However, “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX; and Association nationale des pupilles de la Nation v. France (dec.), no. 22718/08, 6 October 2009). A legitimate expectation must have a “sufficient basis in national law” (see Kopecký, cited above, § 52; Depalle v. France [GC], no. 34044/02, § 63, ECHR 2010; and Saghinadze and Others v. Georgia, no. 18768/05, § 103, 27 May 2010). Likewise, the concept of “possessions” may extend to a particular benefit of which the persons concerned have been deprived on the basis of a discriminatory condition of entitlement (see Andrejeva v. Latvia [GC], no. 55707/00, § 79, ECHR 2009). However, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see the recapitulation of the relevant principles in Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, with further references to the Commission’s case-law; see also Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 85, ECHR 2001 ‑ VIII; Nerva and Others v. the United Kingdom, no. 42295/98, § 43, ECHR 2002 ‑ VIII; and Stretch v. the United Kingdom, no. 44277/98, § 32, 24 June 2003).",
"51. The issue that needs to be examined in each case is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı v. Turkey, nos. 37639/03, 37655/03, 26736/04 and 42670/04, § 41, 3 March 2009; Depalle, cited above, § 62; Plalam S.P.A. v. Italy (merits), no. 16021/02, § 37, 18 May 2010; and Di Marco v. Italy (merits), no. 32521/05, § 50, 26 April 2011). The Court considers that that approach requires it to take account of the following points of law and of fact.",
"52. In the present case the Court observes that it is purely on account of his status as a child “born of adultery” that the applicant was refused the right to request an abatement of the inter vivos division signed by his mother, that status being the basis of the Court of Cassation’s decision – interpreting the transitional provisions of the 2001 Law – to exclude application in his case of the provisions relating to the new inheritance rights recognised by that Law. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular asset on a discriminatory ground covered by Article 14, the relevant test is whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right, enforceable under domestic law, in respect of the asset in question (see, mutatis mutandis, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 ‑ X, and Andrejeva, cited above, § 79). That test is satisfied in the present case.",
"53. The Government argued that the applicant could not claim any inheritance rights in respect of the inter vivos gift of 1970 because this had had the effect of immediately and irrevocably distributing his mother’s assets, and had done so before his maternal filiation had been judicially established (see paragraph 39 above). The Court cannot accept that argument, however. It notes that whilst inter vivos gifts have the immediate effect of transferring ownership, according to the case-law of the Court of Cassation this does not become a division for inheritance purposes until the death of the donor. The succession is both opened and definitively liquidated or divided on the date of the ascendant’s death (see paragraph 24 above), which in this case was not until 1994. By that date the applicant’s filiation had been established. It was thus indeed on grounds of his status as a child “born of adultery” that the applicant was excluded from his mother’s estate.",
"54. In that connection the present case resembles those of Mazurek and Merger and Cros, cited above, and can be distinguished from the case of Alboize-Barthes and Alboize-Montezume v. France (dec.), cited above, in which it was decided that the liquidation of the applicants’ father’s estate – in 1955, and thus well before their filiation had been established – precluded them from asserting inheritance rights to their late father’s estate and claiming title to a “possession”.",
"55. It follows that the applicant’s pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable.",
"2. The merits",
"(a) General principles",
"56. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek, cited above, §§ 46 and 48). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Stec and Others, cited above, §§ 51 and 52, ECHR 2006 ‑ VI). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background, but the Court must determine in the last resort whether the Convention requirements have been complied with. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Konstantin Markin, cited above, § 126).",
"57. According to the Court’s established case-law since Marckx, cited above, the distinction established for inheritance purposes between children “born outside marriage” and “legitimate” children has raised an issue under Article 8 of the Convention taken alone (see Johnston and Others v. Ireland, 18 December 1986, Series A no. 112) and under Article 14 of the Convention taken in conjunction with Article 8 (see Vermeire v. Belgium, 29 November 1991, Series A no. 214 ‑ C, and Brauer v. Germany, no. 3545/04, 28 May 2009) and Article 1 of Protocol No. 1 (see Inze v. Austria, 28 October 1987, Series A no. 126; Mazurek, cited above; and Merger and Cros, cited above). The Court has extended this case-law to voluntary dispositions by confirming the prohibition on discrimination where testamentary dispositions are concerned (see Pla and Puncernau v. Andorra, no. 69498/01, ECHR 2004 ‑ VIII). Accordingly, as early as 1979, in Marckx, the Court held that restrictions on children’s inheritance rights on grounds of birth were incompatible with the Convention. It has constantly reiterated this fundamental principle, establishing the prohibition of discrimination on grounds of a child’s birth “outside marriage” as a standard of protection of European public order.",
"58. The Court also observes that common ground between the member States of the Council of Europe regarding the importance of equal treatment of children born within and children born outside marriage has been established for a long time, which has, moreover, led to a uniform approach today by the national legislatures on the subject – the principle of equality eliminating the very concepts of legitimate children and children born outside marriage – and to social and legal developments definitively endorsing the objective of achieving equality between children (see paragraphs 28, 34 and 35 above).",
"59. Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention (see Inze, cited above, § 41; Camp and Bourimi v. the Netherlands, no. 28369/95, § 38, ECHR 2000 ‑ X; and Brauer, cited above, § 40).",
"60. The Court is not in principle required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30-31, ECHR 1999 ‑ I; Pla and Puncernau, cited above, § 59; and Karaman v. Turkey, no. 6489/03, § 30, 15 January 2008).",
"(b) Application in the present case",
"(i) Whether there was a difference in treatment on grounds of birth outside marriage",
"61. It is not in dispute in the present case that the applicant was deprived of a reserved portion and definitively placed in a different situation from that of the legitimate children regarding inheritance of their mother’s estate. He was precluded from obtaining an abatement of the inter vivos division from which he had been excluded and a reserved portion on grounds of his status as a child “born of adultery”.",
"62. That difference in treatment between the applicant and his half-brother and half-sister derives from section 25(2) of the 2001 Law, which restricts application of the new inheritance rights of children “born of adultery” to successions opened prior to 4 December 2001 that have not given rise to division before that date (see paragraph 30 above). In interpreting the transitional provision concerned, the Court of Cassation considered that division for inheritance purposes had taken place in 1994, at the time of the applicant’s mother’s death (see paragraph 23 above), in line with long-standing case-law authority to the effect that in respect of inter vivos divisions the death of the donor triggers both the opening of the succession and the division (see paragraph 24 above). A legitimate child who had been omitted from the inter vivos division or not yet conceived when the deed was signed would not have been precluded from obtaining his or her reserved portion or share of the estate in accordance with Articles 1077-1 and 1077-2 of the Civil Code (see paragraph 25 above). It is therefore not disputed that the only reason for the difference in treatment suffered by the applicant was the fact that he had been born outside marriage.",
"63. The Court reiterates that its role is not to rule on which interpretation of the domestic legislation is the most correct, but to determine whether the manner in which that legislation has been applied has infringed the rights secured to the applicant under Article 14 of the Convention (see, among many other authorities and mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257 ‑ B, and Pla and Puncernau, cited above, § 46). In the instant case its task is thus to establish whether there was objective and reasonable justification for the difference in treatment in question, which had its basis in a provision of domestic law.",
"(ii) Justification for the difference in treatment",
"(α) Pursuit of a legitimate aim",
"64. The Government did not advance any further justification for discriminating between legitimate children and children “born of adultery”. The Court notes that the French State agreed to amend its legislation following the Court’s judgment in the case of Mazurek, cited above, and reformed the rules of inheritance law by repealing all the discriminatory provisions relating to children “born of adultery” less than two years after the judgment had been delivered. Moreover, it welcomes this measure bringing French law into line with the Convention principle of non-discrimination.",
"65. However, according to the Government, it was not possible to undermine rights acquired by third parties – in the instant case by the other heirs – and that justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date. The transitional provisions had accordingly been enacted in order to safeguard peaceful family relations by securing the rights acquired by beneficiaries where the estate had already been divided.",
"66. The Court is not convinced that denying the inheritance rights of one or more of its members can contribute to strengthening peaceful relations within a family. However, it accepts that the protection of acquired rights can serve the interests of legal certainty, an underlying value of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII; Beian v. Romania (no. 1), no. 30658/05, § 39, ECHR 2007 ‑ V (extracts); Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 56-57, 20 October 2011; and Albu and Others v. Romania, nos. 34796/09 and 63 other cases, § 34, 10 May 2012). Accordingly, with regard to a succession accepted by a child “born of adultery” when it was opened, in 1993, and liquidated in 1996, it has held that the Court of Cassation’s ruling of inadmissibility on the ground that there had already been division, which precluded the applicant from benefiting from the new rights, under the transitional provisions of the 2001 Law, was in accordance with the principle of legal certainty as reiterated in Marckx. Indeed “a judicial body cannot be required to set aside a freely accepted division in the light of a judgment of the Court delivered after the said division” (see E.S. v. France (dec.), no. 49714/06, 10 February 2009). The Court concludes that the concern to ensure the stability of completed inheritance arrangements, which was an overriding requirement in the opinion of the legislature and the court dealing with the case, constitutes a legitimate aim capable of justifying the difference in treatment in the present case. However, the difference in treatment must have been proportionate to that aim.",
"(β) Proportionality between the means employed and the aim pursued",
"67. The Court observes that in the present case, subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half ‑ sister obtained property rights on the basis of the inter vivos division of 1970 by virtue of which Mrs M.’s estate passed to them on her death in July 1994. On that basis this case is distinguishable from those of Mazurek and Merger and Cros, cited above, in which the estate had not yet passed to the beneficiaries.",
"68. However, the Court reiterates that “protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage” (see Brauer, cited above, § 43). In that connection it considers that the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there was a statutory five-year time-period for bringing an action for abatement of an inter vivos division. The legitimate heirs should therefore have known that their half-brother had until 1999 to claim his share in the estate and that such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s “illegitimate” son in a judgment delivered in 1983 (see paragraph 12 above; see, mutatis mutandis, Camp and Bourimi, cited above, § 39). That was sufficient to arouse justified doubts as to whether the estate had actually passed on Mrs M.’s death in 1994 (see the conclusions of the advocate-general, paragraph 22 above).",
"69. The Court observes on that point that, according to the Government, the specific nature of inter vivos divisions precluded any calling into question of an existing legal situation – in this case the division effected in 1970 and subsequently definitively implemented on the estate-owner’s death – notwithstanding the legal proceedings under way (see paragraphs 40 and 41 above). The applicant challenged that submission (see paragraph 46 above). In the particular circumstances of the case, in which European case-law and the national legislative reforms showed a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage, the Court considers that the action brought by the applicant before the domestic courts in 1998 and dismissed in 2007 is a weighty factor when examining the proportionality of the difference in treatment (see paragraphs 22 and 68 above, and paragraph 72 below). The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate.",
"70. Accordingly, in the light of the foregoing, the Court considers that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate.",
"71. Moreover, it would appear that, even in the eyes of the national authorities, the expectations of heirs who are the beneficiaries of an inter vivos division are not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible.",
"72. In that connection the Court questions the decision of the national court, in 2007 – years after the Marckx and Mazurek judgments cited above – to apply the principle of protection of legal certainty differently according to whether it was asserted against a legitimate child or a child “born of adultery”. It also notes that the Court of Cassation did not address the applicant’s principal ground of appeal relating to an infringement of the principle of non-discrimination as guaranteed by Article 14 of the Convention. The Court has previously held that where an applicant’s pleas relate to the “rights and freedoms” guaranteed by the Convention the courts are required to examine them with particular rigour and care and that this is a corollary of the principle of subsidiarity (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, 28 June 2007, and Magnin v. France (dec.), no. 26219/08, 10 May 2012).",
"(γ) Conclusion",
"73. In the light of all the aforementioned considerations, the Court concludes that there was no reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There was therefore no objective and reasonable justification for the difference in treatment regarding the applicant. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.",
"74. This conclusion does not call into question the right of States to enact transitional provisions where they adopt a legislative reform with a view to complying with their obligations under Article 46 § 1 of the Convention (see, for example, Antoni v. the Czech Republic, no. 18010/06, 25 November 2010; Compagnie des gaz de pétrole Primagaz v. France, no. 29613/08, § 18, 21 December 2010; Mork v. Germany, nos. 31047/04 and 43386/08, §§ 28 to 30 and 54, 9 June 2011; and Taron v. Germany, (dec.), no. 53126/07, 29 May 2012).",
"75. However, whilst the essentially declaratory nature of the Court’s judgments leaves it up to the State to choose the means by which to erase the consequences of the violation (see Marckx, cited above, § 58, and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009), it should at the same time be pointed out that the adoption of general measures requires the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments (see, for example, Salah v. the Netherlands, no. 8196/02, § 77, ECHR 2006 ‑ IX (extracts). This imposes an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court. This was not done in the present case, however.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"76. The applicant complained, on the same grounds as those relied on above in connection with the right to peaceful enjoyment of possessions, of unjustified discrimination infringing his right to respect for his private and family life guaranteed by Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Chamber judgment",
"77. As in the Mazurek judgment, the Chamber did not consider it necessary to examine this question separately, as no distinct arguments had been submitted (see paragraph 60 of the Chamber judgment).",
"B. The parties’ submissions",
"78. The applicant made no observation under Article 8 of the Convention.",
"79. The Government submitted, as their main argument, that there had been no interference in the present case. Questions concerning inheritance on intestacy could fall within the scope of Article 8 but that provision did not guarantee a right to inherit. A decision not to call into question a legal situation acquired in 1970 was not an interference with the applicant’s right to respect for his family life.",
"80. If, however, the Court were to consider that there had been interference, this had been prescribed by law, namely, the 1972 Law prohibiting heirs to a reserved portion of the estate from exercising those rights to the detriment of gifts granted prior to 1972. It had pursued a legitimate aim, namely, guaranteeing peaceful family relations by securing long-standing rights. Relying on the Court’s judgment in Marckx, the Government submitted that it would be contrary to the principle of legal certainty to set aside a division implemented several years (1972 Law) or even several decades (2001 Law) before the legislative and jurisprudential changes amending the inheritance rules applicable to children “born of adultery”. Lastly, that interference had been proportionate because the implementation of the impugned provisions by the domestic courts was limited both in time and in respect of the voluntary dispositions concerned. The Government concluded that the transitional provisions, as interpreted by the domestic courts, were in conformity with the decision in Mazurek and with the Convention. The 2001 Law, in particular, provided for application of the new provisions with regard to the time factor, taking account of acquired situations that it would be undesirable from a social point of view – and unfeasible in certain cases – to call into question. The Government stressed the margin of appreciation available to the State when balancing the competing interests.",
"C. The Court’s assessment",
"81. Having regard to the Court’s conclusions regarding Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 73 above), the Court considers that it is not necessary to examine separately whether there has been a violation of that provision read in conjunction with Article 8 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"82. Under Article 41 of the Convention",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"83. The applicant claimed EUR 128,550.75, which is the share of the estate that would have been paid to him if he had been treated as having equal rights to his half-brother and half-sister, plus interest. The applicant also claimed compensation for non-pecuniary damage which he assessed at EUR 30,000. Lastly, the applicant assessed at EUR 20,946 the costs and expenses incurred before the domestic courts and before the Court.",
"84. The Government submitted that the finding of a violation would be adequate compensation for the pecuniary loss suffered by the applicant. Any monetary compensation awarded for non-pecuniary damage could only be symbolic. With regard to costs and expenses, the Government considered that the award of an aggregate sum of EUR 10,000 would be appropriate.",
"85. In the circumstances of the present case the Court finds that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it will reserve the question in its entirety and fix the subsequent procedure, bearing in mind the possibility of an agreement being reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court gives the parties three months for that purpose."
] |
30 | Mitzinger v. Germany | 9 February 2017 | The applicant in this case complained that she could not assert her inheritance rights after her father’s death in 2009, as she had been born out of wedlock and before a cut-off point provided for by legislation in force at the time. Notably, children born outside marriage before 1 July 1949 were excluded from any statutory entitlement to inherit and from the right to financial compensation. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It found that the aims pursued by the applicant’s difference in treatment, namely the preservation of legal certainty and the protection of the deceased and his family, had been legitimate. However, the Court was not satisfied that excluding children born out of wedlock before a certain cut-off point provided for by legislation had been a proportionate means to achieving the aims sought to be achieved. Decisive for that conclusion was the fact that the applicant’s father had recognised her. Furthermore, she had regularly visited him and his wife. The latter’s awareness of the applicant’s existence, as well as of the fact that the legislation allowed children born inside marriage and outside marriage after the cut-off date to inherit, had therefore to have had a bearing on her expectations to her husband’s estate. In any case, the Court noted, European case-law and national legislative reforms had shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage. | Children’s rights | Affiliation- and inheritance-related rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1940 in Troschenreuth, in the former German Democratic Republic (GDR), and lives in Bayreuth.",
"A. Background to the case",
"6. The applicant is the natural and only daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during that period. Between 1954 and 19 59, the applicant also visited her father and his wife once a year. After the applicant obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis until 2007. He died on 4 January 2009.",
"B. Proceedings in the domestic courts",
"7. On 14 January 2009 the applicant applied to the Memmingen District Court for the right to administer her father ’ s estate, asserting the incapacity of her father ’ s wife to protect the applicant ’ s inheritance due to a grave illness, and notified the District Court of her inheritance claims. Furthermore, she asked to receive copies of all documents relating to the estate. She asserted that between 2002 and 2007 she had regularly visited her father at his retirement home and had talked to him on the telephone. Subsequently, her own health had prevented her from visiting. Telephone calls had been impossible because her father ’ s health had meant he had no longer been able to use a telephone. The retirement home had been in possession of her address and telephone number, and had phoned her on several occasions.",
"8. In a decision of 28 January 2009 the Memmingen District Court dismissed the applicant ’ s application, as there were no indications that the applicant ’ s father ’ s wife could not protect the inheritance. In addition, being born before 1 July 1949 and thus not being a statutory heir, she had no right to receive copies of documents about the estate.",
"9. On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that she needed the power to administer the estate because her father ’ s wife suffered from dementia and that she was a statutory heir because she was her father ’ s natural daughter.",
"10. In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court ’ s decision refusing to give her the power to administer her father ’ s estate, holding that the applicant was not a statutory heir and thus had no right to apply. The Regional Court referred to the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 15 below) and to a decision of the Federal Constitutional Court of 8 December 1976, in which the provision had been found to be in conformity with the Basic Law (see paragraph 16 below).",
"11. On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father ’ s only daughter and her father had been separated from his wife for more than ten years when he had died. Furthermore, cultural and social changes within society had to be considered when interpreting the Basic Law.",
"12. In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant ’ s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. In the Court of Appeal ’ s view, the provision did not contravene the Basic Law, despite German reunification, as the Federal Constitutional Court had held in a decision of 20 November 2003 (file no. 1 BvR 2257/03 ).",
"13. On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the aforementioned provision. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. That was particularly true in her case because she was her father ’ s only child. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law, which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage. That provision prohibited a generalised application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act.",
"14. In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint, which it considered inadmissible for lack of sufficient substantiation (no. 1 BvR 2021/09). It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal ’ s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"15. The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that on the father ’ s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate ( Erbersatzanspruch ). The sole exception concerned children born outside marriage before 1 July 1949: the first sentence of section 12(10)(2) of the Act excluded them from any statutory entitlement to the estate and from the right to financial compensation.",
"16. With regard to further relevant domestic law and practice, the Court refers to its judgment in Brauer v. Germany (no. 3545/04, §§ 17 to 24, 28 May 2009).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"17. The applicant complained that as a child who had been born outside marriage she had been unable to assert her inheritance rights and that there had thus been a violation of Article 14 of the Convention taken in conjunction with Article 8. These provisions read respectively as follows:",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth ...”",
"Article 8",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"18. The Government contested that argument.",
"A. Admissibility",
"1. Exhaustion of domestic remedies",
"19. The Government submitted that the applicant had not exhausted domestic remedies in respect of her complaint under Article 14 of the Convention taken in conjunction with Article 8 and put forward three arguments.",
"20. Firstly, in applying for the right to administer her father ’ s estate, the applicant had failed to initiate proceedings suitable to establish a legally binding inheritance claim and had thus not chosen an appropriate remedy.",
"21. Secondly, the applicant, before the Regional Court, had neither claimed that there had been an interference with her right to respect for her family life pursuant to Article 8 of the Convention, nor demonstrated, in addition to biological parentage, any personal ties indicating the existence of a sufficiently continuous relationship between herself and her father. The submission of those facts in her appeal to the Court of Appeal had been too late as the Court of Appeal had been bound by the facts established before the Regional Court. Thus, the applicant had failed to sufficiently present the facts before the domestic courts from which she wished to derive a violation of the Convention.",
"22. Thirdly, the applicant – as the Federal Constitutional Court had expressly stated – had failed sufficiently to substantiate her constitutional complaint because she had not properly addressed the arguments of the Munich Court of Appeal ’ s decision and had, in view of the Federal Constitutional Court ’ s settled case-law on the question of inheritance rights of children born outside marriage, been obliged to give further reasons, which she had not done.",
"23. The applicant contested those arguments.",
"24. In determining whether, in these circumstances, the applicant can be considered to have exhausted domestic remedies, the Court reiterates that the purpose of the requirement under Article 35 § 1 of the Convention that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right – normally through the courts – the violations alleged against them before those allegations are submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI ). If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III).",
"25. The Court notes that the Government based their objection that the applicant had not exhausted domestic remedies with respect to her complaint under Article 14 of the Convention taken in conjunction with Article 8 on three main arguments. Those were the failure to choose the right domestic remedy for her claim, a failure to demonstrate family ties with her father before the Regional Court and, lastly, the insufficient reasoning of her constitutional complaint.",
"26. The Court observes with regard to the Government ’ s first argument that the applicant ’ s application for administration of the estate was refused on the grounds that she had no right to apply for such an order as she was a child born outside marriage and could thus not be a statutory heir. The applicant ’ s related complaint presented before the Court, namely discrimination on the grounds of her birth, was expressly addressed by the Court of Appeal. Having regard to the clear stance the domestic courts had taken in the proceedings at issue in respect of the applicant ’ s inheritance rights, the Court considers that, in the circumstances of the present case, bringing further proceedings aimed at establishing an inheritance claim had not been an effective remedy which the applicant had been obliged to exhaust.",
"27. As regards the second argument, the Court notes that the applicant applied on 14 January 2009 to the Memmingen District Court for the right to administer her father ’ s estate, asserting her inheritance rights. She submitted that between 2002 and 2007 she had regularly visited her father and talked to him on the telephone and that, at a later stage, her health had prevented her from visiting him. Telephone calls had been impossible with regard to her father ’ s health. The retirement home where her father had lived had been in possession of her address and telephone number and it had telephoned her on several occasions (see paragraph 7 above). In her appeal to the Munich Court of Appeal the applicant argued that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law (see paragraph 11 above). Thus, even though it is true that the applicant did not explicitly refer to Article 8 of the Convention in her initial application of 14 January 2009 to the Memmingen District Court, she named facts establishing not only biological parentage, but also personal ties with her father. The complaint was therefore sufficiently presented before the domestic courts.",
"28. Turning to the last argument, the Court observes that the applicant in her submissions to the Federal Constitutional Court gave a complete account of the proceedings before the lower courts, alleged discrimination due to her status as a child born outside marriage and referred to several decisions of the Constitutional Court to substantiate her reasoning. The Court notes in this connection that it has previously considered, in the particular circumstances of several cases, that domestic remedies had been exhausted for the purposes of Article 35 § 1 of the Convention despite the fact that the applicant ’ s constitutional complaint had been dismissed as inadmissible, as the substance of the complaint had been sufficiently raised before the Federal Constitutional Court (see, inter alia, Uhl v. Germany (dec.), no. 64387/01, 6 May 2004, and Schwarzenberger v. Germany, no. 75737/01, § 31, 10 August 2006). Having regard to the applicant ’ s submissions before the Federal Constitutional Court, the Court finds that the applicant expressly and sufficiently raised the substance of the complaint which she brought before this Court already before the Federal Constitutional Court. As a consequence, she must be regarded as having complied with the requirements under Article 35 § 1 of the Convention for an exhaustion of domestic remedies also in this respect.",
"29. In view of the foregoing, the Government ’ s objection of failure to exhaust domestic remedies must be dismissed.",
"2. Applicability of Article 14 of the Convention",
"30. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts), and Brauer, cited above, § 28 ).",
"31. The Court must therefore determine whether the facts at issue in the present case fall within the ambit of Article 8 of the Convention.",
"32. In this connection, the existence or non-existence of “family life” within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, Brauer, cited above, § 30). Furthermore, a right of succession between children and parents is so closely related to family life that it comes within the sphere of Article 8 (see Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000-X).",
"33. In the instant case the Court observes that the applicant ’ s father recognised her and that the applicant corresponded regularly with her father and visited her father and his wife once a year until 1959. Because of the difficult circumstances resulting from the existence of two separate German States, visits were impossible between 1959 and 1984, when the applicant moved to the FRG. In 1984, the applicant re-established regular visits and visited her father until 2007, when her own health prevented her from further visits. Furthermore, she regularly talked to her father on the telephone, until his health prevented this. Lastly, it is not contested that the retirement home telephoned her on several occasions, which shows that it regarded the applicant as being closely related to her father.",
"34. Accordingly, the Court is in no doubt that the facts of the case fall within the ambit of Article 8 of the Convention. Article 14 of the Convention can therefore apply, taken in conjunction with Article 8.",
"3. Conclusion",
"35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"36. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Fabris, cited above, § 56; and Mazurek v. France, no. 34406/07, § § 46 and 48, ECHR 2000-II).",
"37. The Court notes at the outset that the Government did not dispute the fact that the application of the relevant provisions of domestic law gave rise to a difference in treatment for a child born outside marriage before the cut ‑ off date of 1 July 1949, as compared with a child born within marriage, a child born outside marriage after that date and also, since German reunification, a child born outside marriage before that date who was covered by the law of the former GDR because the father had been resident in GDR territory at the time reunification had taken effect (compare Brauer, cited above, § 34).",
"38. It must therefore be determined whether the difference in treatment was justified.",
"39. The applicant submitted that the difference in treatment was not based on any objective justification. The application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against her, breached her inheritance rights and was therefore not in conformity with the Basic Law. There was no need to protect the legitimate expectations of the deceased or other heirs apart from his father ’ s wife as she was her father ’ s only daughter and her father had bequeathed his whole estate to his wife. Furthermore, cultural and social changes within society had to be considered in the interpretation of the Basic Law.",
"40. The Government, on the contrary, submitted that the difference in treatment had been based on an objective and reasonable justification. The decisions taken by the legislature and the domestic courts had been appropriate and not discriminatory. The intention of the legislature had been to preserve legal certainty and any “legitimate expectations ” that the deceased and their families might have had in view of the Federal Constitutional Court ’ s settled case-law in that regard and in view of the legislature ’ s repeated explicit decisions that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was to be maintained. Furthermore, in the present case the deceased had bequeathed his whole estate to his wife, knowing that the applicant, under domestic law, was excluded from any statutory claims, a decision which had to be respected.",
"41. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx, cited above, § 41 ). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and out of wedlock as regards their civil rights. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the grounds of birth out of wedlock could be regarded as compatible with the Convention (see, with further references, Fabris, cited above, § 59 ).",
"42. The Court considers that the aim pursued by maintaining the impugned provision, namely the preservation of legal certainty and the protection of the deceased and his family, is still arguably a legitimate one (compare Brauer, cited above, § 41).",
"43. With regard to the question of whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued, the Court reiterates that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, the aspect of protecting the “legitimate expectations ” of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage ( see Fabris, cited above, 68, and Brauer, cited above, § 43). It reiterates in this connection that as early as 1979 it held in Marckx (cited above, §§ 54-59) that the distinction made for succession purposes between “illegitimate” and “legitimate” children raised an issue under Articles 14 and 8 taken together (see Brauer, cited above, § 43).",
"44. The Court further considers it to be decisive that the applicant ’ s father recognised her. Furthermore, she visited him and his wife between 1954 and 19 59 once a year (compare Brauer, cited above, § 44). After she had left the GDR and moved to Bavaria, those visits continued on a regular basis until the applicant ’ s health prevented them. Thus the applicant was not a descendant whose existence was unknown to her father ’ s wife (compare Fabris, cited above, § 68).",
"45. The Court notes that the deceased had no direct descendants apart from the applicant, but, in contrast to Brauer, he had a wife, who was appointed sole heir. It takes note of the Government ’ s argument on that point (see paragraph 40 above) according to which that decision had to be respected. Nevertheless, it would appear that even in the eyes of the national authorities the expectations of a sole heir are not protected in all circumstances, as a will such as the one in question does not exclude the right of children born inside marriage and of children born outside marriage after the cut-off date of 1 July 1949 to a statutory share of a deceased ’ s estate. That fact must have had a bearing on the expectations of the father ’ s wife about succeeding to establish undisputed rights to the estate.",
"46. Furthermore, European case-law and the national legislative reforms have shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage. The Court notes that the applicant brought inheritance -related claims before the domestic courts in 2009, directly after her father ’ s death. The proceedings the applicant brought were still pending before the Federal Constitutional Court at the time of the delivery of the judgment in Brauer (cited above), in which this Court found that inequality of inheritance rights on the grounds of birth outside marriage was incompatible with the Convention in a case comparable to that of the applicant. That was sufficient to arouse justified doubts as to whether the applicant would be excluded from any claims to her father ’ s estate (compare Fabris, cited above, § 69).",
"47. Moreover, the Court has to bear in mind that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act excluded the applicant from any statutory entitlement to the estate, without affording her any financial compensation (compare Brauer, cited above, § 44).",
"48. The foregoing considerations are sufficient to enable the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.",
"49. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"50. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"51. The applicant claimed the sum of 6,000 euros (EUR) in respect of pecuniary damage, corresponding to the minimum amount she would have inherited as a statutory heir. She also claimed compensation for non ‑ pecuniary damage, but left the amount to the discretion of the Court. The applicant also claimed EUR 200 of costs for the domestic proceedings and EUR 1,500 as expenses for legal representation.",
"52. The Government contested the sum of EUR 6,000 in respect of pecuniary damage, given that the applicant did not submit any evidence. The Government alleged that the applicant had not suffered any non ‑ pecuniary damage. They further submitted that only the claim for costs of EUR 200 had been accompanied by relevant documents and that the applicant had failed to provide supporting documents with regard to her expenses for legal representation. The amount of statutory reimbursement in that regard would total approximately EUR 500.",
"53. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court allows the parties three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention to submit their observations on the matter and, in particular, to notify the Court of any agreement that they may reach."
] |
31 | Genovese v. Malta | 11 October 2011 | The applicant was born out of wedlock of a British mother and a Maltese father. After the latter’s paternity had been established judicially, the applicant’s mother filed a request for her son to be granted Maltese citizenship. Her application was rejected on the basis that Maltese citizenship could not be granted to an illegitimate child whose mother was not Maltese. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention. It noted in particular that the 1975 European Convention on the Legal Status of Children Born out of Wedlock was in force in more than 20 European countries and reiterated that very weighty reasons would have had to be advanced to justify an arbitrary difference in treatment on the ground of birth. The applicant was in an analogous situation to other children with a father of Maltese nationality and a mother of foreign nationality. The only distinguishing factor, which had rendered him ineligible to acquire citizenship, was the fact that he had been born out of wedlock. The Court was not convinced by the Maltese Government’s argument that children born in wedlock had a link with their parents resulting from their parents’ marriage, which did not exist in cases of children born out of wedlock. It was precisely a distinction in treatment based on such a link which Article 14 of the Convention prohibited, unless it was otherwise objectively justified. Furthermore, the Court could not accept the argument that, while the mother was always certain, a father was not. In the applicant’s case, his father was known and was registered in his birth certificate, yet the distinction arising from the Citizenship Act had persisted. Accordingly, no reasonable or objective grounds had been given to justify that difference in treatment. | Children’s rights | Citizenship | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background of the case",
"7. The applicant was born in 1996 and lives in Hamilton.",
"8. The applicant was born in Scotland and his birth was registered there. He was born out of wedlock and is the son of a British mother and a Maltese father. The latter’s paternity has been determined both judicially and scientifically (see below). Mr G., the applicant’s father, of Maltese citizenship, has refused to acknowledge his son or to maintain a relationship with him.",
"9. On an unspecified date the applicant’s mother made a request for her son to be granted Maltese citizenship.",
"10. On 4 September 1996, the Malta High Commission informed the applicant’s mother that since she was not a Maltese citizen and the father of the applicant had not yet been declared to be a Maltese citizen on the applicant’s birth certificate, the applicant was not entitled to Maltese citizenship. She was informed that citizenship would be granted only if the Maltese father recognised his son on the applicant’s birth certificate.",
"11. Subsequently, the applicant’s mother instituted proceedings in Scotland for the Maltese man with whom she had had a relationship to be declared the applicant’s father on the applicant’s birth certificate. By a decree of an unspecified date the Scottish courts declared Mr G., a Maltese citizen, to be the applicant’s biological father. Consequently, the applicant’s birth certificate was amended to reflect the established paternity.",
"12. According to the Government, in the meantime the applicant’s mother was informed that even if Mr G. was judicially declared to be the applicant’s father the applicant would still not be eligible for citizenship in view of section 5(2)(b) and 17(1)(a) of the Maltese Citizenship Act, which stated that children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese.",
"13. Subsequently, the applicant’s mother again submitted an application under section 5(2)(b) of the Maltese Citizenship Act (see Relevant Domestic Law below) for her son to be granted Maltese citizenship.",
"14. On an unspecified date her application was rejected on the basis that Maltese citizenship could not be granted to an illegitimate child in cases where the illegitimate offspring was born to a non-Maltese mother and a Maltese father, in accordance with section 17(1)(a) of the Maltese Citizenship Act (see Relevant Domestic Law). Since the applicant was not born to a married couple, as a result of the application of Article 17(1)(a) any reference to the “father” in section 5(2)(b) had to be deemed to be a reference to the mother.",
"15. By a judgment of 27 February 2003 the Civil Court (First Hall) in Malta also declared Mr G. to be the applicant’s biological father and he was ordered to pay maintenance.",
"B. Constitutional redress proceedings",
"16. Pending the above judgment, in 2002, the applicant’s mother in her own name and on behalf of the applicant, as his curator ad litem, instituted constitutional redress proceedings, complaining that the said provision was discriminatory and contrary to both the Maltese Constitution and the Convention.",
"17. On 25 January 2006 the Civil Court, in its constitutional jurisdiction, found that the said provisions were in violation of the Maltese Constitution, because they discriminated against the applicant by depriving him of Maltese citizenship. It further abstained from taking a decision on the compatibility of the provisions with the Convention.",
"18. On 18 July 2006, on appeal, the Constitutional Court reversed the first-instance judgment in respect of the compatibility of the provisions with the Constitution. However, it sent the case back to the Civil Court for a determination on the compatibility of those provisions with the Convention.",
"19. On 4 November 2008 the Civil Court in its constitutional jurisdiction held that section 17(1)(a) of the Maltese Citizenship Act was null vis-á-vis the applicant because it breached his rights under Articles 8 and 14 of the Convention. It held that, in the circumstances of the case, the issue of paternity concerned private life, if not family life, and that the applicant had suffered discrimination on the ground of birth, his illegitimate status, and the sex of his Maltese parent.",
"20. On 27 March 2009, on appeal, the Constitutional Court reversed the first-instance judgment. Noting the amendments in 2007 (see Relevant Domestic Law), it considered that its judgment had to be limited to the parameters of the application before it. It held that the right to citizenship was not a substantive Convention right. The grant or denial of citizenship would not facilitate or create obstacles to the applicant’s family life since his father categorically refused to have any contact with him. Moreover, since the Convention did not oblige a State to allow a non-national spouse to reside in its territory, it could not be said that the State was obliged to grant citizenship to a non-national."
] | [
"II. RELEVANT DOMESTIC LAW",
"21. The Maltese Citizenship Act, Chapter 188 of the Laws of Malta, in so far as relevant, reads as follows:",
"Section 5",
"“(2) A person born outside Malta on or after the appointed day (21 September 1964) shall be deemed to have become or shall become a citizen of Malta at the date of his or her birth:",
"( b ) in the case of a person born on or after 1 August 1989, if at the date of such person’s birth, his or her father or mother is a citizen of Malta ...”",
"Section 17",
"“ (1) In this Act - ( a ) any reference to the father of a person shall, in relation to a person born out of wedlock and not legitimated, be construed as a reference to the mother of that person; ...”",
"By means of Act X of 2007 the following subsections were added to section 5 of the Maltese Citizenship Act:",
"“(3) A person born outside Malta on or after the appointed day who proves he is a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta shall be entitled, upon making an application as may be prescribed and upon taking the oath of allegiance, to be registered as a citizen of Malta:",
"Provided that when the said person is a minor, any such person who according to law has authority over that minor, may submit an application for the registration of the said minor as a citizen of Malta.",
"(4) Any ascendant as provided in subarticle (3) who dies before the 1st August 2007 and who would, but for his death, have been entitled to acquire Maltese citizenship under this article, shall be deemed to have acquired such citizenship for the purposes of subarticle (3).",
"(5) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was alive on 1st August 2007 (for the purposes of this article referred to as \"the relevant parent\") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article or under article 3; so however that any such relevant parent who dies before 1st August 2010 and who would have been entitled to acquire such citizenship under subarticle (3) or under subarticle (3) of article 3 shall be deemed to have acquired such citizenship for the purposes of that subarticle.",
"(6) Where any of the parents of a person applying to be registered as a citizen of Malta by virtue of subarticle (3) was born on or after 1st August 2007 (for the purposes of this article referred to as \"the relevant parent\") and the relevant parent is also a descendant in the direct line of an ascendant born in Malta of a parent likewise born in Malta, such person shall not be entitled to be registered as a citizen of Malta by virtue of subarticle (3) unless the relevant parent had at any time acquired Maltese citizenship under this article.",
"(7) The person applying to be registered as a citizen of Malta under subarticle (3) shall be entitled to be registered as a citizen of Malta if the relevant parent dies after the 31st July, 2010 and the relevant parent had applied for and would have been entitled to be granted Maltese citizenship under this article or under article 3.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION",
"22. The applicant complained that Maltese law provisions regulating acquisition of citizenship by descent, discriminated against him contrary to the provision of Article 14 of the Convention in conjunction with Article 8, which, in so far as relevant, read as follows:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"23. The Government contested that argument.",
"A. Admissibility",
"1. Preliminary objections",
"24. The Government submitted that in 2007 there had been amendments to the law rendering the applicant eligible for citizenship. This notwithstanding, the applicant had failed to apply. They further submitted that the applicant’s submissions in the domestic proceedings had been focused on “family life” and not “private life”.",
"25. In so far as these submissions can be considered as amounting to objections in respect of victim status and non-exhaustion of domestic remedies respectively, the Court notes the following:",
"In the first place, as confirmed by the Constitutional Court (see paragraph 20 above) the scope of the application relates to the applicant’s eligibility for citizenship in the period prior to the amendments in 2007. In consequence, the fact that the applicant has not applied for citizenship following the amendments, which were enacted, more than ten years after the original application for citizenship, has no bearing on the present application.",
"Secondly, in respect of the submissions made before the domestic courts, the Court considers that the applicant raised a complaint under Article 14 in conjunction with both the private and family aspects of Article 8 before the appropriate national courts, in substance and in accordance with the formal requirements of domestic law.",
"26. It follows that the Government’s preliminary objections must be dismissed.",
"2. Applicability",
"27. The Government submitted that the facts of the case did not fall within the ambit of Article 8 as there existed no family life as interpreted in the Court’s case-law, namely, the existence in practice of close personal ties between the applicant and his father. The biological reality was not enough to constitute family life. Moreover, there was no legal impediment to developing family life. Being a European Union (“EU”) citizen, the applicant could visit Malta freely and unlimitedly, reside and also work there. More importantly, the Government submitted that citizenship and nationality were not Convention rights, and thus as held in Family K. and W. v. The Netherlands (no. 11278/84, Commission decision of 1 July 1985, Decisions and Reports (DR) 43, p. 216), Article 14 could not apply.",
"28. The applicant submitted that the circumstances of the case fell within the ambit of “private life”, irrespective of the father’s lack of will to foster a relationship with him. In practice, citizenship would enable the applicant to spend an unlimited time in Malta which he could devote to fostering and deepening a relationship with his father. The fact that the applicant was also a EU citizen had no bearing on the facts of the case since this did not allow him to acquire Maltese citizenship. The relevant EU directives created a series of residence rights subject to conditions and formalities and could not be comparable to outright citizenship.",
"29. The Court, noting that the applicant based his application on Article 14 of the Convention, taken in conjunction with Article 8, reiterates that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto “family” ties. The application of this principle has been found to extend equally to the relationship between natural fathers and their children born out of wedlock. Further, the Court considers that Article 8 cannot be interpreted as only protecting “family life” which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI).",
"30. The Court also reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity (see Dadouch v. Malta, no. 38816/07, § 47, ECHR 2010 ‑ ... (extracts)). The provisions of Article 8 do not, however, guarantee a right to acquire a particular nationality or citizenship. Nevertheless, the Court has previously stated that it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II, and Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II).",
"31. With regard to Article 14, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94; Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291-B; and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II).",
"32. The prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see Abdulaziz, Cabales and Balkandali, cited above, § 78; Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005-X; and E.B. v. France [GC], no. 43546/02, § 48, ECHR 2008 ‑ ...).",
"33. The applicant argues that the denial of citizenship prevented him from spending an unlimited time in Malta, which he could have devoted to fostering a relationship with his biological father. However, the Court notes that there currently exists no family life between the applicant and his father, who has evinced no wish or intention to acknowledge his son or to build or maintain a relationship with him. The Court finds that, in these circumstances, the denial of citizenship cannot be said to have acted as an impediment to establishing family life or otherwise to have had an impact on the applicant’s right to respect for family life. However, as the Court has observed above, even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.",
"34. Maltese legislation expressly granted the right to citizenship by descent and established a procedure to that end. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – must ensure that the right is secured without discrimination within the meaning of Article 14 (see, E.B. v. France, cited above, § 49).",
"35. The applicant’s primary complaint is that, in the exercise of a right granted by domestic law, he was discriminated against on the grounds, inter alia, of his illegitimate status. The latter is a concept covered by Article 14 of the Convention (see Marckx v. Belgium, 13 June 1979, Series A no. 31, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126).",
"36. Accordingly, Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.",
"37. In these circumstances the Court dismisses the preliminary objection raised by the Government.",
"38. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"39. The applicant submitted that he had suffered discrimination in the enjoyment of his rights under Article 8 on the ground of his illegitimate status and/or the sex of his Maltese parent. Indeed, had the applicant’s parents been married, he would have fallen within the parameters of section 5(2)(b) of the Maltese Citizenship Act; However, he fell outside that provision because of his illegitimacy. Moreover, had the applicant’s mother been Maltese the applicant could have obtained citizenship; he failed to do so because it was his father who was Maltese. The applicant was in an analogous situation to any other child with a Maltese father and a foreign mother and who fulfilled all the criteria of section 5(2)(b), and like them would have become a Maltese citizen had it not been for his illegitimate status. This status transpired from his birth certificate, and irrespective of whether his father had voluntarily recognised him or whether there had been a judicial determination to that effect, he was not eligible for citizenship owing to his status.",
"40. The Government submitted that since citizenship was not a right covered by the Convention differential treatment based on illegitimate status could not violate Article 14 of the Convention. As to any distinction based on sex, according to the Government this protection only applied to persons claiming discrimination when compared with other persons of a different sex. In the present case, the applicant was not ineligible for Maltese nationality on the ground of his sex, and the legal distinction based on the sex of his parent was a condition applicable irrespective of his sex. They further submitted that there was no distinction between voluntary acknowledgment of a child and judicial acknowledgment, as even if a father was recognised on the birth certificate, the child would not be eligible for citizenship on the grounds that he or she was illegitimate.",
"41. The Government submitted that a distinction on the basis of legitimacy was necessary since children born in wedlock had a link with their parents resulting from the marriage the parents had contracted, while this link was missing in cases of children born out of wedlock. Indeed, while the identity of the mother was always certain it would not be the case with that of the father. Thus, the social reality in such cases objectively justified treating differently illegitimate biological children of Maltese fathers born to non-Maltese mothers.",
"42. Lastly, they submitted that the applicant had not been in an analogous situation and that bearing in mind the State’s margin of appreciation, the Court should dismiss the applicant’s complaint.",
"43. The Court reiterates that for the purposes of Article 14 a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment in law; the scope of this margin will vary according to the circumstances, the subject matter and its background (see, Inze, cited above, § 41).",
"44. The Court reiterates that the Convention must be interpreted in the light of present-day conditions (see, inter alia, E.B v. France., cited above, § 92). The question of equality between children born in and children born out of wedlock was, at the time of the Inze judgment (cited above) in 1987, already given importance in the member States of the Council of Europe. This was shown by the 1975 European Convention on the Legal Status of Children Born out of Wedlock, which at the time was in force in nine member States of the Council of Europe. Today, twenty-three years later, this Convention is in force in twenty-two member states. Thus, it is clear that the domestic law of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments on the subject. The Court further observes that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 78, 12 November 2008). Thus, in the case of Marckx v. Belgium (cited above) concerning the legal status of children born out of wedlock, the Court based its interpretation on two international conventions of 1962 and 1975 that Belgium, like other States Parties to the Convention, had not yet ratified at the time (§§ 20 and 41). Against this background, even though Malta has not ratified the 1975 European Convention, the Court reaffirms that very weighty reasons would have to be advanced before what appears to be an arbitrary difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, Inze, cited above, § 41).",
"45. The Court notes that the applicant was in an analogous situation to other children with a father of Maltese nationality and a mother of foreign nationality. The only distinguishing factor, which rendered him ineligible to acquire citizenship, was the fact that he had been born out of wedlock.",
"46. The argument put forward by the Government to justify this distinction was the fact that children born in wedlock had a link with their parents resulting from their parents’ marriage, a link which did not exist in cases of children born out of wedlock. However, it is precisely a distinction based on such a link which Article 14 of the Convention protects against. The status of an illegitimate child derives from the fact that his or her parents were not married at the time of their child’s birth. It is therefore a distinction based on such a status which the Convention prohibits, unless it is otherwise objectively justified.",
"47. The Court notes that the only other reason put forward by the Government is the social reality of such cases and the fact that, while a mother is always certain, a father is not. The Court cannot accept this argument. Indeed, as conceded by the Government (see paragraph 40 above), even in cases such as the present where the father was known and registered on the birth certificate, whether voluntarily or by judicial determination, the distinction arising from the provisions of the Citizenship Act persisted.",
"48. The Court accordingly finds that no reasonable or objective grounds have been adduced to justify such difference of treatment of the applicant as a person born out of wedlock.",
"49. There has accordingly been a violation of Article 14 of the Convention in conjunction with Article 8.",
"50. In these circumstances it is unnecessary for the Court to examine whether there has also been discrimination on the basis of the sex of the applicant’s Maltese parent.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"51. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"52. The applicant did not submit any claim for just satisfaction."
] |
32 | D.H. and Others v. the Czech Republic | 13 November 2007 (Grand Chamber) | This case concerned 18 Roma children, all Czech nationals, who were placed in schools for children with special needs, including those with a mental or social handicap, from 1996 to 1999. The applicants claimed that a two-tier educational system was in place in which the segregation of Roma children into such schools – which followed a simplified curriculum – was quasi-automatic. | The Court noted in particular that, at the relevant time, the majority of children in special schools in the Czech Republic were of Roma origin. Roma children of average/above average intellect were often placed in those schools on the basis of psychological tests which were not adapted to people of their ethnic origin. The Court concluded that the law at that time had a disproportionately prejudicial effect on Roma children, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1. | Roma and Travellers | Placement of Roma gypsy children in “special” schools | [
"I. THE CIRCUMSTANCES OF THE CASE",
"11. Details of the applicants ’ names and places of residence are set out in the Annex.",
"A. Historical background",
"12. According to documents available on the website of the Roma and Travellers Division of the Council of Europe, the Roma originated from the regions situated between north- west India and the Iranian plateau. The first written traces of their arrival in Europe date back to the fourteenth century. Today there are between eight and ten million Roma living in Europe. They are to be found in almost all Council of Europe member States and indeed, in some central and east European countries, they represent over 5% of the population. The majority of them speak Romany, an Indo-European language that is understood by a very large number of Roma in Europe, despite its many variants. In general, Roma also speak the dominant language of the region in which they live, or even several languages.",
"13. Although they have been in Europe since the fourteenth century, often they are not recognised by the majority of society as a fully fledged European people and they have suffered throughout their history from rejection and persecution. This culminated in their attempted extermination by the Nazis, who considered them an inferior race. As a result of centuries of rejection, many Roma communities today live in very difficult conditions, often on the fringe of society in the countries where they have settled, and their participation in public life is extremely limited.",
"14. In the Czech Republic the Roma have national - minority status and, accordingly, enjoy the special rights associated therewith. The National Minorities Commission of the Government of the Czech Republic, a governmental consultative body without executive power, has responsibility for defending the interests of the national minorities, including the Roma.",
"As to the number of Roma currently living in the Czech Republic, there is a discrepancy between the official, census-based, statistics and the estimated number. According to the latter, which is available on the website of the Minorities Commission of the Government of the Czech Republic, the Roma community now numbers between 1 50,000 and 300,000 people.",
"B. Special schools",
"15. According to information supplied by the Czech Government, the special schools ( zvláštní školy ) were established after the First World War for children with special needs, including those suffering from a mental or social handicap. The number of children placed in these schools continued to rise (from 23,000 pupils in 1960 to 59,301 in 1988). Owing to the entrance requirements of the primary schools ( základní školy ) and the resulting selection process, prior to 1989 most Roma children attended special schools.",
"16. Under the terms of the Schools Act (Law no. 29/1984), the legislation applicable in the present case, special schools were a category of specialised school ( speciální školy ) and were intended for children with mental deficiencies who were unable to attend “ordinary” or specialised primary schools. Under the Act, the decision to place a child in a special school was taken by the head teacher on the basis of the results of tests to measure the child ’ s intellectual capacity carried out in an educational psychology centre and was subject to the consent of the child ’ s legal guardian.",
"17. Following the switch to the market economy in the 1990s, a number of changes were made to the system of special schools in the Czech Republic. These changes also affected the education of Roma pupils. In 1995 the Ministry of Education issued a directive concerning the provision of additional lessons for pupils who had completed their compulsory education in a special school. Since the 1996/97 school year, preparatory classes for children from disadvantaged social backgrounds have been opened in nursery, primary and special schools. In 1998 the Ministry of Education approved an alternative educational curriculum for children of Roma origin who had been placed in special schools. Roma teaching assistants were also assigned to primary and special schools to assist the teachers and facilitate communication with the families. By virtue of amendment no. 19/2000 to the Schools Act, which came into force on 18 February 2000, pupils who had completed their compulsory education in a special school were also eligible for admission to secondary schools, provided they satisfied the entrance requirements for their chosen course.",
"18. According to data supplied by the applicants, which was obtained through questionnaires sent in 1999 to the head teachers of the 8 special schools and 69 primary schools in the town of Ostrava, the total number of pupils placed in special schools in Ostrava came to 1,360, of whom 762 (56%) were Roma. Conversely, Roma represented only 2.26% of the total of 33,372 primary-school pupils in Ostrava. Further, although only 1.8% of non-Roma pupils were placed in special schools, in Ostrava the proportion of Roma pupils assigned to such schools was 50.3%. Accordingly, a Roma child in Ostrava was 27 times more likely to be placed in a special school than a non-Roma child.",
"According to data from the European Monitoring Centre on Racism and Xenophobia (now the European Union Agency for Fundamental Rights), more than half of Roma children in the Czech Republic attend special schools.",
"The Advisory Committee on the Framework Convention for the Protection of National Minorities observed in its report of 26 October 2005 that, according to unofficial estimates, the Roma represent up to 70% of pupils enrolled in special schools.",
"Lastly, according to a comparison of data on fifteen countries, including countries from Europe, Asia and North America, gathered by the Organisation for Economic Cooperation and Development in 1999 and cited in the observations of the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association [1], the Czech Republic ranked second highest in terms of placing children with physiological impairments in special schools and in third place in the table of countries placing children with learning difficulties in such schools. Further, of the eight countries who had provided data on the schooling of children whose difficulties arose from social factors, the Czech Republic was the only one to use special schools; the other countries concerned almost exclusively used ordinary schools for the education of such children.",
"C. The facts of the instant case",
"19. Between 1996 and 1999 the applicants were placed in special schools in Ostrava, either directly or after a spell in an ordinary primary school.",
"20. The material before the Court shows that the applicants ’ parents had consented to and in some instances expressly requested their children ’ s placement in a special school. Consent was indicated by signing a pre-completed form. In the case of applicants nos. 12 and 16, the dates on the forms are later than the dates of the decisions to place the children in special schools. In both instances, the date has been corrected by hand, and one of them is accompanied by a note from the teacher citing a typing error.",
"The decisions on placement were then taken by the head teachers of the special schools concerned after referring to the recommendations of the educational psychology centres where the applicants had undergone psychological tests. The applicants ’ school files contained the report on their examination, including the results of the tests with the examiners ’ comments, drawings by the children and, in a number of cases, a questionnaire for the parents.",
"The written decision concerning the placement was sent to the children ’ s parents. It contained instructions on the right to appeal, a right which none of them exercised.",
"21. On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. It would appear that four of the applicants (nos. 5, 6, 11 and 16 in the Annex ) were successful in aptitude tests and thereafter attended ordinary schools.",
"22. In the review and appeals procedures referred to below, the applicants were represented by a lawyer acting on the basis of signed written authorities from their parents.",
"1. Request for reconsideration of the case outside the formal appeal procedure",
"23. On 15 June 1999 all the applicants apart from those numbered 1, 2, 10 and 12 in the Annex asked the Ostrava Education Authority ( Školský úřad ) to reconsider, outside the formal appeal procedure ( přezkoumání mimo odvolací řízení ), the administrative decisions to place them in special schools. They argued that their intellectual capacity had not been reliably tested and that their representatives had not been adequately informed of the consequences of consenting to their placement in special schools. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination.",
"24. On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, the conditions for bringing proceedings outside the appeal procedure were not satisfied in their case.",
"2. Constitutional appeal",
"25. On 15 June 1999 applicants nos. 1 to 12 in the Annex lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special- education system. In that connection, they relied on, inter alia, Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests.",
"In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that were reflected in the existence of two separately organised educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment, and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). Arguing that they had received an inadequate education and an affront to their dignity, the applicants asked the Constitutional Court ( Ústavní soud ) to find a violation of their rights, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory lessons.",
"26. In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology centre and with the consent of their representatives. Furthermore, despite having been notified of the relevant decisions, none of the representatives had decided to appeal. According to the schools, the applicants ’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Annex) had been advised that there was a possibility of their being placed in primary school.",
"The Education Authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the Schools Inspectorate.",
"The Ministry of Education denied any discrimination and noted a tendency on the part of the parents of Roma children to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child ’ s intellectual capacity and that parental consent was a decisive factor. It further noted that there were eighteen educational assistants of Roma origin in schools in Ostrava.",
"27. In their final written submissions, the applicants pointed out (i) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school, (ii) that the reports from the educational psychology centres contained no information on the tests that were used, and (iii) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the Czech language, an over-tolerant attitude on the part of the parents or an ill-adapted social environment, etc. They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment.",
"28. On 20 October 1999 the Constitutional Court dismissed the applicants ’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and constructive consideration to the applicants ’ proposals.",
"(a) With regard to the complaint of a violation of the applicants ’ rights as a result of their placement in special schools, the Constitutional Court held that, as only five decisions had actually been referred to in the notice of appeal, it had no jurisdiction to decide the cases of those applicants who had not appealed against the decisions concerned.",
"As to the five applicants who had lodged constitutional appeals against the decisions to place them in special schools (nos. 1, 2, 3, 5 and 9 in the Annex), the Constitutional Court decided to disregard the fact that they had not lodged ordinary appeals against those decisions, as it agreed that the scope of their constitutional appeals went beyond their personal interests. However, it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally, since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology centres and with the consent of the applicants ’ representatives.",
"(b) With regard to the complaints of insufficient monitoring of the applicants ’ progress at school and of racial discrimination, the Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants ’ representatives could have obtained this information by liaising with the schools and that there was nothing in the file to indicate that they had shown any interest in transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill- founded.",
"III. COUNCIL OF EUROPE SOURCES",
"A. The Committee of Ministers",
"Recommendation No. R (2000) 4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers ’ Deputies)",
"54. The Recommendation provides as follows:",
"“The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe,",
"Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education;",
"Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance;",
"Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘ socially and culturally handicapped ’;",
"Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children;",
"Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies;",
"Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination;",
"Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy;",
"...",
"Recommends that in implementing their education policies the governments of the member States:",
"– be guided by the principles set out in the appendix to this Recommendation;",
"– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.”",
"55. The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows:",
"“ Guiding principles of an education policy for Roma/Gypsy children in Europe",
"I. Structures",
"1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies.",
"2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies.",
"3. To this end member States should make the Ministries of Education sensitive to the question of education of Roma/Gypsy children.",
"4. In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them.",
"5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents ’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system.",
"6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school.",
"7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.",
"II. Curriculum and teaching material",
"8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States.",
"9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies.",
"10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes.",
"11. The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils.",
"12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children.",
"III. Recruitment and training of teachers",
"13. It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system.",
"14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers.",
"15. Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community.",
"...”",
"B. The Parliamentary Assembly",
"1. Recommendation No. 1203 (1993) on Gypsies in Europe",
"56. The Parliamentary Assembly made, inter alia, the following general observations:",
"“ 1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe.",
"2. A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities.",
"3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts.",
"4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically.",
"5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today.",
"6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority is essential to improve their situation.",
"7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.",
"8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights.",
"...”",
"57. As far as education is concerned, the Recommendation states:",
"“ ...",
"vi. the existing European programmes for training teachers of Gypsies should be extended;",
"vii. special attention should be paid to the education of women in general and mothers together with their younger children;",
"viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies;",
"...”",
"2. Recommendation No. 1557 (2002) on the legal situation of Roma in Europe",
"58. This Recommendation states, inter alia :",
"“...",
"3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups.",
"4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society.",
"...",
"15. The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe :",
"...",
"c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to:",
"i. promoting equal opportunities for Roma on the labour market;",
"ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university;",
"iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration;",
"iv. eradicating all practices of segregated schooling for Romany children, particularly that of routing Romany children to schools or classes for the mentally disabled;",
"d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing :",
"...",
"e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity:",
"...",
"ii. to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education;",
"...",
"v. to recruit Roma teaching staff, particularly in areas with a large Romany population;",
"f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels:",
"...",
"vi. to pay particular attention to the phenomenon of the discrimination against Roma, especially in the fields of education and employment;",
"...”",
"C. The European Commission against Racism and Intolerance (ECRI)",
"1. ECRI General Policy Recommendation No. 3: Combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998)",
"59. The relevant sections of this Recommendation state:",
"“The European Commission against Racism and Intolerance:",
"...",
"Recalling that combating racism, xenophobia, antisemitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights;",
"Stressing that combating racism, xenophobia, antisemitism and intolerance is above all a matter of protecting the rights of vulnerable members of society;",
"Convinced that in any action to combat racism and discrimination, emphasis should be placed on the victim and the improvement of his or her situation;",
"Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply-rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened;",
"Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies;",
"Convinced that the promotion of the principle of tolerance is a guarantee of the preservation of open and pluralistic societies allowing for a peaceful coexistence;",
"recommends the following to Governments of member States:",
"...",
"– to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education;",
"...",
"– to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education;",
"...”",
"2. ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (adopted by ECRI on 13 December 2002)",
"60. The following definitions are used for the purposes of this Recommendation:",
"“ 9 a) ’ racism ’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons.",
"( b) ’ direct racial discrimination ’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.",
"( c) ’ indirect racial discrimination ’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages ... persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. ”",
"61. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of direct and indirect racial discrimination contained in paragraph 1 ( b) and ( c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, and on the case-law of the European Court of Human Rights.",
"3. The report on the Czech Republic published in September 1997",
"62. In the section of the report dealing with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community, and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards the education and training of the members of minority groups, particularly members of the Roma/Gypsy community.",
"4. The report on the Czech Republic published in March 2000",
"63. In this report, ECRI stated that the disadvantages and effective discrimination faced by members of the Roma/Gypsy community in the field of education were of particularly serious concern. It was noted that Roma/Gypsy children were vastly over - represented in special schools and that their channelling to special schools was reported to be often quasi-automatic. Roma/Gypsy parents often favoured this solution, partly to avoid abuse from non-Roma/Gypsy children in ordinary schools and isolation of the child from other neighbourhood Roma/Gypsy children, and partly owing to a relatively low level of interest in education. Most Roma/Gypsy children were consequently relegated to educational facilities designed for other purposes, offering little opportunity for skills training or educational preparation and therefore very limited opportunity for further study or employment. Participation of members of the Roma/Gypsy community in education beyond the primary school level was extremely rare.",
"64. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for those with mental retardation should be fully examined to ensure that any testing used was fair and that the true abilities of each child were properly evaluated. ECRI also considered that it was fundamental that Roma/Gypsy parents should be made aware of the need for their children to receive a normal education. In general, ECRI considered that there was a need for closer involvement of members of the Roma/Gypsy community in matters concerning education. As a start, the authorities needed to ensure that Roma/Gypsy parents were kept fully informed of measures taken and were encouraged to participate in educational decisions affecting their children.",
"5. The report on the Czech Republic published in June 2004",
"65. With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child ’ s mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As to the other element required in order to send a child to a special school – the consent of the child ’ s legal guardian – ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised help and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from ordinary schools.",
"ECRI also noted that the Schools Act had come into force in January 2000 and provided the opportunity for pupils from special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required to follow the secondary-school curriculum. There were no measures in place to provide additional education to pupils who had gone through the special- school system to bring them to a level where they would be adequately prepared for ordinary secondary schools.",
"ECRI had received very positive feedback concerning the success of ‘ zero- grade courses ’ (preparatory classes) at pre-school level in increasing the number of Roma children who attended ordinary schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the proposed new Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the “ socially disadvantaged ”.",
"Lastly, ECRI noted that, despite initiatives taken by the Ministry of Education ( classroom assistants, training programmes for teachers, revision of the primary- school curriculum), the problem of low levels of Roma participation in secondary and higher education that had been described by ECRI in its second report persisted.",
"D. Framework Convention for the Protection of National Minorities",
"1. The report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities",
"66. The report stated that the government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Roma community, by opening preparatory classes in elementary and special schools. It was noted that “Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests”. In some special schools Roma pupils made up between 80% and 90% of the total number of pupils.",
"2. The report submitted by the Czech Republic on 2 July 2004",
"67. The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004 (the Act, Law no. 561/2004, was passed on 24 September 2004 and came into force on 1 January 2005).",
"In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the socio-cultural handicap of Roma children, but also to the nature of the whole education system and its inability to sufficiently reflect cultural differences. The proposed new Schools Act would bring changes to the special- education system by transforming “special schools” into “special primary schools”, thus providing the children targeted assistance in overcoming their socio-cultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning pre-school education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the pre-school stage for children from disadvantaged socio-cultural backgrounds.",
"The report also cited a number of projects and programmes that had been implemented nationally in this sphere (Support for Roma integration, Programme for Roma integration/Multicultural education reform, and Reintegrating Roma special- school pupils in primary schools).",
"3. Opinion on the Czech Republic of the Advisory Committee on the Framework Convention for the Protection of National Minorities, published on 25 January 2002",
"68. The Advisory Committee noted that, while the special schools were designed for mentally handicapped children, it appeared that many Roma children who were not mentally handicapped were placed in these schools due to real or perceived language and cultural differences between Roma and the majority. It considered that this practice was not compatible with the Framework Convention and stressed that placing children in such schools should take place only when absolutely necessary and always on the basis of consistent, objective and comprehensive tests.",
"69. The special schools had led to a high level of separation of Roma pupils from others and to a low level of educational skills in the Roma community. This was recognised by the Czech authorities. Both governmental and civil society actors agreed on the need for a major reform. There was however disagreement about the precise nature of the reform to be carried out, the amount of resources to be made available and the speed with which reforms were to be implemented. The Advisory Committee was of the opinion that the Czech authorities ought to develop the reform, in consultation with the persons concerned, so as to ensure equal opportunities for access to schools for Roma children and equal rights to an ordinary education, in accordance with the principles set out in Committee of Ministers Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe.",
"70. The Advisory Committee noted with approval the initiatives that had been taken to establish so-called zero classes, allowing the preparation of Roma children for basic school education, inter alia, by improving their Czech language skills, and encouraged the authorities to make these facilities more broadly available. It also considered the creation of posts of Roma pedagogical advisers in schools, a civil society initiative, to be a most positive step. The Advisory Committee encouraged the State authorities in their efforts to ensure the increase and development of such posts. A further crucial objective was to ensure a much higher number of Roma children had access to and successfully completed secondary education.",
"4. The Advisory Committee ’ s opinion on the Czech Republic, published on 26 October 2005",
"71. In this opinion, the Advisory Committee noted that the authorities were genuinely committed to improving the educational situation of Roma children, and were trying, in various ways, to realise this aim in practice. In that connection, it noted that it was too early to determine whether the revised educational system introduced by the new Schools Act (Law no. 561/2004) would substantially change the existing situation of over-representation of Roma children in special schools or special classes.",
"72. The Advisory Committee noted that the authorities were paying special attention to the unjustified placement of Roma children in special schools. Tests and methods used to assess children ’ s intellectual abilities upon school enrolment had already been revised with a view to ensuring that they were not misused to the detriment of Roma children. Special educational programmes had been launched to help Roma children overcome their problems. These included waiving fees for the last year of pre-school education, relaxing the rules on minimum class sizes, more individualised education, appointing educational assistants (mostly Roma), as well as producing methodological handbooks and guidelines for teachers working with Roma children. Preparatory pre-school classes had also been organised for Roma children, and had worked well, although on a fairly limited scale. To accommodate all the children concerned, these measures needed to be applied more widely. The Advisory Committee also took note of the special support programme for Roma access to secondary and higher education, and of the efforts that had been made to build up a network of qualified Roma teachers and educational assistants.",
"73. The Advisory Committee noted, however, that although constant monitoring and evaluation of the school situation of Roma children was one of the government ’ s priorities the relevant report submitted by the Czech Republic said little about the extent to which they were currently integrated in schools, or the effectiveness and impact of the many measures that had been taken for them. It noted with concern that the measures had produced few improvements and that local authorities did not systematically implement the government ’ s school support scheme and did not always have the determination needed to act effectively in this field.",
"74. The Advisory Committee noted with concern that, according to non-governmental sources, a considerable number of Roma children were still being placed in special schools at a very early age, and that revision of the psychological tests used in this context had not had a marked impact. According to unofficial estimates, Roma accounted for up to 70% of pupils in these schools, and this – having regard to the percentage of Roma in the population – raised doubts concerning the tests ’ validity and the methodology followed. This situation was made all the more disturbing by the fact that it also made it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in society. Although legislation no longer prevented children from advancing from special to ordinary secondary schools, the level of education offered by special schools generally did not make it possible to cope with the requirements of secondary schools, with the result that most dropped out of the system. Although estimates of the number of Roma children who remained outside the school system varied, those who did attend school rarely advanced beyond primary school.",
"75. In addition, the Advisory Committee noted that, in spite of the awareness-raising initiatives taken by the Ministry of Education, many of the Roma children who attended ordinary schools were isolated by other children and by teaching staff, or even placed in separate classes. At the same time, it was recognised that in some schools Roma children were the largest pupil group simply because the schools concerned were located near the places where Roma resided compactly. According to other sources, material conditions in some of the schools they attended were precarious and the teaching they received was still, in most cases, insufficiently adapted to their situation. It was important to ensure that these schools, too, provided quality education.",
"76. According to the Advisory Committee priority had to go to placing Roma children in ordinary schools, supporting and promoting preparatory classes and also to educational assistants. Recruiting Roma teaching staff and making all education staff aware of the specific situation of Roma children also needed to receive increased attention. An active involvement on the part of the parents, in particular with regard to the implementation of the new Schools Act, also needed to be promoted as a condition sine qua non for the overall improvement of the educational situation of the Roma. Lastly, more determined action was needed to combat isolation of Roma children in both ordinary and special schools. A clearer approach, coupled with instructions and immediate action on all levels, was needed to put an end to unjustified placement of these children in special schools designed for children with mental disabilities. Effective monitoring measures, particularly designed to eliminate undue placement of children in such schools, had to be one of the authorities ’ constant priorities.",
"E. Commissioner for Human Rights",
"Final Report by Mr Alvaro Gil-Robles on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006)",
"77. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools or a clear over-representation of Roma children in classes for children with special needs. Roma children were frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs was likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denied both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation.",
"78. The Commissioner was told that in the Czech Republic the young members of the Roma/Gypsy community were drastically over-represented in “special” schools and classes for children with a slight mental disability. At the same time he noted that the authorities had introduced Roma assistant teachers in ordinary classes and set up preliminary classes and that these initiatives had had promising results, though only on a small scale due to the lack of adequate resources. In particular, preparatory classes for socially disadvantaged children had been central in efforts to overcome excessive attendance of Roma children in special schools. The Czech authorities deemed that preparatory schools attached to nursery schools had been particularly successful in easing the integration of Roma children in ordinary schools. In 2004 the Czech Republic also had 332 teaching assistants who attended to the special needs of Roma pupils.",
"79. It was also noted that special classes or special curricula for the Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romany -language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents, who themselves might not have had the possibility to attend school, of the necessity and benefits of adequate education for their children.",
"80. In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school- assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity.",
"VI. OTHER SOURCES",
"A. European Monitoring Centre on Racism and Xenophobia (now the European Union Agency for Fundamental Rights)",
"103. The information on education in the Czech Republic available on the website of the European Monitoring Centre includes the following.",
"“In the Czech Republic, there are no official or non-official data on racism and discrimination in education available.",
"The most serious problem of the Czech education system is still the segregatory placement of children from socially disadvantaged backgrounds (very often Roma) in special schools. More than half of Roma children study there. Such tendencies of the Czech education system especially at elementary schools were proved by extensive research carried out by the Institute of Sociology of the Academy of Sciences of the Czech Republic. Only a very small percentage of Roma youth enter secondary schools.”",
"104. The Monitoring Centre ’ s report entitled “ Roma and Travellers in Public Education ”, which was published in May 2006 and concerned what at the time were twenty-five member States of the European Union, noted, inter alia, that although systematic segregation of Roma children no longer existed as educational policy segregation was practised by schools and educational authorities in a number of different, mostly indirect, ways, sometimes as the unintended effect of policies and practices and sometimes as a result of residential segregation. Schools and educational authorities may, for example, segregate pupils on the basis of a perception of “their different needs” and/or as a response to behavioural issues and learning difficulties. The latter could also lead to the frequent placement of Roma pupils in special schools for mentally handicapped children, which was still a worrying phenomenon in member States of the European Union like Hungary, Slovakia and the Czech Republic. However, steps were being taken to review testing and placement procedures taking into account the norms and behavioural patterns of the Roma children ’ s social and cultural background.",
"B. The House of Lords",
"105. In its decision of 9 December 2004 in the case of Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, the House of Lords unanimously held that British immigration officers working at Prague Airport had discriminated against Roma wishing to travel from the airport to the United Kingdom as they had on racial grounds treated them less favourably than other people travelling to the same destination.",
"106. Baroness Hale of Richmond said, inter alia :",
"“73. ... The underlying concept in both race and sex discrimination laws is that individuals of each sex and all races are entitled to be treated equally. Thus it is just as discriminatory to treat men less favourably than women as it is to treat women less favourably than men; and it is just as discriminatory to treat whites less favourably than blacks as it is to treat blacks less favourably than whites. The ingredients of unlawful discrimination are (i) a difference in treatment between one person and another person (real or hypothetical) from a different sex or racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on sex or racial grounds. However, because people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds ...",
"74. If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. ...",
"75. The complaint in this case is of direct discrimination against the Roma. Indirect discrimination arises where an employer or supplier treats everyone in the same way, but he applies to them all a requirement or condition which members of one sex or racial group are much less likely to be able to meet than members of another: for example, a test of heavy lifting which men would be much more likely to pass than women. This is only unlawful if the requirement is one which cannot be justified independently of the sex or race of those involved ... But it is the requirement or condition that may be justified, not the discrimination. This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of Article 14 of the European Convention on Human Rights.",
"...",
"90. It is worth remembering that good equal opportunities practice may not come naturally. Many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others. But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong. In 2001, when the operation with which we are concerned began, the race relations legislation had only just been extended to cover the activities of the immigration service. It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for more than quarter of a century.",
"91. It is against this background that such evidence as there is of what happened on the ground at Prague Airport needs to be assessed. The officers did not make any record of the ethnic origin of the people they interviewed. The respondents cannot therefore provide us with figures of how many from each group were interviewed, for how long, and with what result. This, they suggest, makes it clear that the officers were not relying on the Authorisation: if they had been, they would only have had to record their view of the passenger ’ s ethnicity. If correct, that would have been enough to justify refusal of leave. But what it also shows is that no formal steps were being taken to gather the information which might have helped ensure that this high-risk operation was not being conducted in a discriminatory manner. It also means that the only information available is that supplied by the claimants, and in particular the ERRC which was attempting to monitor the operation. The respondents can cast doubt on the reliability of this, but they cannot contradict it or provide more reliable information themselves. ...”",
"C. The United States Supreme Court",
"107. The Supreme Court issued its decision in the case of Griggs v. Duke Power Co., 401 US 424 (1971), in which it established the disparate impact test, after black employees at an electricity generating plant had brought proceedings on the grounds that their employers ’ practice of requiring them to hold a high school diploma or to pass an aptitude test, even for the least well-paid jobs, was discriminatory. Fewer blacks had managed to obtain the diploma or pass the standardised tests. The Supreme Court stated:",
"“The [Civil Rights] Act [of 1964] requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer ’ s lack of discriminatory intent. ...",
"The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless ... they are demonstrably a reasonable measure of job performance ...",
"The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.",
"... Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Schools Act 1984 (Law no. 29/1984 – since repealed by Law no. 561/2004, which came into force on 1 January 2005)",
"29. Prior to 18 February 2000, section 19(1) of the Schools Act provided that to be eligible for secondary-school education pupils had to have successfully completed their primary-school education.",
"Following amendment no. 19/2000, which came into force on 18 February 2000, the amended section 19(1) provided that to be eligible for secondary-school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course.",
"30. Section 31(1) provided that special schools were intended for children with “mental deficiencies” ( rozumové nedostatky ) that prevented them from following the curricula in ordinary primary schools or in specialised primary schools ( speciální základní škola ) intended for children suffering from sensory impairment, illness or disability.",
"B. The Schools Act 2004 (Law no. 561/2004)",
"31. This new Act on school education no longer provides for special schools in the form that had existed prior to its entry into force. Primary education is now provided by primary schools and specialised primary schools, the latter being intended for pupils with severe mental disability or multiple disabilities and for autistic children.",
"32. Section 16 contains provisions governing the education of children and pupils with special educational needs. These are defined in subsection 1 as children suffering from a disability, health problems or a social disadvantage. Section 16(4) provides that for the purposes of the Act a child is socially disadvantaged, inter alia, if it comes from a family environment with low socio-cultural status or at risk of socio-pathological phenomena. Subsection 5 provides that the existence of special educational needs is to be assessed by an educational guidance centre.",
"33. The Act also makes provision, inter alia, for educational assistants, individualised education projects, preparatory classes for socially disadvantaged children prior to the period of compulsory school education and additional lessons for pupils who have not received a basic education.",
"C. Decree no. 127/1997 on specialised schools (since repealed by Decree no. 73/2005, which came into force on 17 February 2005)",
"34. Article 2 § 4 of the Decree laid down that the following schools were available for pupils suffering from mental disability: specialised nursery schools ( speciální mateřské školy ), special schools, auxiliary schools ( pomocné školy ), vocational training centres ( odborná učiliště ) and practical training schools ( praktické školy ).",
"35. Article 6 § 2 stipulated that if during the pupil ’ s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the pupil was required, after an interview with the pupil ’ s representative, to recommend the pupil ’ s placement in another specialised school or an ordinary school.",
"36. Article 7 § 1 stipulated that the decision to place a pupil in or transfer a pupil to, inter alia, a special school was to be taken by the head teacher, provided that the pupil ’ s legal guardians consented. Article 7 § 2 provided that a proposal for a pupil to be placed, inter alia, in a special school could be made to the head teacher by the pupil ’ s legal guardian, the pupil ’ s current school, an educational psychology centre, a hospital or clinic, an authority with responsibility for family and child welfare, a health centre, etc. In the event of the pupil not receiving a place in a special school, the head teacher was required by Article 7 § 3 to notify the pupil ’ s legal guardian and the competent school authority or the municipality in which the pupil was permanently resident of the decision. The education authority was then required, after consulting the municipality, to make a proposal regarding the school in which the pupil would receive his or her compulsory education. Article 7 § 4 required the educational psychology centre to assemble all the documents relevant to the decision and to make a recommendation to the head teacher regarding the type of school.",
"D. Decree no. 73/2005 on the education of children, pupils and students with special educational needs and gifted children, pupils and students",
"37. Article 1 of the Decree provides that pupils and students with special educational needs are to be educated with the help of support measures that go beyond or are different from the individualised educational and organisational measures available in ordinary schools.",
"38. Article 2 provides that children whose special educational needs have been established with the aid of an educational or psychological examination performed by an educational guidance centre will receive special schooling if they have clear and compelling needs that warrant their placement in a special education system.",
"E. Domestic practice at the material time",
"1. Psychological examination",
"39. The testing of intellectual capacity in an educational psychology centre with the consent of the child ’ s legal guardians was neither compulsory nor automatic. The recommendation for the child to sit the tests was generally made by teachers – either when the child first enrolled at the school or if difficulties were noted in its ordinary primary - school education – or by paediatricians.",
"40. According to the applicants, who cited experts in this field, the most commonly used tests appeared to be variants of the Wechsler Intelligence Scale for Children (PDW and WISC- III) and the Stanford-Binet intelligence test. Citing various opinions, including those of teachers and psychologists and the Head of the Special Schools Department at the Czech Ministry of Education in February 1999, the applicants submitted that the tests used were neither objective nor reliable, as they had been devised solely for Czech children, and had not recently been standardised or approved for use with Roma children. Moreover, no measures had been taken to enable Roma children to overcome their cultural and linguistic disadvantages in the tests. Nor had any instructions been given to restrict the latitude that was given in the administration of the tests and the interpretation of the results. The applicants also drew attention to a 2002 report in which the Czech Schools Inspectorate noted that children without any significant mental deficiencies were still being placed in special schools.",
"41. In the report submitted by the Czech Republic on 1 April 1999 pursuant to Article 25 § 1 of the Framework Convention for the Protection of National Minorities, it was noted that the psychological tests “are conceived for the majority population and do not take Romany specifics into consideration”.",
"The Advisory Committee on the Framework Convention noted in its first report on the Czech Republic, which was published on 25 January 2002, that while these schools were designed for mentally handicapped children it appeared that many Roma children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between Roma and the majority. The Committee stressed that “placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests”.",
"In its second report on the Czech Republic published on 26 October 2005 the Advisory Committee observed: “Tests and methods used to assess children ’ s intellectual abilities upon school enrolment have already been revised with a view to ensuring that they are not misused to the detriment of Roma children. ” However, it noted with concern that “revision of the psychological tests used in this context has not had a marked impact. According to unofficial estimates, Roma account for up to 70% of pupils in [special] schools, and this – having regard to the percentage of Roma in the population – raises doubts concerning the tests ’ validity and the relevant methodology followed in practice”.",
"42. In its report on the Czech Republic published on 21 March 2000, the European Commission against Racism and Intolerance (ECRI) noted that channelling of Roma children to special schools was reported to be often quasi-automatic. According to ECRI, the poor results obtained by these children in the pre-school aptitude tests could be explained by the fact that in the Czech Republic most Roma children did not attend kindergarten education. ECRI therefore considered that the practice of channelling Roma/Gypsy children into special schools for those with mental retardation should be fully examined, to ensure that any testing used was fair and that the true abilities of each child were properly evaluated.",
"In its next report on the Czech Republic, which was published in June 2004, ECRI noted that the test developed by the Czech Ministry of Education for assessing a child ’ s mental level was not mandatory, and was only one of a battery of tools and methods recommended to the educational guidance centres.",
"43. In his final report on the human rights situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Commissioner for Human Rights observed: “Roma children are frequently placed in classes for children with special needs without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin. ”",
"44. According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association, countries in east-central and south- eastern Europe typically lacked national definitions of “disability” (related to the placement of students in special schools) and used definitions in which some form of disability was connected to the socio-cultural background of the child, thus leaving the door to discriminatory practices open. Data on children with disabilities were drawn largely from administrative sources rather than being derived from a thorough assessment of the actual characteristics of the child. Thus, divisive practices and the use of a single test were common in the 1990s.",
"It is alleged in the observations that the assessment used to place Roma children in special schools in the Ostrava region ran contrary to effective assessment indicators that were well known by the mid 1990s, for example, those published in 1987 by the National Association for the Education of Young Children (USA). These indicators were now associated with the Global Alliance for the Education of Young Children, which included member organisations in Europe and, more particularly, the Czech Republic. Relevant indicators included : ethical principles to guide assessment practices; the use of assessment instruments for their intended purposes and in such a way as to meet professional quality criteria; assessments appropriate to the ages and other characteristics of the children being assessed; recognition of the developmental and educational significance of the subject matter of the assessment; the use of assessment evidence to understand and improve learning; the gathering of assessment evidence from realistic settings and in situations that reflected children ’ s actual performance; the use of multiple sources of evidence gathered over time for assessments; the existence of a link between screening and follow- up; limitations on the use of individually administered, norm-referenced tests; and adequate information for staff and families involved in the assessment process.",
"Thus, the assessment of Roma children in the Ostrava region did not take into account the language and culture of the children, or their prior learning experiences, or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence were used. Testing was done in one sitting, not over time. Evidence was not obtained in realistic or authentic settings where children could demonstrate their skills. Undue emphasis was placed on individually administered, standardised tests normed on other populations.",
"According to studies cited in these observations (UNICEF Innocenti Insight (2005); Save the Children (200 1 ), Denied a future? The right to education of Roma/Gypsy and Traveller children; D.J. Losen and G. Orfield (2002), Introduction: Racial inequity in special education, Cambridge, MA: Harvard Education Press ), disproportionately placing certain groups of students in special education resulted from an array of factors, including “unconscious racial bias on the part of school authorities, large resource inequalities, an unjustifiable reliance on IQ and other evaluation tools, educators ’ inappropriate responses to the pressures of high-stakes testing, and power differentials between minority parents and school officials”. Thus, school placement through psychological testing often reflected racial biases in the society concerned.",
"45. The Government observed that the unification of European norms used by psychologists was currently under way and that the State authorities had taken all reasonable steps to ensure that the psychological tests were administered by appropriately qualified experts with university degrees applying the latest professional and ethical standards in their specialised field. In addition, research conducted in 1997 by Czech experts at the request of the Ministry of Education showed that Roma children had attained in a standard test of intelligence (WISC- III) only insignificantly lower results than comparable non-Roma Czech children (one point on the IQ scale).",
"2. Consent to placement in a special school",
"46. Article 7 of Decree no. 127/1997 on specialised schools made the consent of the legal guardians a condition sine qua non for the child ’ s placement in a special school. The applicants noted that the Czech legislation did not require the consent to be in writing. Nor did information on the education provided by special schools or the consequences of the child ’ s placement in a special school have to be provided beforehand.",
"47. In its report on the Czech Republic published in March 2000, ECRI observed that Roma parents often favoured the channelling of Roma children to special schools, partly to avoid abuse from non-Roma children in ordinary schools and isolation of the child from other neighbourhood Roma children, and partly owing to a relatively low level of interest in education.",
"In its report on the Czech Republic published in June 2004, ECRI noted that when deciding whether or not to give their consent parents of Roma children continued “ to lack information concerning the long-term negative consequences of sending their children to such schools ”, which were “ often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children”.",
"48. According to information obtained by the International Federation for Human Rights from its Czech affiliate, many schools in the Czech Republic are reluctant to accept Roma children. That reluctance is explained by the reaction of the parents of non-Roma children, which, in numerous cases, has been to remove their children from integrated schools because the parents fear that the level of the school will fall following the arrival of Roma children or, quite simply, because of prejudice against the Roma. It is in that context that Roma children undergo tests designed to ascertain their capacity to follow the ordinary curriculum, following which parents of Roma children are encouraged to place their children in special schools. The parents ’ choice to place their children in special schools, where that is what they choose to do, is consistent with the school authorities ’ desire not to admit so many Roma children that their arrival might induce the parents of non-Roma children to remove their own children from the school.",
"3. Consequences",
"49. Pupils in special schools follow a special curriculum supposedly adapted to their intellectual capacity. After completing their course of compulsory education in this type of school, they may elect to continue their studies in vocational training centres or, since 18 February 2000, in other forms of secondary school (provided they are able to establish during the admissions procedure that they satisfy the entrance requirements for their chosen course).",
"Further, Article 6 § 2 of Decree no. 127/1997 stipulated that, if during the pupil ’ s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil ’ s guardian, to recommend the pupil ’ s placement in another specialised school or in an ordinary school.",
"50. In his final report on the human rights situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Commissioner for Human Rights noted: “Being subjected to special schools or classes often means that these children follow a curriculum inferior to those of mainstream classes, which diminishes their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs is likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denies both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excludes Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation. ”",
"51. The Advisory Committee on the Framework Convention for the Protection of National Minorities noted in its second report on the Czech Republic, which was published on 26 October 2005, that placement in a special school “makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from ‘ special ’ to ordinary secondary schools, the level of education offered by ‘ special ’ schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system”.",
"52. According to the observations submitted by the International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association, the placement of children in segregated special schools was an example of a very early “ tracking ” of students, in this case by assigning children perceived to be of “low ability” or “low potential” to special schools from an early age. Such practices increased educational inequity as they had especially negative effects on the achievement levels of disadvantaged children (see, inter alia, the Communication from the Commission of the European Communities to the Council and to the European Parliament on efficiency and equity in European education and training systems (COM/2006/0481, 8 September 2006) ). The longer-term consequences of “ tracking ” included pupils being channelled towards less prestigious forms of education and training and pupils dropping out of school early. Tracking could thus help create a social construction of failure.",
"53. In their observations to the Court, the organisations Minority Rights Group International, European Network Against Racism and European Roma Information Office noted that children in special schools followed a simplified curriculum that was considered appropriate for their lower level of development. Thus, in the Czech Republic, children in special schools were not expected to know the alphabet or numbers up to ten until the third or fourth year of school, while their counterparts in ordinary schools acquired that knowledge in the first year.",
"IV. RELEVANT COMMUNITY LAW AND PRACTICE",
"81. The principle prohibiting discrimination or requiring equality of treatment is well established in a large body of Community law instruments based on Article 13 of the Treaty establishing the European Community. This provision enables the Council, through a unanimous decision following a proposal/recommendation by the Commission and consultation of the European Parliament, to take the measures necessary to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation.",
"82. Thus, Article 2 § 2 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex provides that “ indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex”. Article 4 § 1, which concerns the burden of proof, reads: “Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. ”",
"83. Similarly, the aim of Council Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to prohibit in their respective spheres all direct or indirect discrimination based on race, ethnic origin, religion or belief, disability, age or sexual orientation. The preambles to these Directives state as follows: “The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence” and “The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. ”",
"84. In particular, Directive 2000/43/EC provides as follows:",
"Article 2 Concept of discrimination",
"“1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.",
"2. For the purposes of paragraph 1:",
"(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;",
"(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.",
"...”",
"Article 8 Burden of proof",
"“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.",
"2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.",
"3. Paragraph 1 shall not apply to criminal procedures.",
"...",
"5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”",
"85. Under the case-law of the Court of Justice of the European Communities (CJEC), discrimination, which entails the application of different rules to comparable situations or the application of the same rule to different situations, may be overt or covert and direct or indirect.",
"86. In its Giovanni Maria Sotgiu v. Deutsche Bundespost judgment of 12 February 1974 (Case 152-73, point 11), the CJEC stated:",
"“The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.",
"...”",
"87. In its Bilka-Kaufhaus GmbH v. Karin Weber von Hartz judgment of 13 May 1986 (Case 170/84, point 31), it stated:",
"“... Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex.”",
"88. In Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez (judgment of 9 February 1999, Case C ‑ 167/97, points 51, 57, 62, 65 and 77), the CJEC observed:",
"“... the national court seeks to ascertain the legal test for establishing whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect discrimination. ...",
"...",
"... the Commission proposes a ‘ statistically significant ’ test, whereby statistics must form an adequate basis of comparison and the national court must ensure that they are not distorted by factors specific to the case. The existence of statistically significant evidence is enough to establish disproportionate impact and pass the onus to the author of the allegedly discriminatory measure.",
"...",
"It is also for the national court to assess whether the statistics concerning the situation ... are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant (see Case C-127/92 Enderby [1993] ECR I-5535, paragraph 17). ...",
"...",
"Accordingly, ... in order to establish whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 of the Treaty, the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex.",
"...",
"... if a considerably smaller percentage of women than men is capable of fulfilling the requirement ... imposed by the disputed rule, it is for the Member State, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim.”",
"89. In its judgment of 23 October 2003 in Hilde Schönheit v. Stadt Frankfurt am Main (Case C-4/02) and Silvia Becker v. Land Hessen (Case C-5/02), the CJEC noted at points 67-69 and 71:",
"“... it must be borne in mind that Article 119 of the Treaty and Article 141(1) and (2) EC set out the principle that men and women should receive equal pay for equal work. That principle precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination ...",
"It is common ground that the provisions of the BeamtVG at issue do not entail discrimination directly based on sex. It is therefore necessary to ascertain whether they can amount to indirect discrimination ...",
"To establish whether there is indirect discrimination, it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men ...",
"...",
"Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part-time for at least a part of their career. Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex.”",
"90. In Debra Allonby v. Accrington & Rossendale College, Education Lecturing Services ... and Secretary of State for Education and Employment (judgment of 13 January 2004, Case C-256/01), it stated (point 81):",
"“... it must be held that a woman may rely on statistics to show that a clause in State legislation is contrary to Article 141(1) EC because it discriminates against female workers. ...”",
"91. Lastly, in Commission of the European Communities v. Republic of Austria (judgment of 7 July 2005, Case C-147/03), the CJEC observed (points 41 and 46-48):",
"“According to settled case-law, the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, in particular, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case C-65/03 Commission v. Belgium, cited above, paragraph 28; and Case C-209/03 Bidar [2005] ECR [I-02119], paragraph 51).",
"...",
"... the legislation in question places holders of secondary education diplomas awarded in a Member State other than the Republic of Austria at a disadvantage, since they cannot gain access to Austrian higher education under the same conditions as holders of the equivalent Austrian diploma.",
"Thus, although paragraph ... applies without distinction to all students, it is liable to have a greater effect on nationals of other Member States than on Austrian nationals, and therefore the difference in treatment introduced by that provision results in indirect discrimination.",
"Consequently, the differential treatment in question could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 27, and D ’ Hoop, cited above, paragraph 36).”",
"V. RELEVANT UNITED NATIONS MATERIALS",
"A. International Covenant on Civil and Political Rights",
"92. Article 26 of the Covenant provides:",
"“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status .”",
"B. United Nations Human Rights Committee",
"93. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non- discrimination, the Committee expressed the following opinion:",
"“... the Committee believes that the term ‘ discrimination ’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.",
"...",
"... when legislation is adopted by a State party, it must comply with the requirement of Article 26 that its content should not be discriminatory .. .”",
"94. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted:",
"“ ... The Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.”",
"C. International Convention on the Elimination of All Forms of Racial Discrimination",
"95. Article 1 of this Convention provides:",
"“ ... the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.",
"... ”",
"D. Committee on the Elimination of Racial Discrimination",
"96. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia :",
"“ 1. ... A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States Parties by Article 2, paragraph 1 (c), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination.",
"2. ... In seeking to determine whether an action has an effect contrary to the Convention, [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.",
"... ”",
"97. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed:",
"“ 3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds.",
"4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...”",
"98. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere:",
"“17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities.",
"18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education.",
"19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.”",
"99. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia :",
"“13. The marginalization of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the Convention is being fully implemented.”",
"E. Convention on the Rights of the Child",
"100. Articles 28 and 30 of this Convention provide:",
"Article 28",
"“1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:",
"(a) Make primary education compulsory and available free to all;",
"(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;",
"(c) Make higher education accessible to all on the basis of capacity by every appropriate means;",
"(d) Make educational and vocational information and guidance available and accessible to all children;",
"(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.",
"2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child ’ s human dignity and in conformity with the present Convention.",
"3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.”",
"Article 30",
"“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”",
"F. Unesco",
"101. Articles 1 to 3 of the Convention against Discrimination in Education of 14 December 1960 provide:",
"Article 1",
"“1. For the purposes of this Convention, the term ‘ discrimination ’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:",
"(a) Of depriving any person or group of persons of access to education of any type or at any level;",
"(b) Of limiting any person or group of persons to education of an inferior standard;",
"(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or",
"(d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.",
"...”",
"Article 2",
"“ When permitted in a State, the following situations shall not be deemed to constitute discrimination, within the meaning of Article [1] of this Convention:",
"(a) The establishment or maintenance of separate educational systems or institutions for pupils of the two sexes, if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study;",
"(b) The establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil ’ s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level;",
"(c) The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.”",
"Article 3",
"“In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake:",
"(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;",
"(b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions;",
"...”",
"102. The Declaration on Race and Racial Prejudice adopted by the Unesco General Conference on 27 November 1978 proclaims as follows:",
"Article 1",
"“1. All human beings belong to a single species and are descended from a common stock. They are born equal in dignity and rights and all form an integral part of humanity.",
"2. All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such. However, the diversity of life styles and the right to be different may not, in any circumstances, serve as a pretext for racial prejudice; they may not justify either in law or in fact any discriminatory practice whatsoever, nor provide a ground for the policy of apartheid, which is the extreme form of racism.",
"... ”",
"Article 2",
"“ ...",
"2. Racism includes racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti-social beliefs and acts; it hinders the development of its victims, perverts those who practise it, divides nations internally, impedes international cooperation and gives rise to political tensions between peoples; it is contrary to the fundamental principles of international law and, consequently, seriously disturbs international peace and security.",
"3. Racial prejudice, historically linked with inequalities in power, reinforced by economic and social differences between individuals and groups, and still seeking today to justify such inequalities, is totally without justification.”",
"Article 3",
"“ Any distinction, exclusion, restriction or preference based on race, colour, ethnic or national origin or religious intolerance motivated by racist considerations, which destroys or compromises the sovereign equality of States and the right of peoples to self-determination, or which limits in an arbitrary or discriminatory manner the right of every human being and group to full development is incompatible with the requirements of an international order which is just and guarantees respect for human rights; the right to full development implies equal access to the means of personal and collective advancement and fulfilment in a climate of respect for the values of civilizations and cultures, both national and world-wide.”",
"Article 5",
"“1. Culture, as a product of all human beings and a common heritage of mankind, and education in its broadest sense, offer men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts, it being understood that it rests with each group to decide in complete freedom on the maintenance, and, if appropriate, the adaptation or enrichment of the values which it regards as essential to its identity.",
"2. States, in accordance with their constitutional principles and procedures, as well as all other competent authorities and the entire teaching profession, have a responsibility to see that the educational resources of all countries are used to combat racism, more especially by ensuring that curricula and textbooks include scientific and ethical considerations concerning human unity and diversity and that no invidious distinctions are made with regard to any people; by training teachers to achieve these ends; by making the resources of the educational system available to all groups of the population without racial restriction or discrimination; and by taking appropriate steps to remedy the handicaps from which certain racial or ethnic groups suffer with regard to their level of education and standard of living and in particular to prevent such handicaps from being passed on to children.",
"... ”",
"Article 6",
"“ 1. The State has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups.",
"2. So far as its competence extends and in accordance with its constitutional principles and procedures, the State should take all appropriate steps, inter alia by legislation, particularly in the spheres of education, culture and communication, to prevent, prohibit and eradicate racism racist propaganda, racial segregation and apartheid and to encourage the dissemination of knowledge and the findings of appropriate research in natural and social sciences on the causes and prevention of racial prejudice and racist attitudes with due regard to the principles embodied in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.",
"3. Since laws proscribing racial discrimination are not in themselves sufficient, it is also incumbent on States to supplement them by administrative machinery for the systematic investigation of instances of racial discrimination, by a comprehensive framework of legal remedies against acts of racial discrimination, by broadly based education and research programmes designed to combat racial prejudice and racial discrimination and by programmes of positive political, social, educational and cultural measures calculated to promote genuine mutual respect among groups. Where circumstances warrant, special programmes should be undertaken to promote the advancement of disadvantaged groups and, in the case of nationals, to ensure their effective participation in the decision-making processes of the community.”",
"Article 9",
"“1. The principle of the equality in dignity and rights of all human beings and all peoples, irrespective of race, colour and origin, is a generally accepted and recognized principle of international law. Consequently any form of racial discrimination practised by a State constitutes a violation of international law giving rise to its international responsibility.",
"2. Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary, while ensuring that they are not such as to appear racially discriminatory. In this respect, particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged, so as to afford them, on a completely equal footing and without discrimination or restriction, the protection of the laws and regulations and the advantages of the social measures in force, in particular in regard to housing, employment and health; to respect the authenticity of their culture and values; and to facilitate their social and occupational advancement, especially through education.",
"... ”",
"THE LAW",
"I. SCOPE OF THE GRAND CHAMBER ’ S JURISDICTION",
"108. In their final observations, which were lodged with the Grand Chamber on 26 September 2006, the applicants repeated their contention that there had been a violation of their rights under Article 3 and Article 6 § 1 of the Convention.",
"109. Under the Court ’ s case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible (see, among other authorities, Leyla Şahin v. Turkey [GC], no. 44774/98, § 128, ECHR 2005-XI, and Üner v. the Netherlands [GC], no. 46410/99, § 41, ECHR 2006 ‑ XII ). The Grand Chamber notes that in its partial decision of 1 March 2005 the Chamber declared inadmissible all the applicants ’ complaints that did not relate to Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, including those under Articles 3 and 6 § 1 of the Convention. Accordingly, the latter complaints – assuming the applicants still wish to rely on them – are not within the scope of the case before the Grand Chamber.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"110. The Court notes that in its decision on the admissibility of the application the preliminary objection made by the Government in their observations of 15 March 2004 of a failure to exhaust domestic remedies was joined to the merits of the complaint under Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. In its judgment of 7 February 200 6 (§ 31), the Chamber found that the parties ’ submissions on the issue of the exhaustion of domestic remedies raised questions that were closely linked to the merits of the case. It agreed with the Czech Constitutional Court that the application raised points of considerable importance and that vital interests were at stake. Accordingly, and in view of its finding that for other reasons pertaining to the merits there had been no violation, the Chamber did not consider it necessary to examine whether the applicants had satisfied that requirement in the present case.",
"111. It will be recalled that where a case is referred to it, the Grand Chamber may also examine issues relating to the admissibility of the application, for example where they have been joined to the merits or are otherwise relevant at the merits stage ( see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII).",
"112. In these circumstances, the Grand Chamber considers it necessary to determine whether the applicants have in the instant case satisfied the exhaustion of domestic remedies requirement.",
"113. The Government argued that the applicants had not used all available means to remedy their position. None of them had exercised their right to appeal against the decisions to place them in special schools. Six had failed to lodge a constitutional appeal. Further, of those applicants who had appealed to the Constitutional Court only five had actually contested the decisions to place them in special schools. No attempt had been made by the applicants to defend their dignity by bringing an action under the Civil Code to protect their personality rights and their parents had not referred the matter to the Schools Inspectorate or the Ministry of Education.",
"114. The applicants submitted, firstly, that there were no remedies available in the Czech Republic that were effective and adequate to deal with complaints of racial discrimination in the education sphere. More specifically, the right to lodge a constitutional appeal had been rendered ineffective by the reasoning followed by the Constitutional Court in the instant case and its refusal to attach any significance to the general practice that had been referred to by the applicants. In the applicants ’ submission, no criticism could therefore be made of those applicants who had chosen not to lodge such an appeal. As to why they had not lodged an administrative appeal, the applicants said that their parents had only gained access to the requisite information after the time allowed for lodging such an appeal had expired. Even the Constitutional Court had disregarded that omission. Finally, an action to protect personality rights could not be regarded as a means of challenging enforceable administrative decisions and the Government had not provided any evidence that such a remedy was effective.",
"Further, even supposing that an effective remedy existed, the applicants submitted that it did not have to be exercised in cases in which an administrative practice, such as the system of special schools in the Czech Republic, made racism possible or encouraged it. They also drew the Court ’ s attention to the racial hatred and numerous acts of violence directed at Roma in the Czech Republic and to the unsatisfactory nature of the penalties imposed for racist and xenophobic criminal offences.",
"115. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. It is for the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success ( see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999-IX).",
"116. The application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. The Court has accordingly recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII).",
"117. In the present case, the Government complained, firstly, that none of the applicants had sought to appeal against the decision ordering their placement in a special school or brought an action to protect their personality rights.",
"118. In this connection, the Court, like the applicants, notes that the Czech Constitutional Court decided to disregard that omission (see paragraph 28 above ). In these circumstances, it considers that it would be unduly formalistic to require the applicants to exercise a remedy which even the highest court of the country concerned had not obliged them to use.",
"119. Secondly, the Government stated that of the twelve applicants who had lodged a constitutional appeal, only five had actually contested the decisions to place them in special schools, so enabling the Constitutional Court to hear their cases.",
"120. The Court notes that by virtue of the fact that the five applicants concerned had brought a constitutional appeal in due form, the Constitutional Court was given an opportunity to rule on all the complaints which the applicants have now referred to the Court. The Constitutional Court also found that the scope of the appeals went beyond the applicants ’ own personal interests so that, in that sense, its decision was of more general application.",
"121. Further, it can be seen from its decision of 20 October 1999 that the Constitutional Court confined itself to verifying the competent authorities ’ interpretation and application of the relevant statutory provisions without considering their impact, which the applicants argued was discriminatory. As regards the complaint of racial discrimination, it also stated that it was not its role to assess the overall social context.",
"122. In these circumstances, there is nothing to suggest that the Constitutional Court ’ s decision would have been different had it been called upon to decide the cases of the thirteen applicants who did not lodge a constitutional appeal or challenge the decision of the head teacher of the special school. In the light of these considerations, the Court is not satisfied that, in the special circumstances of the present case, this remedy was apt to afford the applicants redress for their complaints or offered reasonable prospects of success.",
"123. Consequently, the Government ’ s preliminary objection in this case must be rejected.",
"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1",
"124. The applicants maintained that they had been discriminated against in that because of their race or ethnic origin they had been treated less favourably than other children in a comparable situation without any objective and reasonable justification. They relied in that connection on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which provide as follows:",
"Article 14 of the Convention",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"Article 2 of Protocol No. 1",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"A. The Chamber judgment",
"125. The Chamber held that there had been no violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No 1. In its view, the Government had succeeded in establishing that the system of special schools in the Czech Republic had not been introduced solely to cater for Roma children and that considerable efforts had been made in those schools to help certain categories of pupils to acquire a basic education. In that connection, it observed that the rules governing children ’ s placement in special schools did not refer to the pupils ’ ethnic origin, but pursued the legitimate aim of adapting the education system to the needs, aptitudes and disabilities of the children.",
"126. The Chamber noted in particular that the applicants had not succeeded in refuting the experts ’ findings that their learning difficulties were such as to prevent them from following the ordinary primary- school curriculum. It was further noted that the applicants ’ parents had failed to take any action or had even requested their children ’ s placement or continued placement in a special school themselves.",
"127. The Chamber accepted in its judgment that it was not easy to choose an education system that reconciled the various competing interests and that there did not appear to be an ideal solution. However, while acknowledging that the statistical evidence disclosed worrying figures and that the general situation in the Czech Republic concerning the education of Roma children was by no means perfect, it considered that the concrete evidence before it did not enable it to conclude that the applicants ’ placement or, in some instances, continued placement in special schools was the result of racial prejudice.",
"B. The parties ’ submissions",
"1. The applicants",
"128. The applicants submitted that the restrictive interpretation the Chamber had given to the notion of discrimination was incompatible not only with the aim of the Convention but also with the case-law of the Court and of other jurisdictions in Europe and beyond.",
"129. They firstly asked the Grand Chamber to correct the obscure and contradictory test the Chamber had used for deciding whether there had been discrimination. They noted that, while reaffirming the established principle that if a policy or general measure had disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory could not be ruled out even if it was not specifically aimed or directed at that group. The Chamber had nevertheless departed from the Court ’ s previous case-law ( see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Hoogendijk v. the Netherlands (dec.), no. 58 6 41/00, 6 January 2005; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005-VII ) by erroneously requiring the applicants to prove discriminatory intent on the part of the Czech authorities. In the applicants ’ submission, such a requirement was unrealistic and illogical as the question whether or not special schools were designed to segregate along ethnic lines was irrelevant since that was indisputably the effect they had in practice. The reality was that well-intentioned actors often engaged in discriminatory practices through ignorance, neglect or inertia.",
"130. The applicants observed in particular that in explaining why it had refused to shift the burden of proof in Nachova and Others ( cited above, § 157) the Court had been careful to distinguish between racially-motivated violent crime and non-violent acts of racial discrimination in, for example, employment or the provision of services. In their submission, racial discrimination in access to education fell precisely in the latter category of discriminatory acts which could be proved in the absence of intent. More recently, the Court had ruled in Zarb Adami v. Malta (no. 17209/02, §§ 75 ‑ 76, ECHR 2006- VIII ) that a difference in treatment did not need to be set forth in legislative text in order to breach Article 14 and that a “well-established practice” or “ de facto situation” could also give rise to discrimination. As, in the instant case, the applicants considered that they had indisputably succeeded in establishing the existence of a disproportionate impact, the burden of proof had to shift to the Government to prove that the applicants ’ ethnic origin had had no bearing on the impugned decisions and that sufficient safeguards against discrimination were in place.",
"131. In that connection, the applicants noted that in its General Policy Recommendation No. 7, ECRI had invited the States to prohibit both direct discrimination and indirect discrimination, with neither concept requiring proof of discriminatory intent. A clear majority of the member States of the Council of Europe had already expressly prohibited discrimination in sections of their national legislation without requiring proof of such intent and this was reflected in the judicial practice of those States. The applicants referred in this context to, inter alia, the decision of the House of Lords in the case of Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others (see paragraph 105 above) and to the jurisprudence of the Court of Justice of the European Communities. Lastly, they noted that indirect discrimination was also prohibited under international law, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination.",
"132. Accordingly, in view of the vital importance of Article 14 protection and the need to make it effective, the applicants considered that it would be helpful for the Court to clarify the rules it applied in such situations to ensure, inter alia, that the principle of non-discrimination was interpreted and applied consistently by the two European courts. For this reason, the applicants asked the Grand Chamber to give a clear ruling that intent was not necessary to prove discrimination under Article 14, except in cases – such as of racially motivated violence – where it was already an element of the underlying offence.",
"133. In the instant case, the applicants did not claim that the competent authorities had at the relevant time harboured invidiously racist attitudes towards Roma, or that they had intended to discriminate against Roma, or even that they had failed to take positive measures. All the applicants needed to prove – and, in their submission, had proved – was that the authorities had subjected the applicants to differential adverse treatment in comparison with similarly situated non-Roma, without objective and reasonable justification. The question of a common European standard that had been raised by the Government was, in the applicants ’ view, more of a political issue and the existence or otherwise of such a standard was of no relevance as the principle of equality of treatment was a binding rule of international law.",
"134. Similarly, the applicants asked the Grand Chamber to provide guidance concerning the kinds of proof, including but not limited to statistical evidence, which might be relevant to a claim of a violation of Article 14. They noted that the Chamber had discounted the overwhelming statistical evidence they had adduced, without checking whether or not it was accurate, despite the fact that it had been corroborated by independent specialised intergovernmental bodies (ECRI, the Committee on the Elimination of Racial Discrimination, and the Advisory Committee on the Framework Convention for the Protection of National Minorities ) and by the government ’ s own admission (see paragraphs 41 and 66 above). According to this data, although Roma represented only 5% of all primary- school pupils at the time the application was lodged, they made up more than 50% of the population of special schools. Whereas fewer than 2% of non-Roma pupils in Ostrava were assigned to special schools, over 50% of Roma children were sent to such schools. Overall, a Roma child was more than twenty-seven times more likely than a similarly situated non-Roma child to be assigned to a special school.",
"135. In the applicants ’ view, these figures strongly suggested that, whether through conscious design or reprehensible neglect, race or ethnicity had infected the process of school assignment to a substantial – perhaps determining – extent. The presumption that they, like other Roma children in the city of Ostrava, had been the victims of discrimination on the grounds of ethnic origin had never been rebutted. It was undisputed that as a result of their assignment to special schools the applicants had received a substantially inferior education as compared with non-Roma children and that this had effectively deprived them of the opportunity to pursue a secondary education other than in a vocational training centre.",
"136. In this context, they argued that both in Europe and beyond statistical data was often used in cases which, as here, concerned discriminatory effect, as sometimes it was the only means of proving indirect discrimination. Statistical data was accepted as a means of proof of discrimination by the bodies responsible for supervising the United Nations treaties and by the Court of Justice of the European Communities. Council Directive 2000/43/EC expressly provided that indirect discrimination could be established by any means “including on the basis of statistical evidence”.",
"137. With respect to the Convention institutions, the applicants noted that, in finding racial discrimination in East African Asians v. the United Kingdom (nos. 4403/70-4530/70, Commission ’ s report of 14 December 1973, Decisions and Reports 78-A, p. 5), the Commission took into account the surrounding circumstances including statistical data on the disproportionate effect the legislation had had on British citizens of Asian origin. Recently, the Court had indicated in its decision in Hoogendijk (cited above) that, while statistics alone were not sufficient to prove discrimination, they could – particularly where they were undisputed – amount to prima facie evidence requiring the Government to provide an objective explanation of the differential treatment. Further, in its judgment in Zarb Adami ( cited above ), the Court had relied, inter alia, on statistical evidence of disproportionate effect.",
"138. The applicants added that it would be helpful for the Grand Chamber to clarify the Court ’ s case-law by determining whether there was an objective and reasonable justification for the purposes of Article 14 for the difference in treatment in the present case and specifying the conclusions that should be drawn in the absence of a satisfactory explanation. Referring to, inter alia, the judgments in Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII ) and Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, § 140, 12 July 2005 ), they stated that where an applicant had established a difference in treatment the onus was on the respondent State to prove that it was justified. In the absence of a racially neutral explanation, it was legitimate to conclude that the difference in treatment was based on racial grounds. In the applicants ’ submission, neither an inadequate command of the Czech language, nor poverty nor a different socio-economic status could constitute an objective and reasonable justification in their case. They denied that the disproportionately large number of Roma children in special schools could be explained by the results of intellectual capacity tests or justified by parental consent (see also paragraphs 1 41 - 42 below).",
"139. In view of the importance of the fight against racial and ethnic discrimination that had constantly been reaffirmed by the Strasbourg institutions, the applicants considered that the Grand Chamber should state in clear terms that the States ’ “margin of appreciation” could not serve to justify segregation in education. The approach adopted by the Chamber, which left an unlimited margin of appreciation to the Czech State, was unjustified in view of the serious allegations of racial and ethnic discrimination in the instant case and was inconsistent with the Court ’ s case-law. The present case warranted all the more the Court ’ s attention in that it concerned one of the most important substantive rights, namely the right to education.",
"140. The applicants further argued that the Chamber had misinterpreted crucial evidence and drawn inappropriate conclusions on two decisive issues, namely parental consent and the reliability of the psychological tests.",
"141. There were no uniform rules at the material time governing the manner in which the tests used by the educational psychology centres were administered and the results interpreted, so that much had been left to the discretion of the psychologists and there had been considerable scope for racial prejudice and cultural insensitivity. Further, the tests which they and other Roma children had been forced to sit were scientifically flawed and educationally unsound. The documentary evidence showed that a number of the applicants had been placed in special schools for reasons other than intellectual deficiencies (such as absenteeism, bad behaviour, and even misconduct on the part of the parents). The Czech Government had themselves acknowledged the discriminatory effect of the tests (see paragraph 6 6 above). They had also admitted in their observations on the present case that one of the applicants had been placed in a special school despite possessing good verbal communication skills.",
"142. Nor, in the applicants ’ submission, could the discriminatory treatment to which they had been subjected be justified by their parents ’ consent to their placement in the special schools. Governments were legally bound to protect the higher interest of the child and in particular the equal right of all children to education. Neither parental conduct nor parental choice could deprive them of that right.",
"The credibility of the “consent” allegedly given by the parents of several of the applicants had been called into question by inconsistencies in the school records that raised doubts as to whether they had indeed agreed. In any event, even supposing that consent had been given by all the parents, it had no legal value as the parents concerned had never been properly informed of their right to withhold their consent, of alternatives to placement in a special school or of the risks and consequences of such a placement. The procedure was largely formal: the parents were given a pre-completed form and the results of the psychological tests, results they believed they had no right to contest. As to the alleged right subsequently to request a transfer to an ordinary school, the applicants pointed out that from their very first year at school they had received a substantially inferior education that made it impossible for them subsequently to meet the requirements of the ordinary schools.",
"Moreover, it was unrealistic to consider the issue of consent without taking into account the history of Roma segregation in education and the absence of adequate information on the choices available to Roma parents. Referring to the view that had been expressed by the Court (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A) that a waiver may be lawful for certain rights but not for others and that it must not run counter to any important public interest, the applicants submitted that there could be no waiver of the child ’ s right not to be racially discriminated against in education.",
"143. The instant case raised “a serious issue of general importance”, namely whether European governments were capable of coping with increasing racial and ethnic diversity and of protecting vulnerable minorities. In that connection, the most important issue was that of equality of opportunity in education as discrimination against Roma in that sphere persisted in all the member States of the Council of Europe. Putting an end to discrimination at school would enable Roma to enjoy equality of treatment generally.",
"144. The racial segregation of Roma children in Czech schools had not materially changed since the date the application was filed. The applicants ’ own futures and lack of prospects revealed the harm that their discriminatory placement in special schools had caused. Thus, in May 2006 eight of the applicants were continuing their education in a special school while a further six who had completed special school found themselves unemployed. Of the four applicants who had been allowed to attend ordinary primary school after passing the aptitude tests, two were still at school, one was unemployed and the fourth was enrolled in a vocational secondary school. The applicants considered that it was already clear that none of them would receive a general secondary- school education, still less a university education.",
"145. Finally, the applicants pointed out that a new Schools Act had been passed in late 2004, which had purported to end the special- school system. The new legislation thus acknowledged that the very existence of schools deemed “special” imposed a badge of inferiority on those placed there. In reality, however, the new law had not brought about changes in practice as it had merely altered the criteria on which educational programmes were based. Extensive research carried out by the European Roma Rights Centre in 2005 and 2006 showed that in many cases special schools had simply been renamed “remedial schools” or “practical schools” without any substantial change in the composition of their teaching staff or the content of their curriculum.",
"2. The Government",
"146. The Government stated that the case raised complex issues concerning the social problem of the position of Roma in contemporary society. Although the Roma ostensibly enjoyed the same rights as other citizens, in reality their prospects were limited by both objective and subjective factors. There could be no improvement in their situation without the involvement and commitment of all members of the Roma community. When they attempted to eliminate these inequalities, member States were confronted with numerous political, social, economic and technical problems which could not be confined to the question of respect for fundamental rights. It was for this reason that the courts, including the European Court of Human Rights, had to exercise a degree of restraint when examining measures adopted in this field and confine themselves to deciding whether or not the competent authorities had overstepped their margin of appreciation.",
"147. Referring to their previous written and oral observations, the Government reiterated that race, colour or association with a national minority had not played a determining role in the applicants ’ education. There was no specific evidence of any difference in treatment of the applicants on the basis of those grounds. The applicants ’ school files showed beyond doubt that their placement in special schools was not based on their ethnic origin, but on the results of psychological tests carried out at the educational psychology centres. Since the applicants had been placed in special schools on account of their specific educational needs resulting essentially from their intellectual capacity and since the criteria, the process by which the criteria were applied and the system of special schools were all racially neutral, as the Chamber had confirmed in its judgment, it was not possible to speak of overt or direct discrimination in the instant case.",
"148. The Government next turned to the applicants ’ argument that the instant case was one of indirect discrimination which, in some instances, could only be established with the aid of statistics. They contended that the case of Zarb Adami (cited above), in which the Court had relied extensively on statistical evidence submitted by the parties, was not comparable to the instant case. Firstly, Zarb Adami was far less complex. Secondly, the statistical disparities found in that case between the number of men and women called to perform jury service were the result of a decision by the State, whereas the statistics relied on by the applicants in the instant case reflected first and foremost the parents ’ wishes for their children to attend special school, not any act or omission on the part of the State. Had the parents not expressed such a wish ( by giving their consent) the children would not have been placed in a special school.",
"Further, the statistical information that had been submitted in the instant case by the applicants was not sufficiently conclusive as the data had been furnished by the head teachers of the schools and therefore only reflected their subjective opinions. There was no official information on the ethnic origin of the pupils. The Government further considered that the statistics had no informative value without an evaluation of the socio-cultural background of the Roma, their family situation and their attitude towards education. They pointed out in that connection that the Ostrava region had one of the largest Roma populations in the Czech Republic.",
"As to the comparative studies on countries from central and eastern Europe and beyond cited in the observations of the third-party interveners, the Government did not consider that there was any relevant link between those statistics and the substantive issues in the case to hand. In their submission, those studies tended to confirm that creating an education system optimised for Roma children was an extremely complex task.",
"149. Nevertheless, even assuming that the data submitted by the applicants were reliable and that the State could be considered responsible for the situation, that did not, in the Government ’ s submission, amount to indirect discrimination that was incompatible with the Convention. The impugned measure was consistent with the principle of non-discrimination as it pursued a legitimate aim, namely the adaptation of the education process to the capacity of children with specific educational needs. It was also objectively and reasonably justified.",
"150. On this latter point, the Government contested the applicants ’ claim that they had not submitted any satisfactory explanation regarding the large number of Roma in special schools. While admitting that the situation of the Roma with regard to education was not ideal, the Government considered that they had demonstrated that the special schools had not been established for the Roma community and that ethnic origin had not been a criterion for deciding on placements in special schools. They reiterated that special-school placements were only possible after prior individualised pedagogical and psychological testing. The testing process was a technical tool that was the subject of continuing scientific research and for that reason could only be carried out by qualified personnel. The courts did not possess the necessary qualifications and therefore had to exercise a degree of restraint in this field. As regards the professional standards referred to in the observations of the International Step by Step Association and others, the Government emphasised that these were not legal norms possessing force of law but, at most, non-binding recommendations or indications by specialists and that the failure to apply them could not, by definition, entail international legal responsibility.",
"151. The files of each of the applicants contained full details of the methods that had been used and the results of the testing. These had not been challenged at the time by any of the applicants. The applicants ’ allegations that the psychologists had followed a subjective approach appeared to be biased and not based on any evidence.",
"152. The Government again conceded that there might have been rare situations where the reason for the placement in a special school was on the borderline between learning difficulties and a socio-culturally disadvantaged environment. Among the eighteen cases, this had apparently happened in one case only, that of the ninth applicant. Otherwise, the pedagogical-psychological diagnostics and the testing at the educational psychology centres had proved learning difficulties in the case of all the applicants.",
"153. The educational psychology centres that had administered the tests had only made recommendations concerning the type of school in which the child should be placed. The essential, decisive factor was the wishes of the parents. In the instant case, the parents had been informed that their children ’ s placement in a special school depended on their consent and the consequences of such a decision had been explained to them. If the effect of their consent was not entirely clear, they could have appealed against the decision regarding placement and could at any time have required their child ’ s transfer to a different type of school. If, as they now alleged, their consent was not informed, they should have sought information from the competent authorities. The Government noted in this respect that Article 2 of Protocol No. 1 emphasised the primary role and responsibility of parents in the education of their children. The State could not intervene if there was nothing in the parents ’ conduct to indicate that they were unable or unwilling to decide on the most appropriate form of education for their children. Interference of that sort would contravene the principle that the State had to respect parents ’ wishes regarding education and teaching.",
"In the instant case, the Government noted that apart from appealing to the Constitutional Court and lodging an application with the European Court of Human Rights, the applicants ’ parents had on the whole done nothing to spare their children the alleged discriminatory treatment and had played a relatively passive role in their education.",
"154. The Government rejected the applicants ’ argument that their placement in special schools had prevented them from pursuing a secondary or higher education. Whether the applicants had finished their compulsory education before or after the entry into force of the new Schools Act (Law no. 561/2004), it had been open to them to pursue their secondary education, to take additional lessons to bring them up to the appropriate level or to seek career advice. However, none of the applicants had established that they had attempted to do so (albeit unsuccessfully) or that their (alleged) difficulties were due to a more limited education as a result of their earlier placement in a special school. On the contrary, several of the applicants had decided not to pursue their studies or had abandoned them. The Government were firmly convinced that the applicants had deprived themselves of the possibility of continuing their studies through a lack of interest. Their situation, which in many cases was unfavourable, had stemmed mainly from their own lack of interest, and was not something for which the State could be held responsible.",
"155. The Government conceded that the national authorities had to take all reasonable steps to ensure that measures did not produce disproportionate effects or, if that was not feasible, to mitigate and compensate for such effects. However, neither the Convention nor any other international instrument contained a general definition of the State ’ s positive obligations concerning the education of Roma pupils or, more generally, of children from national or ethnic minorities. The Government noted in this connection that when determining the State ’ s positive obligations the Court sometimes referred to developments in the legislation of the Contracting Parties. However, they said that no European standard or consensus currently existed regarding the criteria to be used to determine whether children should be placed in special schools or how children with special learning needs should be educated and the special school was one of the possible and acceptable solutions to the problem.",
"156. Moreover, the positive obligations under Article 14 of the Convention could not be construed as an obligation to take affirmative action. That had to remain an option. It was not possible to infer from Article 14 a general obligation on the part of the State actively to compensate for all the disabilities which different sections of the population suffered from.",
"157. In any event, since special schools had to be regarded as an alternative, but not inferior, form of education, the Government submitted that they had in the instant case adopted reasonable measures to compensate for the disabilities of the applicants, who required a special education as a result of their individual situation, and that they had not overstepped the margin of appreciation which the Convention afforded the States in the education sphere. They observed that the State had allocated twice the level of resources to special schools as to ordinary schools and that the domestic authorities had made considerable efforts to deal with the complex issue of the education of Roma children.",
"158. The Government went on to provide information on the applicants ’ current situation obtained from the files of both the school and the Ostrava Job Centre ( where those applicants who were unemployed had signed on ). As a preliminary, they noted that the Ostrava region was afflicted by a high rate of unemployment and that, in general, young people who had received only a primary education had difficulties in finding work. While it was possible to obtain a qualification and career counselling from the State, the active participation of the job applicant was essential.",
"In concrete terms, two applicants were currently in their final year at primary school. Seven had begun vocational training in a secondary school in September 2006. Four had started but later abandoned their secondary-school studies, the majority through a lack of interest, and had instead signed on at the job centre. Lastly, five of the applicants had not sought to pursue their studies at secondary-school level but had registered at the job centre. Those applicants who had registered at a job centre had not cooperated with it or shown any interest in the offers of training or employment that had been made, with the result that some of them had already been struck off the job-applicants register (in some instances repeatedly).",
"159. Lastly, the Government rejected the applicants ’ claim that nothing had been changed by the introduction of the Schools Act (Law no. 561/2004). The Act unified the previously existing types of primary school and standardised the educational programmes. It did not provide for a separate, independent system of specialised schools, with the exception of schools for pupils with serious mental disorders, autism or combined mental and physical defects. Pupils with disabilities were individually integrated, wherever possible and desirable, into conventional schools. However, schools were authorised to set up separate classes with educational techniques and methods adjusted to their needs. The former “special schools” could continue to function as separate institutions, but were now “primary schools” providing education under a modified educational programme for primary education. Schools at which socially disadvantaged pupils were educated often made use of their right to establish assistant teacher ’ s posts and preparatory classes designed to improve the children ’ s communication skills and command of the Czech language. Teaching assistants from the Roma community often served as a link between the school, family, and, in some instances, other experts and helped to integrate pupils into the education system. The region where the applicants lived favoured integrating Roma pupils in classes drawn from the majority population.",
"160. In their concluding submissions, the Government asked the Court carefully to examine the issue of the applicants ’ access to education in each individual case, though without losing sight of the overall context, and to hold that there had been no violation of the Convention.",
"3. The third-party interveners",
"(a) Interights and Human Rights Watch",
"161. Interights and Human Rights Watch stated that it was essential that Article 14 of the Convention should afford effective protection against indirect discrimination, a concept which the Court had not yet had many occasions to consider. They submitted that aspects of the Chamber ’ s reasoning were out of step with recent developments in cases such as Timishev (cited above), Zarb Adami (cited above) and Hoogendijk (cited above). The Grand Chamber needed to consolidate a purposive interpretation of Article 14 and to bring the Court ’ s jurisprudence on indirect discrimination in line with existing international standards.",
"162. Interights and Human Rights Watch noted that the Court itself had confirmed in Zarb Adami that discrimination was not always direct or explicit and that a policy or general measure could result in indirect discrimination. It had also accepted that intent was not required in cases of indirect discrimination ( see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001). In their submission, it was sufficient in the case of indirect discrimination that the practice or policy resulted in a disproportionate adverse effect on a particular group.",
"163. As to proof of indirect discrimination, it was widely accepted in Europe and internationally and also by the Court (see Timishev, cited above, § 57, and Hoogendijk, cited above) that the burden of proof had to shift once a prima facie case of discrimination had been established. In cases of indirect discrimination, where the applicant had demonstrated that significantly more people of a particular category were placed at a disadvantage by a given policy or practice, a presumption of discrimination arose. The burden then shifted to the State to reject the basis for the prima facie case, or to provide a justification for it.",
"164. It was therefore critical for the Court to engage with the type of evidence that might be produced in order to shift the burden of proof. Interights and Human Rights Watch submitted on this point that the Court ’ s position with regard to statistical evidence, as set out in Hugh Jordan (cited above, § 154), was at variance with international and comparative practice. In Council directives and international instruments, statistics were the key method of proving indirect discrimination. Where measures were neutral on their face, statistics sometimes proved the only effective means of identifying their varying impact on different segments of society. Obviously, courts had to assess the credibility, strength and relevance of the statistics to the case at hand, requiring that they be tied to the applicant ’ s allegations in concrete ways.",
"If, however, the Court were to maintain the position that statistics alone were not sufficient to disclose a discriminatory practice, Interights and Human Rights Watch submitted that the general social context should be taken into account, as it provided valuable insight into the extent to which the effects of the measure on the applicants were disproportionate.",
"(b) Minority Rights Group International, the European Network Against Racism and the European Roma Information Office",
"165. The Minority Rights Group International, the European Network Against Racism and the European Roma Information Office submitted that the wrongful assignment of Roma children to special schools for the mentally disabled was the most obvious and odious form of discrimination against the Roma. Children in such special schools followed a simplified curriculum considered appropriate for their lower level of intellectual development. Thus, for example, in the Czech Republic, children in special schools were not expected to know the Czech alphabet or numbers up to ten until the third or fourth year of school, while their counterparts in ordinary schools acquired that knowledge in the first year.",
"166. This practice had received considerable attention, both at the European level and within the human rights bodies of the United Nations, which had expressed their concern in various reports as to the over-representation of Roma children in special schools, the adequacy of the tests employed and the quality of the alleged parental consent. All these bodies had found that no objective and reasonable justification could legitimise the disadvantage faced by Roma children in the field of education. The degree of consistency among the institutions and quasi-judicial bodies was persuasive in confirming the existence of widespread discrimination against Roma children.",
"167. The interveners added that whatever the merits of separate education for children with genuine mental disabilities, the decision to place Roma children in special schools was in the majority of cases not based on any actual mental disability but rather on language and cultural differences which were not taken into account in the testing process. In order to fulfil their obligation to secure equal treatment for Roma in the exercise of their right to education, the first requirement of States was to amend the testing process so that it was not racially prejudiced against Roma and to take positive measures in the area of language training and social-skills training.",
"(c) International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association",
"168. The International Step by Step Association, the Roma Education Fund and the European Early Childhood Education Research Association sought to demonstrate that the assessment used to place Roma children in special schools in the Ostrava region disregarded the numerous effective and appropriate indicators that were well known by the mid-1990s (see paragraph 4 4 above). In their submission, the assessment had not taken into account the language and culture of the children, their prior learning experiences or their unfamiliarity with the demands of the testing situation. Single rather than multiple sources of evidence had been used. Testing had been done in one sitting, not over time. Evidence had not been obtained in realistic or authentic settings where children could demonstrate their learning. Undue emphasis had been placed on individually administered, standardised tests normed on other populations.",
"169. Referring to various studies that had been carried out (see paragraph 4 4 above), the interveners noted that minority children and those from vulnerable families were over-represented in special education in central and eastern Europe. This resulted from an array of factors, including unconscious racial bias on the part of school authorities, large resource inequalities, unjustifiable reliance on IQ and other evaluation tools, educators ’ inappropriate responses to the pressures of “high stakes” testing and power differentials between minority parents and school officials. School placement through psychological testing often reflected racial biases in the society concerned.",
"170. The Czech Republic was notable for its placement of children in segregated settings because of “social disadvantage”. According to a comparison of data on fifteen countries collected by the Organisation for Economic Co-operation and Development in 1999 (see paragraph 1 8 in fine above), the Czech Republic ranked third in placing pupils with learning difficulties in special- school settings. Of the eight countries that provided data on the placement of pupils as a result of social factors, the Czech Republic was the only one to have recourse to special schools; the other countries almost exclusively used ordinary schools for educating such pupils.",
"171. Further, the practice of referring children labelled as being of low ability to special schools at an early age (educational tracking) frequently led, whether intentionally or not, to racial segregation and had particularly negative effects on the level of education of disadvantaged children. This had long-term detrimental consequences for both them and society, including premature exclusion from the education system with the resulting loss of job opportunities for those concerned.",
"(d) International Federation for Human Rights ( Fédération internationale des ligues des droits de l ’ Homme – FIDH)",
"172. The FIDH considered that the Chamber had unjustifiably placed significant weight in its judgment on the consent the applicants ’ parents had allegedly given to the situation forming the subject of their complaint to the Court. It noted that under the Court ’ s case-law there were situations in which the waiver of a right was not considered capable of exempting the State from its obligation to guarantee to every person within its jurisdiction the rights and freedoms laid down in the Convention. That applied, in particular, where the waiver conflicted with an important public interest, or was not explicit or unequivocal. Furthermore, in order to be capable of justifying a restriction of the right or freedom of the individual, the waiver of that guarantee by the person concerned had to take place in circumstances from which it could be concluded that he was fully aware of the consequences, in particular the legal consequences, of his choice. In the case of R. v. Borden ([1994] 3 RCS 145, p. 162), the Supreme Court of Canada had developed the following principle on that precise point: “[i]n order for a waiver of the right ... to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. ”",
"173. The question therefore arose as to whether, in the light of the nature of the principle of equality of treatment, and of the link between the prohibition of racial discrimination and the wider concept of human dignity, waiver of the right to protection against discrimination ought not to be precluded altogether. In the instant case, the consent obtained from the applicants ’ parents was binding not solely on the applicants but on all the children of the Roma community. It was perfectly possible – indeed, in the FIDH ’ s submission, probable – that all parents of Roma children would prefer an integrated education for their children, but that, being uncertain as regards the choice that would be made by other parents in that situation, they preferred the “security” offered by special education, which was followed by the vast majority of Roma children. In a context characterised by a history of discrimination against the Roma, the choice available to the parents of Roma children was between (a) placing their children in schools where the authorities were reluctant to admit them and where they feared being the subject of various forms of harassment and of manifestations of hostility on the part of their fellow pupils and of teachers, or (b) placing them in special schools where Roma children were in a large majority and where, consequently, they would not have to fear the manifestation of such prejudices. In reality, the applicants ’ parents had chosen what they saw as being the lesser of two evils, in the absence of any real possibility of receiving an integrated education which would unreservedly welcome Roma. The disproportion between the two alternatives was such that the applicants ’ parents had been obliged to make the choice for which the Government now sought to hold them responsible.",
"174. For the reasons set out above, the FIDH considered that in the circumstances of the instant case, the alleged waiver by the applicants ’ parents of the right for their children to receive an education in normal schools could not justify exempting the Czech Republic from its obligations under the Convention.",
"C. The Court ’ s assessment",
"1. Recapitulation of the main principles",
"175. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005 ). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article ( see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium ( merits), 23 July 1968, p. 34, § 10, Series A no. 6; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 5 1, ECHR 2006 ‑ VI ). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group ( see Hugh Jordan, cited above, and Hoogendijk, cited above ), and that discrimination potentially contrary to the Convention may result from a de facto situation ( see Zarb Adami, cited above ).",
"176. Discrimination on account of, inter alia, a person ’ s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( see Nachova, cited above, and Timishev, cited above ). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person ’ s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( see Timishev, cited above, § 58).",
"177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III, and Timishev, cited above, § 57 ).",
"178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ( cited above, § 147) that in proceedings before it there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.",
"179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation – see Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V). In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002 ‑ IV ). In Nachova and Others ( cited above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services.",
"180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory ( see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation ( see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations.",
"Thus, in Hoogendijk the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”",
"181. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 ‑ I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004).",
"In Chapman (cited above, §§ 93-94), the Court also observed that there could be said to be an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.",
"2. Application of the above- mentioned principles to the instant case",
"182. The Court notes that as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly ’ s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 5 6 above, and point 4 of its Recommendation no. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 58 above ). As the Court has noted in previous cases, they therefore require special protection (see paragraph 181 above). As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies (see paragraphs 54 - 61 above), this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance.",
"183. The applicants ’ allegation in the present case is not that they were in a different situation from non-Roma children that called for different treatment or that the respondent State had failed to take affirmative action to correct factual inequalities or differences between them ( see Thlimmenos, cited above, § 44, and Stec and Others, cited above, § 51). In their submission, all that has to be established is that, without objective and reasonable justification, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination.",
"184. The Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group ( see Hugh Jordan, cited above, § 154, and Hoogendijk, cited above). In accordance with, for instance, Council Directives 97/80/EC and 2000/43/EC (see paragraphs 82 - 84 above) and the definition provided by ECRI (see paragraph 60 above), such a situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent.",
"(a) Whether a presumption of indirect discrimination arises in the instant case",
"185. It was common ground that the impugned difference in treatment did not result from the wording of the statutory provisions on placements in special schools in force at the material time. Accordingly, the issue in the instant case is whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children – including the applicants – being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage.",
"186. As mentioned above, the Court has noted in previous cases that applicants may have difficulty in proving discriminatory treatment ( Nachova and Others, cited above, §§ 147 and 157). In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination.",
"187. On this point, the Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that persons who consider themselves wronged because the principle of equal treatment has not been applied to them may establish before a domestic authority by any means, including on the basis of statistical evidence, facts from which it may be presumed that there has been discrimination (see paragraphs 82 - 83 above). The recent case-law of the Court of Justice of the European Communities (see paragraphs 88 - 89 above) shows that it permits claimants to rely on statistical evidence and the national courts to take such evidence into account where it is valid and significant.",
"The Grand Chamber further notes the information furnished by the third-party interveners that the courts of many countries and the supervisory bodies of the United Nations treaties habitually accept statistics as evidence of indirect discrimination in order to facilitate the victims ’ task of adducing prima facie evidence.",
"The Court also recognised the importance of official statistics in the above- mentioned cases of Hoogendijk and Zarb Adami and has shown that it is prepared to accept and take into consideration various types of evidence ( see Nachova and Others, cited above, § 147).",
"188. In these circumstances, the Court considers that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence.",
"189. Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, cited above, § 157). Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case ( ibid., § 147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof.",
"190. In the present case, the statistical data submitted by the applicants were obtained from questionnaires that were sent out to the head teachers of special and primary schools in the town of Ostrava in 1999. They indicate that at the time 56% of all pupils placed in special schools in Ostrava were Roma. Conversely, Roma represented only 2.26% of the total number of pupils attending primary school in Ostrava. Further, whereas only 1.8% of non-Roma pupils were placed in special schools, the proportion of Roma pupils in Ostrava assigned to special schools was 50.3%. According to the Government, these figures are not sufficiently conclusive as they merely reflect the subjective opinions of the head teachers. The Government also noted that no official information on the ethnic origin of the pupils existed and that the Ostrava region had one of the largest Roma populations.",
"191. The Grand Chamber observes that these figures are not disputed by the Government and that they have not produced any alternative statistical evidence. In view of their comment that no official information on the ethnic origin of the pupils exists, the Court accepts that the statistics submitted by the applicants may not be entirely reliable. It nevertheless considers that these figures reveal a dominant trend that has been confirmed both by the respondent State and the independent supervisory bodies which have looked into the question.",
"192. In their reports submitted in accordance with Article 25 § 1 of the Framework Convention for the Protection of National Minorities, the Czech authorities accepted that in 1999 Roma pupils made up between 80% and 90% of the total number of pupils in some special schools (see paragraph 66 above) and that in 2004 “large numbers” of Roma children were still being placed in special schools (see paragraph 67 above). The Advisory Committee on the Framework Convention observed in its report of 26 October 2005 that according to unofficial estimates Roma accounted for up to 70% of pupils enrolled in special schools. According to the report published by ECRI in 2000, Roma children were “ vastly over - represented” in special schools. The Committee on the Elimination of Racial Discrimination noted in its concluding observations of 30 March 1998 that a disproportionately large number of Roma children were placed in special schools (see paragraph 99 above). Lastly, according to the figures supplied by the European Monitoring Centre on Racism and Xenophobia, more than half of Roma children in the Czech Republic attended special school.",
"193. In the Court ’ s view, the latter figures, which do not relate solely to the Ostrava region and therefore provide a more general picture, show that, even if the exact percentage of Roma children in special schools at the material time remains difficult to establish, their number was disproportionately high. Moreover, Roma pupils formed a majority of the pupils in special schools. Despite being couched in neutral terms, the relevant statutory provisions therefore had considerably more impact in practice on Roma children than on non-Roma children and resulted in statistically disproportionate numbers of placements of the former in special schools.",
"194. Where it has been shown that legislation produces such a discriminatory effect, the Grand Chamber considers that, as with cases concerning employment or the provision of services (see, mutatis mutandis, Nachova and Others, cited above, § 157), it is not necessary in cases in the educational sphere to prove any discriminatory intent on the part of the relevant authorities (see paragraph 184 above).",
"195. In these circumstances, the evidence submitted by the applicants can be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination. The burden of proof must therefore shift to the Government, which must show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin.",
"(b) Objective and reasonable justification",
"196. The Court reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I, and Stec and Others, cited above, § 51). Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible.",
"197. In the instant case, the Government sought to explain the difference in treatment between Roma children and non-Roma children by the need to adapt the education system to the capacity of children with special needs. In the Government ’ s submission, the applicants were placed in special schools on account of their specific educational needs, essentially as a result of their low intellectual capacity measured with the aid of psychological tests in educational psychology centres. After the centres had made their recommendations regarding the type of school in which the applicants should be placed, the final decision had lain with the applicants ’ parents and they had consented to the placements. The argument that the applicants were placed in special schools on account of their ethnic origin was therefore unsustainable.",
"For their part, the applicants strenuously contested the suggestion that the disproportionately high number of Roma children in special schools could be explained by the results of the intellectual capacity tests or be justified by parental consent.",
"198. The Court accepts that the Government ’ s decision to retain the special - school system was motivated by the desire to find a solution for children with special educational needs. However, it shares the disquiet of the other Council of Europe institutions who have expressed concerns about the more basic curriculum followed in these schools and, in particular, the segregation the system causes.",
"199. The Grand Chamber observes, further, that the tests used to assess the children ’ s learning abilities or difficulties have given rise to controversy and continue to be the subject of scientific debate and research. While accepting that it is not its role to judge the validity of such tests, various factors in the instant case nevertheless lead the Grand Chamber to conclude that the results of the tests carried out at the material time were not capable of constituting objective and reasonable justification for the purposes of Article 14 of the Convention.",
"200. In the first place, it was common ground that all the children who were examined sat the same tests, irrespective of their ethnic origin. The Czech authorities themselves acknowledged in 1999 that “ Romany children with average or above-average intellect” were often placed in such schools on the basis of the results of psychological tests and that the tests were conceived for the majority population and did not take Roma specifics into consideration (see paragraph 66 above). As a result, they had revised the tests and methods used with a view to ensuring that they “were not misused to the detriment of Roma children” (see paragraph 72 above).",
"In addition, various independent bodies have expressed doubts over the adequacy of the tests. Thus, the Advisory Committee on the Framework Convention for the Protection of National Minorities observed that children who were not mentally handicapped were frequently placed in these schools “[owing] to real or perceived language and cultural differences between Roma and the majority”. It also stressed the need for the tests to be “consistent, objective and comprehensive” (see paragraph 68 above). ECRI noted that the channelling of Roma children to special schools for those with mental retardation was reportedly often “quasi-automatic” and needed to be examined to ensure that any testing used was “fair” and that the true abilities of each child were “properly evaluated” (see paragraphs 63 - 64 above). The Council of Europe Commissioner for Human Rights noted that Roma children were frequently placed in classes for children with special needs “without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin” (see paragraph 77 above).",
"Lastly, in the submission of some of the third-party interveners, placements following the results of the psychological tests reflected the racial prejudices of the society concerned.",
"201. The Court considers that, at the very least, there is a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In these circumstances, the tests in question cannot serve as justification for the impugned difference in treatment.",
"202. As regards parental consent, the Court notes the Government ’ s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court ’ s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ( see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227) and without constraint ( see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35).",
"203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. The Government themselves admitted that consent in this instance had been given by means of a signature on a pre-completed form that contained no information on the available alternatives or the differences between the special-school curriculum and the curriculum followed in other schools. Nor do the domestic authorities appear to have taken any additional measures to ensure that the Roma parents received all the information they needed to make an informed decision or were aware of the consequences that giving their consent would have for their children ’ s futures. It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children ’ s social and cultural differences and in which their children risked isolation and ostracism, and special schools where the majority of the pupils were Roma.",
"204. In view of the fundamental importance of the prohibition of racial discrimination ( see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest ( see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII ).",
"(c) Conclusion",
"205. As is apparent from the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe, the Czech Republic is not alone in having encountered difficulties in providing schooling for Roma children : other European States have had similar difficulties. The Court is gratified to note that, unlike some countries, the Czech Republic has sought to tackle the problem and acknowledges that, in its attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, it has had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and a degree of hostility on the part of the parents of non-Roma children. As the Chamber noted in its admissibility decision in the instant case, the choice between a single school for everyone, highly specialised structures and unified structures with specialised sections is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule ( see Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996-VI).",
"206. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation ( see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996 ‑ IV, and Connors, cited above, § 83 ).",
"207. The facts of the instant case indicate that the schooling arrangements for Roma children were not attended by safeguards (see paragraph 28 above) that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis mutandis, Buckley, cited above, § 76, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider population. As a result, they received an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population. Indeed, the Government have implicitly admitted that job opportunities are more limited for pupils from special schools.",
"208. In these circumstances and while recognising the efforts made by the Czech authorities to ensure that Roma children receive schooling, the Court is not satisfied that the difference in treatment between Roma children and non-Roma children was objectively and reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. In that connection, it notes with interest that the new legislation has abolished special schools and provides for children with special educational needs, including socially disadvantaged children, to be educated in ordinary schools.",
"209. Lastly, since it has been established that the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases.",
"210. Consequently, there has been a violation in the instant case of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 as regards each of the applicants.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"211. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"212. The applicants did not allege any pecuniary damage.",
"213. They claimed 22,000 euros (EUR) each (making a total of EUR 396,000) for the non-pecuniary damage they had sustained, including educational, psychological and emotional harm and compensation for the anxiety, frustration and humiliation they had suffered as a result of their discriminatory placement in special schools. They stressed that the effects of this violation were serious and ongoing and affected all areas of their lives.",
"214. Further, referring to the judgments in Broniowski v. Poland ([GC], no. 31443/96, § 189, ECHR 2004 ‑ V) and Hutten-Czapska v. Poland ([GC], no. 35014/97, §§ 235-37, ECHR 2006 ‑ VIII ), the applicants said that the violation of their rights “was neither prompted by an isolated incident nor attributable to the particular turn of events in [their] case, but was rather the consequence of administrative and regulatory conduct on the part of the authorities towards an identifiable class of citizens”. Accordingly, in their submission, general measures had to be taken at the national level either to remove any hindrance to the implementation of the right of the numerous persons affected by the situation or to provide equivalent redress.",
"215. The Government submitted, with particular regard to the psychological and educational damage, that it related to the complaints under Article 3 of the Convention and Article 2 of Protocol No. 1 taken individually, which had been declared inadmissible by the Court in its decision of 1 March 2005. In their submission, there was therefore no causal link between any violation of the Convention and the alleged non-pecuniary damage. They further contended that the sum claimed by the applicants was excessive and that any finding of a violation would constitute sufficient just satisfaction.",
"216. The Court reiterates, firstly, that by virtue of Article 46 of the Convention the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. However, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment ( see Broniowski, cited above, § 192, and Čonka v. Belgium, no. 51564/99, § 89, ECHR 2002 ‑ I ). The Court notes in this connection that the legislation impugned in the instant case has been repealed and that the Committee of Ministers recently made recommendations to the member States on the education of Roma/Gypsy children in Europe (see paragraphs 5 4 - 5 5 above). Consequently, it does not consider it appropriate to reserve the question.",
"217. The Court cannot speculate on what the outcome of the situation complained of by the applicants would have been had they not been placed in special schools. It is clear, however, that they have sustained non-pecuniary damage – in particular as a result of the humiliation and frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress. However, the amounts claimed by the applicants are excessive. Ruling on an equitable basis, the Court assesses the non-pecuniary damage sustained by each of the applicants at EUR 4,000.",
"B. Costs and expenses",
"218. The applicants have not amended the initial claim they made before the Chamber. The costs and expenses do not, therefore, include those incurred in the proceedings before the Grand Chamber.",
"The Court notes that the total amount claimed in the request signed by all the applicants ’ representatives was EUR 10 ,737, comprising EUR 2,550 ( 1,750 pounds sterling (GBP) ) for the fees invoiced by Lord Lester of Herne Hill, QC, and EUR 8,187 for the costs incurred by Mr D. Strupek in the domestic proceedings and those before the Chamber. However, the bill of costs drawn up by Lord Lester, enclosed with the claim for just satisfaction, put his fees at GBP 11,750 (approximately EUR 17,000), including GBP 1,750 in value- added tax ( VAT ), for 45 hours of legal work. The applicants ’ other representatives, Mr J. Goldston and the European Centre for Roma Rights, have not sought the reimbursement of their costs.",
"219. The Government noted that, apart from a detailed list of the legal services he had provided, Mr Strupek had not submitted any invoice to prove that the alleged costs and expenses had in fact been paid to him by the applicants. They did not comment on the discrepancy between the claim for just satisfaction as formulated by the applicants and the fee note submitted by Lord Lester. The Government further pointed out that only part of the application had been declared admissible and continued to be the subject of examination by the Court. They therefore submitted that the applicants should not be awarded more than a reasonable portion (not exceeding EUR 3,000) of the costs and expenses claimed.",
"220. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). In the present case, this is solely the violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. The Court notes that Lord Lester has submitted details of his professional fees, which were invoiced to the European Centre for Roma Rights. Mr Strupek has produced a breakdown of the 172 hours of legal services he rendered at an hourly rate of EUR 40, to which has to be added VAT at the rate of 19%.",
"Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10 ,000 for costs and expenses.",
"C. Default interest",
"221. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
33 | Oršuš and Others v. Croatia | 16 March 2010 (Grand Chamber) | This case concerned fifteen Croatians national of Roma origin who complained that they had been victims of racial discrimination during their school years in that they had been segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage. | Even though the present case differed from D.H. and Others v. the Czech Republic (see above) in that it had not been a general policy in both schools to automatically place Roma pupils in separate classes, it was common ground that a number of European States encountered serious difficulties in providing adequate schooling for Roma children. In the instant case, the Court observed that only Roma children had been placed in the special classes in the schools concerned. The Croatian Government attributed the separation to the pupils’ lack of proficiency in Croatian; however, the tests determining their placement in such classes did not focus specifically on language skills, the educational programme subsequently followed did not target language problems and the children’s progress was not clearly monitored. The placement of the applicants in Roma-only classes had therefore been unjustified, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention. Others v. Greece | Children’s rights | Education | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the appendix.",
"10. During their education, the applicants at times attended separate classes, comprising only Roma pupils, at a primary school in the village of Podturen for nine applicants ( the second to tenth applicants) and at a primary school in the village of Macinec, in Međimurje County, for five applicants ( the eleventh to fifteenth applicants ). In Croatia, primary education consists of eight grades and children are obliged to attend school from the age of seven to fifteen. The first four grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects. The fifth to eighth grades are upper grades in which, in addition to a class teacher assigned to each class, different teachers teach different subjects. The curriculum taught in any primary school class, including the Roma-only classes which the applicants attended, may be reduced by up to 30% in comparison to the regular, full curriculum.",
"A. General overview of the two primary schools in question",
"1. Podturen Primary School",
"11. The proportion of Roma children in the lower grades (from the first to the fourth grade) varies from 33 % to 36%. The total number of pupils in Podturen Primary School in 2001 was 463, 47 of whom were Roma. There was one Roma-only class, with 17 pupils, while the remaining 30 Roma pupils attended mixed classes.",
"12. In 2001 a pre-school programme called “Little School” ( Mala škola ) was introduced in the Lončarevo settlement in Podturen. It included about twenty Roma children and was designed as a preparatory programme for primary school. Three educators were involved, who had previously received special training. The programme ran from 11 June to 15 August 2001. This programme has been provided on a permanent basis since 1 December 2003. It usually includes about twenty Roma children aged from 3 to 7. The programme is carried out by an educator and a Roma assistant in cooperation with Podturen Primary School. An evaluation test is carried out at the end of the programme.",
"13. In December 2002 the Ministry of Education and Sports adopted a decision introducing Roma assistants in schools with Roma pupils from the first to fourth grades. In Podturen Primary School, there was already a Roma assistant who had worked there since September 2002. A statement made by one such assistant, Mr K.B., on 13 January 2009 reads:",
"“I started work at Podturen Primary School in September 2002. At that time there were two classes in the fourth grade. Class four ( b) had Roma pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching. I contemplated leaving after only two months. At the request of teachers, I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school. Some parents would come, but often not, and I had to go and ask them again. A lot of time was needed to explain Croatian words to the pupils because some of them continued to speak Romani and the teachers could not understand them. I told the pupils that they should attend school regularly. Some pupils would just leave classes or miss a whole day. I helped pupils with homework after school. I helped the school authorities to compile the exact list of pupils in the first grade. I no longer work at the school.”",
"14. Since the school year 2003/04 there have been no Roma-only classes in Podturen Primary School.",
"2. Macinec Primary School",
"15. The proportion of Roma children in the lower grades varies from 57 % to 75%. Roma-only classes are formed in the lower grades and only exceptionally in the higher grades. All classes in the two final grades (seventh and eighth) are mixed. The total number of pupils in Macinec Primary School in 2001 was 445, 194 of whom were Roma. There were 6 Roma-only classes, with 142 pupils in all, while the remaining 52 Roma pupils attended mixed classes.",
"16. Since 2003 the participation of Roma assistants has been implemented.",
"17. A “Little School” pre-school programme was introduced in 2006.",
"B. Individual circumstances of each applicant",
"18. The applicants submitted that they had been told that they had to leave school at the age of 15. Furthermore, the applicants submitted statistics showing that in the school year 2006/07 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population in Međimurje County. The drop-out rate of Roma pupils without completing primary school was 84%, which was 9.3 times higher than for the general population. In the school year 2005/06, 73 Roma children were enrolled in the first grade and 5 in the eighth.",
"19. The following information concerning each individual applicant is taken from official school records.",
"1. Podturen Primary School",
"(a) The first applicant",
"20. By a letter of 22 February 2007, the first applicant expressed the wish to withdraw his application. Thus in the Chamber judgment of 17 July 2008 the Court decided to discontinue the examination of the application in so far as it concerned the first applicant.",
"(b) The second applicant",
"21. The second applicant, Mirjana Oršuš, was enrolled in the first grade of primary school in the school year 1997/98. She attended a mixed class that year and the following year, but in those two years she failed to go up a grade. In the school years 1999/2000 to 2002/03 she attended a Roma-only class. In 2003/04 to 2005/06 she attended a mixed class. In 2005/06 she took the sixth grade for the second time and failed. She failed the first and the sixth grades twice. Out of seventeen regular parent-teacher meetings organised during her primary schooling, her parents attended three.",
"22. She was provided with additional classes in Croatian in the fourth grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group (that is to say a number of different activities organised for the same group of children), organised by the school. After reaching the age of 15, she left school in August 2006. Her school report shows that during her schooling she missed 100 classes without justification.",
"(c) The third applicant",
"23. The third applicant, Gordan Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and passed the first grade. That year and the following year he attended a Roma-only class. In 1998/99 and 1999/2000 he attended a mixed class and after that a Roma-only class for the remainder of his schooling. In 2002/03 he passed the fourth grade. He failed the second grade three times. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two.",
"24. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15 he left school in September 2003. His school report shows that during his schooling he missed 154 classes without justification.",
"25. Later, he enrolled in evening classes in the People ’ s Open College in Čakovec, where he completed his primary education.",
"(d) The fourth applicant",
"26. The fourth applicant, Dejan Balog, was enrolled in the first grade of primary school in the school year 1996/97. During the first and second years he attended a Roma-only class and the following two years a mixed class. In 2000/01 to 2002/03 he attended a Roma-only class. In 2003/04 to 2005/06 he attended a mixed class. In 2005/06 he took the fifth grade for the second time and failed. He failed the second grade three times, the fourth grade once and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended two.",
"27. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 881 classes without justification.",
"28. Later, he enrolled in fifth-grade evening classes, but did not attend.",
"(e) The fifth applicant",
"29. The fifth applicant, Siniša Balog, was enrolled in the first grade of primary school in 1999/ 20 00 and passed the first grade. In 1999/2000 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. In 2006/07 he took the fifth grade for the third time and failed. He failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one.",
"30. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in 2008. His school report shows that during his schooling he missed 1,304 classes without justification. In October 2006 the school authorities wrote to the competent social welfare centre informing them of the applicant ’ s poor school attendance.",
"(f) The sixth applicant",
"31. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of primary school in the school year 1996/97 and attended a Roma-only class. The following two years she attended a mixed class. In 1999/2000 to 2002/03 she attended a Roma-only class and passed the fourth grade, after which she attended a mixed class. From February 2003 she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board ( Povjerenstvo za utvrđivanje psihofizičkog stanja djeteta ) had established that she suffered from developmental difficulties. In 2004/05 she took the fifth grade for the second time and failed. She failed the first grade three times and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three.",
"32. She was provided with additional classes in Croatian in her third grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 297 classes without justification.",
"33. Later, she enrolled in fifth-grade evening classes, but did not attend.",
"(g) The seventh applicant",
"34. The seventh applicant, Josip Oršuš, was enrolled in the first grade of primary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/03, after which he attended a mixed class. From May 2002 he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board ( Komisija za utvrđivanje psihofizičke sposobnosti djece ) had established that he suffered from developmental difficulties. In 2007/08 he took the sixth grade for the second time and failed. He failed the fifth and sixth grades twice. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two.",
"35. He was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in February 2008. His school report shows that during his schooling he missed 574 classes without justification.",
"(h) The eighth applicant",
"36. The eighth applicant, Biljana Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and in her first three school years attended a Roma-only class, after which she attended a mixed class for two years. On 28 December 2000 the Međimurje County State Administration Office for Schooling, Culture, Information, Sport and Technical Culture ( Ured za prosvjetu, kulturu, informiranje, šport i tehničku kulturu Međimurske Županije ) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Aptitude Assessment Board – had established that she suffered from poor intellectual capacity, concentration difficulties and socio-pedagogical neglect. It was also established that she was in need of treatment from the competent social welfare centre. In 2001/02 and 2002/03 she attended a Roma-only class and passed the fourth grade. In the following two school years she attended a mixed class, took the fifth grade for the second time and failed. She failed the third grade three times and the fifth grade twice. Out of seven regular parent-teacher meetings organised during her primary schooling, her parents attended three.",
"37. She was provided with additional classes in Croatian in the third grade in 2001/02. She participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 1,533 classes without justification.",
"(i) The ninth applicant",
"38. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of primary school in the school year 1999/2000 and attended a Roma-only class up to and including 2002/03, after which she attended a mixed class. In 2006/07 she took the fifth grade for the third time and failed. She failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three.",
"39. She was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2007. Her school report shows that during her schooling she missed 107 classes without justification.",
"(j) The tenth applicant",
"40. The tenth applicant, Branko Oršuš, was enrolled in the first grade of primary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/00 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. On 23 February 2005 the Međimurje County State Welfare Department ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children ’ s Psycho-physical Assessment Board – had established that he suffered from developmental difficulties. In 2005/06 he failed the sixth grade. He failed the first grade twice and the fourth and sixth grades once. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one.",
"41. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. He participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 664 classes without justification.",
"2. Macinec Primary School",
"(a) The eleventh applicant",
"42. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of primary school in 1997/98. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points ( 15.5% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2004/05 he took the fifth grade for the second time and failed. He failed the first and the fourth grades once and the fifth grade twice. Out of twenty-four parent-teacher meetings organised during his entire primary schooling, his parents attended none.",
"43. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. After reaching the age of 15, he left school in August 2005. His school report shows that during his schooling he missed 1,057 classes without justification.",
"(b) The twelfth applicant",
"44. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 8 out of 97 points ( 8.25% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2006/07 he took the third grade for the second time and failed. He failed the first grade once, the second grade three times and the third grade twice. Out of thirty-seven regular parent-teacher meetings organised during his primary schooling, his parents attended none.",
"45. He was provided with additional classes in Croatian in the first, second and third grades. In the second grade he participated in a dancing group and in the third grade in a choir. After reaching the age of 15, he left school in August 2007. His school report shows that during his schooling he missed 1,621 classes without justification.",
"(c) The thirteenth applicant",
"46. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored 26 out of 97 points ( 26.8% ). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of thirty-two regular parent-teacher meetings organised during her primary schooling, her parents attended six.",
"47. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 522 classes without justification.",
"(d) The fourteenth applicant",
"48. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points ( 15.5% ). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2005/06 he passed the third grade. He failed the first grade three times and the third grade once. Out of twenty-eight regular parent-teacher meetings organised during his primary schooling, his parents attended five.",
"49. He was provided with additional classes in Croatian in the first grade. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 1,033 classes without justification.",
"(e) The fifteenth applicant",
"50. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that her understanding of the Croatian language was poor. She scored 37 out of 97 points ( 38.14% ). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of twenty-one regular parent-teacher meetings organised during her entire primary schooling, her parents attended two.",
"51. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group, in the second grade in dancing, in the third grade in handicraft classes, and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 238 classes without justification.",
"C. Proceedings before the national courts",
"52. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court ( Općinski sud u Čakovcu ) against the above-mentioned primary schools and Kuršanec Primary School, the State and Međimurje County (“the defendants”). They submitted that the teaching organised in the Roma-only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future.",
"53. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following:",
"– most children had never had a non-Roma child as a friend;",
"– 86.9% expressed a wish to have a non-Roma child as a friend;",
"– 84.5% expressed a wish to attend a mixed class;",
"– 89% said they felt unaccepted in the school environment;",
"– 92% stated that Roma and non-Roma children did not play together.",
"Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children.",
"54. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher) had found that the candidates were physically and mentally ready to attend school. The classes within a school were formed depending on the needs of the class, the number of pupils, etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment.",
"55. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they were often not proficient in Croatian and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law.",
"56. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants ’ action, accepting the defendants ’ argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes.",
"57. On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory.",
"58. On 14 November 2002 the Čakovec County Court ( Županijski sud u Čakovcu ) dismissed the applicants ’ appeal, upholding the reasoning of the first-instance judgment.",
"59. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) under section 62 of the Constitutional Act on the Constitutional Court. In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention.",
"60. On 3 November 2003 the applicants ’ lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants ’ complaint in its decision no. U-III-3138/2002, published in Official Gazette no. 22 of 26 February 2007. The relevant parts of the decision read as follows.",
"“The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the Croatian language and not the pupils ’ ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for the year 2000. However, the Ombudsman said in his evidence that the part of the report referring to the education of Roma had been injudicious because all the relevant facts had not been established.",
"The first-instance court relied on section 27 paragraph 1 of the Primary Education Act ... which provides that teaching in primary schools is in the Croatian language and Latin script, and considered a lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found:",
"‘ pupils enrolling in the first year of primary schools have to know the Croatian language, so that they are able to follow the teaching, if the purpose of primary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language. ’",
"The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the integrity of a class and its unity in the upper grades.",
"The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge.",
"Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by the Ministry of Education and Sports on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman ’ s report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established.",
"The [first-instance] court established that teaching in the complainants ’ respective classes and the parallel ones followed the same curriculum. Only in the Kuršanec Primary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance.",
"After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants ’ action.",
"...",
"The reasoning of the first-instance judgment ... shows that the defendant primary schools replied to the complainants ’ allegations as follows:",
"‘ The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend primary school by a committee composed of a physician, a psychologist, a school counsellor [ pedagog ], a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in primary school. ... The defendant primary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, most of these children have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. ... It is therefore difficult to plan lessons with sufficient motivation for all children, which is one of the obligations of primary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ... ’",
"The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist at Macinec Primary School, given on 12 December 2001 ...;",
"‘ Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ... However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher ’ s first task is to teach the children the language. ’",
"The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the approach applied correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes.",
"The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors [ pedagog ], defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes.",
"None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin.",
"The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools.",
"The separate classes were not established for the purpose of racial segregation in enrolment in the first year of primary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation.",
"It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school year 2001 / 02 ... are not in themselves sufficient to indicate that the defendants ’ practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001, and D.H. and Others v. the Czech Republic, no. 57325/00, § 46, 7 February 2006 ).",
"Moreover, the complainants themselves maintain in their constitutional complaint that in the school year 2001 / 02 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court ’ s conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees.",
"...",
"In their constitutional complaint the complainants further point out that, ‘ [e] ven if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants ’ enrolment in upper grades ’. They therefore consider that their rights were violated by the courts ’ findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality.",
"In that regard the Constitutional Court accepts the complainants ’ arguments.",
"While the Constitutional Court considers correct and acceptable the courts ’ findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court:",
"‘ Furthermore, the integrity and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from one class to another would produce stress. ... The continuity of a group is a precondition for the development of a class collective ... ’",
"Accordingly, the Constitutional Court cannot accept the following view of the appellate court:",
"‘ The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally. They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act. ’",
"The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed, such as forming separate classes for children with inadequate command of Croatian.",
"Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ...",
"However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of primary school and successfully mastered the prescribed school curriculum.",
"...",
"Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Article 14 § 2 of the Constitution.",
"...",
"... [A] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations.",
"The present constitutional complaint concerns impugned judgments referring to the school year 2001/02. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ...",
"Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants ’ general complaint about the maintaining of Roma-only classes in the upper grades of primary school the Constitutional Court has addressed the following question:",
"– was the continued existence of Roma-only classes in the upper grades of primary school ... caused by the defendants ’ intent to discriminate those pupils on the basis of their racial or ethnic origin?",
"... [N] one of the facts submitted to the Constitutional Court lead to the conclusion that the defendants ’ ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin.",
"...",
"The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by the Ministry of Education and Sports on 16 June 1999. They consider that ‘ their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum, their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ... ’",
"After considering the entire case file, the Constitutional Court has found that the above allegations are unfounded. The case file, which includes the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court.",
"The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at Kuršanec Primary School, where in the first term of the school year 2001/02 the pupils in classes 1c, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes.",
"The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in [ Case “relating to certain aspects of the laws on the use of languages in education in ] Belgium [ ” ] (merits), 23 July 1968, Series A no. 6 ). ...",
"... [T] he Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ...",
"Thus, the Constitutional Court considers the complainants ’ assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants ’ assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary. The competent bodies of the Republic of Croatia recognise the level of education a person has completed irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.”",
"III. COUNCIL OF EUROPE REPORTS CONCERNING CROATIA",
"A. The European Commission against Racism and Intolerance (ECRI)",
"1. The first report on Croatia, published on 9 November 1999",
"65. The relevant part of the report concerning the situation of Roma reads:",
"“32. Overall, Roma/Gypsy are reported to continue to face societal discrimination and official inaction when complaints are filed. Progress has been made in the fields of education and public awareness, through the publication of studies on the subject of Romani education, initiatives related to the organisation and financing of education of Roma children, training of Roma teachers, and public forums on the difficulties faced by Roma/Gypsy society. The authorities are encouraged to give further support to such initiatives, taking into account ECRI ’ s General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies. ... ”",
"2. The second report on Croatia, published on 3 July 2001",
"66. The relevant parts of this report read:",
"“ Access to education",
"41. Education of Roma/Gypsy children is a serious problem in Croatia. Many Roma/Gypsy children do not go to school, having either dropped out or having never attended. According to Roma/Gypsy representatives, there are regions where not a single Roma/Gypsy child attends school. ECRI understands that the reasons for this situation are complex, and there is no easy solution, however emphasises the need to increase the participation of Roma/Gypsy children at all levels of education. The Croatian authorities are encouraged to make special efforts in this regard.",
"42. ECRI wishes to draw attention to its General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies, where the existence of discrimination in explaining the process of social exclusion is highlighted. An investigation should be carried out into the role of stereotypes and prejudices of teachers, which may lead to low expectations for Roma/Gypsy children. ECRI recommends, in this respect, that training be offered to teachers, including information about the particular needs and expectations of Roma/Gypsies and the ability to use this knowledge effectively. As insufficient knowledge of the Croatian language upon entry to classes may also present an obstacle, ECRI emphasises the importance of preparatory classes, additional training in the Croatian language and increased opportunities to study the Roma language in the early years of schooling, which might assist Roma/Gypsy children in integrating into the educational system. ECRI notes with interest initiatives such as the “ Programme for Including Roma children in the Education System of the Republic of Croatia ”, launched in 1998, and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with Roma associations. Roma/Gypsy organisations have highlighted the connection between poverty, poor living conditions and school attendance. The Croatian authorities might consider creating special assistance programmes for Roma/Gypsy and other children from extremely poor families who may find the costs of textbooks, other school materials and proper school dress prohibitive.”",
"3. The third report on Croatia, published on 14 June 2005",
"67. The relevant parts of this report read:",
"“ Education and awareness raising",
"83. ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups, particularly ... Roma.",
"...",
"Situation of the Roma community in Croatia",
"...",
"137. ECRI is pleased to learn that in October 2003 the government adopted a national programme for the Roma which aims to resolve many of the difficulties encountered by Roma in their day-to-day lives. The programme is based on the observation that Roma are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities. The programme aims to abolish all forms of discrimination, violence, stereotyping and prejudice against Roma, while ensuring that they do not lose their own identity, culture or traditions. In order to achieve this aim, the programme sets out a series of measures in areas such as access to citizenship, education, housing, access to public services and relations with the police. In 2004, a commission made up of government representatives, Roma and NGO [non-governmental organisation] representatives was set up to monitor the programme and develop a joint action plan for the different ministries. A number of measures have already been taken, such as the training of Roma as assistants in schools or as police officers and the training of young Roma at seminars on participation in public life. ... However, implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided, though these are essential to the success of such a programme. The programme must be regarded as positive, although in ECRI ’ s view it does not sufficiently emphasise the part played by stereotyping and prejudice against Roma, both among the population and among representatives of the public authorities, in the difficulties encountered by this community. ECRI also notes with interest that the government is in the process of adopting a national action plan for Roma integration, which proposes a wide range of measures to improve the situation of Roma.",
"...",
"Access to education for Roma children",
"141. In its second report on Croatia, ECRI recommended that the Croatian authorities make special efforts to increase the participation of Roma children at all levels of education.",
"142. The authorities have taken measures to facilitate Roma children ’ s access to education, such as setting up nursery school classes enabling them to learn Croatian, training teachers in Roma culture and training young Roma as assistants in schools. Some Roma now receive State grants to enrol in university. However, as they are very recent and applied on a small scale these measures are not enough to offset the fact that Roma children are very much behind in terms of equal opportunities in education. Many Roma children leave school at a very early age. They do not always have access to education in their mother tongue and their own culture in schools, in spite of the legislation on the rights of national minorities which provides for this possibility. The authorities have explained to ECRI that this is because the Roma have not asked for it themselves and because the Romani language is not standardised, with several Romani dialects in Croatia. However, some Roma representatives have expressed the wish that the school curriculum for Roma children should include teaching of their mother tongue and Roma culture, though they also emphasise the importance of learning Croatian.",
"143. ECRI is particularly concerned by allegations that separate classes solely for Roma children exist alongside classes for non-Roma children in some schools in the Međimurje region. According to several NGOs, including the European Roma Rights Centre, education in the classes set aside for Roma children is of poorer quality than in the other classes. According to the authorities, however, the sole reason why there are still classes comprising only Roma children is the de facto segregation which they face where housing is concerned, since Roma are sometimes in the majority in some areas. Nevertheless, this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained. ECRI notes that proceedings for racial segregation are pending before the national courts in this connection.",
"Recommendations",
"144. ECRI urges the Croatian authorities to take measures without delay to improve equal opportunities for Roma children in education. It stresses the paramount importance of elaborating a short-, medium- and long-term policy in the matter and providing sufficient funds and other resources to implement this policy. In particular, it should be made easier for Roma children to learn Croatian while also allowing those who so wish to be taught their Romani dialect and Roma culture.",
"145. ECRI encourages the Croatian authorities to conduct an in-depth investigation into the allegations that segregation is practised between Roma and non-Roma children in some schools and to rapidly take all the necessary measures, where appropriate, to put an end to such situations.",
"146. ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers, which may lead to low expectations of Roma children. It encourages all measures designed to educate teachers about Roma culture.”",
"B. Advisory Committee on the Framework Convention for the Protection of National Minorities",
"1. Opinion on Croatia adopted on 6 April 2001",
"68. The relevant parts of the opinion read:",
"Article 4",
"“ ...",
"28. The Advisory Committee finds that Croatia has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment, housing and education. It appears, however, that Roma issues have recently received increasing attention from the central authorities. The Advisory Committee finds it important that this commitment increases the vigour with which sectoral projects for Roma, such as the ones in the field of education (see also comments under Article 12), are pursued and leads to the development, in consultations with Roma, of more comprehensive programmes and strategies to address the concerns of this national minority.",
"... ”",
"Article 12",
"“ ...",
"49. While recognising that there appears to be no large-scale separation of Roma children within the educational system of Croatia, the Advisory Committee is highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Advisory Committee stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests. The Advisory Committee supports the efforts of the office of the Ombudsman to review this situation with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes. The Advisory Committee is aware of the reservations expressed by some Roma with respect to the integration of Roma pupils into regular classes and supports efforts to involve Roma parents and Roma organisations in the process aimed at remedying the current situation. The Advisory Committee considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned, as stipulated in the principles contained in the Committee of Ministers; ’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. The Advisory Committee notes that the government of Croatia adopted in July 1998 a “Programme of Integration of Roma Children in the Educational and School System” which contains a number of useful ideas in this respect. The text of the programme appears however rather cursory in nature, and the Advisory Committee considers that Croatia needs to develop, implement and evaluate further its measures aimed at improving the status of Roma in the educational system.",
"... ”",
"V. Proposal for conclusions and recommendations by the Committee of Ministers",
"“ ...",
"In respect of Article 12",
"...",
"The Committee of Ministers concludes that in certain schools in Croatia, Roma children are reportedly placed in separate classes, and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Committee of Ministers recommends that this question be reviewed, and necessary measures taken, with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes, bearing in mind the principles contained in the Committee of Ministers ’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe.”",
"2. Comments submitted by the Croatian Government on 26 September 2001",
"69. The relevant parts of the comments read:",
"Articles 12 and 14",
"“ ...",
"The education of Roma is a serious problem caused by their way of life and their attitude towards the system, laws, rights and obligations of citizens and requires particular efforts and solutions. The Croatian Ministry of Education and Sports, in cooperation with the other ministries and state institutions, local administration and self-government, as well as non-governmental organisations, has initiated programmes to resolve this issue at two levels:",
"( a) Programme of integration of the Roma population into the educational system of the Republic of Croatia.",
"( b) Exercise of minority rights aimed at preserving their mother tongue and culture.",
"Regarding pre-school education, the Ministry of Education and Sports, in cooperation with non-governmental organisations, initiated a programme for the inclusion of Roma children and their families, notably mothers, into the system, but only on a voluntary basis, while at the moment there are no effective mechanisms of obligatory inclusion.",
"At the level of primary and secondary education, Roma children attend classes together with other children. Those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language. This practice is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities. Although this practice has yielded some positive results, priority is given to the organisation of pre-school preparation to help Roma children to overcome the language barrier, learn the basic rules of school conduct, hygienic habits and needs, and strengthen the feeling of affiliation and security in the school environment. The Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children, granting of accommodation for Roma pupils (attending secondary schools), follow up to the process of inclusion, assisting in the preparation of young Roma for the profession of teachers and trainers, providing free school meals and bus transport to and from school and so forth.”",
"3. Second opinion on Croatia adopted on 1 October 2004",
"70. The relevant parts of the opinion read:",
"“Article 12 of the Framework Convention [for the Protection of National Minorities]",
"...",
"Education of Roma children and contacts amongst pupils from different communities",
"...",
"Present situation",
"( a) Positive developments",
"128. The authorities seem to be increasingly sensitive to the problems of Roma children in education and have launched new initiatives, including at the pre-school level, which are aimed at improving the situation and attendance of Roma children in schools. The National Programme for Roma Integration details a number of laudable measures that could help to further the protection of the Roma in the educational system, such as the employment of Roma assistant teachers in regular classes and the provision of free meals for children.",
"( b) Outstanding issues",
"129. The placing of Roma children in separate classes appears to be increasingly rare in Croatia, but this practice, which has been challenged in pending legal cases, continues in some schools in Međimurje County. The National Programme for Roma Integration also endorses the idea of separate first-grade Roma-only classes for those who have not attended pre-school and are not proficient in the Croatian language. Such classes do not appear to be set up to foster teaching in or of Roma language or other elements of Roma culture, but rather to assist the children to obtain basic Croatian language and other skills so that they can meet the demands of the educational system. While recognising that these are valuable aims, the Advisory Committee considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only.",
"...",
"Recommendations",
"131. Croatia should fully implement the valuable educational initiatives contained in the National Programme for Roma Integration, including those promoting increased attendance of Roma children in pre-schools. The envisaged remedial first-grade classes should, however, not be conceived a priori as Roma classes, but as classes in which individuals are placed on the basis of their skills and needs, regardless of their ethnicity.",
"... ”",
"4. Comments submitted by the Croatian Government on 13 April 2005",
"71. The relevant parts of the comments read:",
"Education of Roma children and contacts amongst pupils from different communities",
"“ The programme of pre-school education is intended to encompass as large a number of Roma children as possible and thus create the precondition for their successful entrance into the primary education system. The Ministry of Science, Education and Sports has also supported the establishment of kindergartens for Roma children in cooperation with Roma NGOs, international organisations and local authorities. The responsible bodies are also helping with the enrolment of Roma pupils in institutions of secondary and higher education and are providing student grants.",
"By increasing the number of Roma children in pre-school education, conditions are created for their enrolment in regular primary schools.”",
"C. Commissioner for Human Rights",
"1. Report by Mr Alvaro Gil- Robles, Commissioner for Human Rights, on his visit to the Republic of Croatia, 14 to 16 June 2004",
"72. The relevant parts of the report read:",
"“ III. Situation of the Roma community",
"...",
"27. In spite of non-discrimination on a legal plane, the treatment meted out to the Roma minority still raises anxieties since this population continues to undergo social and economic discrimination. It should nevertheless be observed that efforts have been undertaken in institutional matters especially, the government having set up a National Council of Roma chaired by the Deputy Prime Minister. Locally, and around Međimurje in particular, most districts have had water and electricity connected and are served by school transport.",
"...",
"A. Segregation in schools",
"30. The year 2002 saw the worsening of problems around the town of Čakovec which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children. Under strong national and international pressure, the authorities recognised that these practices existed and undertook to review this question.",
"31. When I visited Čakovec, I had the opportunity to visit a primary school with a mixed enrolment. I hasten to thank the head and the staff of this school for their reception. My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned. Certain difficulties still lingered, however. The Međimurje region has a high proportion of Roma and schools have a large enrolment of Roma pupils who make up as much as 80% of certain age bands. But these figures cannot justify any segregation whatsoever between children, who must be equally treated. I sincerely hope there will be no recurrence of the events which took place in the past, and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having Roma and non-Roma children educated together in the same classes.",
"32. Difficulties over Roma pupils ’ Croatian language proficiency were also reported to me. I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class. Nonetheless, the knowledge gap problem is not to be evaded. As a remedy to it, it could be useful to set up at national level pre-school classes for children whose mother tongue is not Croatian. That way, they will acquire a sufficient grounding in the Croatian language to be able to keep up with the primary school courses later, while at the same time familiarising themselves with the school institution. In the second place, it rests with the parents to ensure the sound learning of the language and their children ’ s regular attendance for the entire school course.”",
"2. Final report by Mr Alvaro Gil-Robles on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006)",
"73. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities of further education and finding employment in the future. At the same time, segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation.",
"74. It was also noted that special classes or special curricula for Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children.",
"75. In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity.",
"76. The excerpt of the report concerning Croatia reads:",
"“ 52. While visiting Croatia in 2004, I learned of a two-year programme, initiated in 2002, to prepare all Roma children for schools, under which children were taught various skills in the Croatian language. Under the Croatian Action Plan for the Decade for Roma Inclusion, special efforts to improve pre-school education for Roma children have been continued with a view to full integration in [to] the regular school system. ... ”",
"IV. OTHER COUNCIL OF EUROPE DOCUMENTS",
"A. The Committee of Ministers",
"1. Recommendation No. R (2000) 4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers ’ Deputies)",
"77. The Recommendation provides as follows:",
"“The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe,",
"Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education;",
"Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance;",
"Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘ socially and culturally handicapped ’;",
"Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children;",
"Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies;",
"Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination;",
"Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy;",
"...",
"Recommends that in implementing their education policies the governments of the member States:",
"– be guided by the principles set out in the appendix to this Recommendation;",
"– bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.”",
"78. The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows:",
"“ Guiding principles of an education policy for Roma/Gypsy children in Europe",
"I. Structures",
"1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies.",
"2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies.",
"3. To this end member States should make the ministries of education sensitive to the question of education of Roma/Gypsy children.",
"4. In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them.",
"5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents ’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system.",
"6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school.",
"7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils.",
"II. Curriculum and teaching material",
"8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States.",
"9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies.",
"10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes.",
"11. The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils.",
"12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children.",
"III. Recruitment and training of teachers",
"13. It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system.",
"14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers.",
"15. Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community.",
"...”",
"2. Recommendation CM/Rec(2009) 4 of the Committee of Ministers to member States on the education of Roma and Travellers in Europe (adopted by the Committee of Ministers on 17 June 2009 at the 1061st meeting of the Ministers ’ Deputies)",
"79. The relevant parts of the Recommendation read:",
"“The Committee of Ministers ...",
"1. Recommends that the governments of member States, with due regard for their constitutional structures, national or local situations and educational systems:",
"...",
"b. elaborate, disseminate and implement education policies focusing on ensuring non-discriminatory access to quality education for Roma and Traveller children, based on the orientations set out in the appendix to this recommendation;",
"...",
"d. ensure, through local and regional authorities, that Roma and Traveller children are effectively accepted in school;",
"... ”",
"80. The relevant sections of the Appendix to Recommendation CM/Rec(2009)4 read as follows.",
"“ I. Principles of policies",
"...",
"5. Member States should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education, with effective, proportionate and dissuasive sanctions, and that the law is effectively implemented. Where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures. Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents.",
"6. Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic, ethnic, cultural or social differences but facilitate access to schooling. Roma and Traveller representatives should be involved in defining and monitoring these procedures.",
"...",
"II. Structures and provision for access to education",
"9. Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population. To accomplish this goal, imaginative and flexible initiatives should be taken as required in terms of educational policy and practice. Appropriate measures should also be taken to ensure equal access to educational, cultural, linguistic and vocational opportunities offered to all learners, with particular attention to Roma and Traveller girls and women.",
"10. Attendance of pre - school education for Roma and Traveller children should be encouraged, under equal conditions as for other children, and enrolment in pre - school education should be promoted if necessary by providing specific support measures.",
"...",
"III. Curriculum, teaching material and teacher training",
"...",
"19. Educational authorities should ensure that all teachers, and particularly those working in ethnically mixed classes, receive specialised training on intercultural education, with a special regard to Roma and Travellers. Such training should be included in officially recognised programmes and should be made available in various forms, including distance and online learning, summer schools, etc.",
"20. Teachers working directly with Roma and Traveller children should be adequately supported by Roma or Traveller mediators or assistants and should be made aware that they need to engage Roma and Traveller children more in all educational activities and not de-motivate them by placing lower demands upon them and encourage them to develop their full potential.",
"... ”",
"B. The Parliamentary Assembly of the Council of Europe",
"1. Recommendation No. 1203 (1993) on Gypsies in Europe",
"81. The Parliamentary Assembly made, inter alia, the following general observations:",
"“ 1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe.",
"2. A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities.",
"3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts.",
"4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically.",
"5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today.",
"6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.",
"7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.",
"8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights.",
"...”",
"82. As far as education is concerned, the Recommendation states:",
"“ vi. the existing European programmes for training teachers of Gypsies should be extended;",
"...",
"viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies;",
"...”",
"2. Recommendation No. 1557 (2002) on the legal situation of Roma in Europe",
"83. This Recommendation states, inter alia :",
"“...",
"3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups.",
"4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society.",
"...",
"15. The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe:",
"...",
"c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to:",
"i. promoting equal opportunities for Roma on the labour market;",
"ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university;",
"iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration;",
"...",
"d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing ...",
"e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity:",
"...",
"ii. to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education;",
"...",
"v. to recruit Roma teaching staff, particularly in areas with a large Romany population;",
"f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels:",
"...",
"vi. to pay particular attention to the phenomenon of discrimination against Roma, especially in the fields of education and employment;",
"...”",
"C. ECRI",
"1. ECRI General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies (adopted by ECRI on 6 March 1998)",
"84. The relevant sections of this Recommendation state:",
"“The European Commission against Racism and Intolerance:",
"...",
"Recalling that combating racism, xenophobia, anti -Semitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights;",
"...",
"Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened;",
"Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies;",
"...",
"recommends the following to governments of member States:",
"...",
"– to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of employment, housing and education;",
"...",
"– to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education;",
"...”",
"2. ECRI General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (adopted by ECRI on 13 December 2002)",
"85. The following definitions are used for the purposes of this Recommendation:",
"“ ( a) ’ racism ’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons.",
"( b) ’ direct racial discrimination ’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.",
"( c) ’ indirect racial discrimination ’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”",
"86. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of “ direct ” and “ indirect ” racial discrimination contained in paragraph 1 ( b) and ( c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. The Constitution",
"61. Article 14 of the Constitution reads:",
"“Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.",
"All shall be equal before the law.”",
"B. The Constitutional Act on the Constitutional Court",
"62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read:",
"“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...",
"2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.",
"3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.”",
"C. The Administrative Disputes Act",
"63. Section 67 of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/ 19 92 and 77/ 19 92) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff ’ s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress.",
"D. The Primary Education Act",
"64. The relevant provisions of the Primary Education Act ( Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read:",
"Section 2",
"“The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education.",
"A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences.",
"The aims of primary education are:",
"– to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations;",
"– to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations.",
"The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.”",
"Section 3",
"“Primary education lasts at least eight years.",
"Primary education is in principle mandatory for all children from six to fifteen years of age. ”",
"V. RELEVANT UNITED NATIONS MATERIALS",
"A. International Covenant on Civil and Political Rights",
"87. Article 26 of the Covenant provides:",
"“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”",
"B. United Nations Human Rights Committee",
"88. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non- discrimination, the Committee expressed the following opinion:",
"“ 7. ... the Committee believes that the term ‘ discrimination ’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.",
"...",
"12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ... ”",
"89. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted:",
"“. .. the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.”",
"C. International Convention on the Elimination of All Forms of Racial Discrimination",
"90. The relevant part of Article 1 of this Convention provides:",
"“... the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.",
"...”",
"D. Committee on the Elimination of Racial Discrimination",
"91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia :",
"“ 1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. ...",
"2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.”",
"92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed:",
"“ 3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds.",
"4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...”",
"93. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere:",
"“17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities.",
"18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education.",
"19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.”",
"94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia :",
"“13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.”",
"E. Convention on the Rights of the Child",
"95. The relevant parts of Articles 28 and 30 of this Convention provide as follows.",
"Article 28",
"“1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:",
"(a) Make primary education compulsory and available free to all;",
"...",
"(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.",
"... ”",
"Article 30",
"“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”",
"F. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities",
"96. The relevant part of Article 4 provides:",
"“ 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.",
"... ”",
"G. United Nations Education, Scientific and Cultural Organization ( Unesco)",
"97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows.",
"Article 1",
"“1. For the purposes of this Convention, the term ‘ discrimination ’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:",
"(a) Of depriving any person or group of persons of access to education of any type or at any level;",
"(b) Of limiting any person or group of persons to education of an inferior standard;",
"(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or",
"(d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.",
"...”",
"Article 3",
"“In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake:",
"(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;",
"(b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions;",
"...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"98. The applicants complained about the length of the proceedings before the national courts. They relied on Article 6 § 1 of the Convention, which reads in its relevant parts as follows:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”",
"A. The Chamber judgment",
"99. In its judgment of 17 July 2008, the Chamber found that Article 6 was applicable to the present case under its civil head and that the length of the proceedings had been excessive.",
"B. The parties ’ submissions to the Grand Chamber",
"1. Applicability of Article 6 § 1",
"100. The Government, relying on the Court ’ s judgment in Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV), disputed the applicability of Article 6 to the proceedings conducted before the national courts upon the applicants ’ civil action.",
"101. The applicants argued in favour of the applicability of Article 6.",
"2. Merits",
"102. The applicants complained that the length of the proceedings, and in particular those before the Constitutional Court, had exceeded the reasonable time requirement.",
"103. The Government contested that argument, stressing the special role of the Constitutional Court and the fact that it had to address complex constitutional issues in the applicants ’ case.",
"C. The Court ’ s assessment",
"1. As to the Government ’ s preliminary objection",
"104. In its judgment in Emine Araç v. Turkey ( no. 9907/02, ECHR 2008), the Court explicitly recognised, for the first time, that the right of access to higher education is a right of a civil nature and, in so doing, it abandoned the case-law of the Commission ( see André Simpson v. the United Kingdom, no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports 64, p. 188 ), which had concluded that Article 6 was inapplicable to proceedings concerning the laws on education (on the ground that the right not to be denied primary education fell within the domain of public law). The Court considers that the same reasoning applies a fortiori in the context of primary education ( argumentum a maiore ad minus ).",
"105. In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others, cited above, § 61).",
"106. As to the present case, it seems clear that a “dispute” arose in respect of the applicants ’ initial and then continuing placement in Roma-only classes during their schooling in primary schools. The proceedings before the domestic courts concerned the applicants ’ allegations of infringement of their right not to be discriminated against in the sphere of education, their right to education and their right not to be subjected to inhuman and degrading treatment. The applicants raised their complaints before the regular civil courts and the Constitutional Court and their complaints were examined on the merits.",
"107. Furthermore, the applicants ’ right not to be discriminated against on the basis of race was clearly guaranteed under Article 14 § 1 of the Constitution and, as such, enforceable before the regular civil courts in the national legal system (see, mutatis mutandis, Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, § 42, 28 February 2008, and Gülmez v. Turkey, no. 16330/02, § 29, 20 May 2008).",
"In view of the above, the Court concludes that Article 6 § 1 is applicable in the instant case.",
"2. Merits",
"108. The Court reiterates that the reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicants ’ conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see Süßmann v. Germany, 16 September 1996, § 48, Reports 1996 ‑ IV, and Gast and Popp v. Germany, no. 29357/95, § 70, ECHR 2000 ‑ II ). In this connection, the Court notes that the proceedings commenced on 19 April 2002 and ended with the Constitutional Court ’ s decision of 7 February 2007. While the case was speedily decided by the trial and appellate court, where the proceedings lasted for some seven months, the same cannot be said of the length of the proceedings before the Constitutional Court, which lasted for four years, one month and eighteen days.",
"109. Although the Court accepts that the Constitutional Court ’ s role of guardian of the Constitution sometimes makes it particularly necessary for it to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms, the Court finds that a period exceeding four years to decide on the applicants ’ case and in particular in view of what was at stake, namely the right to education, appears excessive.",
"110. Accordingly, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings before the Constitutional Court.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1",
"111. The applicants complained that they had been denied their right to education and discriminated against in this respect. They relied on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which read as follows:",
"Article 14 – Prohibition of discrimination",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"Article 2 of Protocol No. 1 – Right to education",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"A. The Chamber judgment",
"112. The Chamber found no violation of Article 2 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention. It held that the applicants had been assigned to Roma-only classes because they lacked sufficient command of the Croatian language and that this measure had been justified.",
"B. The parties ’ submissions to the Grand Chamber",
"1. The applicants",
"113. As regards the nine applicants (the second to tenth applicants) who had attended Podturen Primary School, the applicants submitted that in the school year 2000/01, when they had all attended the second grade, a majority of them had been assigned to a Roma-only class. The following year, all nine of the applicants attending Podturen Primary School had been assigned to a Roma-only class with nineteen Roma pupils. At the same time there was only one other class in the third grade, consisting of nineteen non-Roma pupils. In the school year 2002/03 all nine applicants had been assigned together to a Roma-only class in the fourth grade. In the school year 2003/04 they had all been assigned to a mixed class only because there had not been enough Roma pupils to form a Roma-only class.",
"114. As regards the five applicants (the eleventh to fifteenth applicants) who attended Macinec Primary School, the applicants submitted that they had been assigned to a Roma-only class during their entire schooling. Most of the other Roma pupils had been assigned to Roma-only classes. In total, out of 153 Roma pupils in the first four grades, 137 had been assigned to Roma-only classes. In the fourth grade, out of 44 pupils, 21 were Roma, all assigned to a Roma-only class. The applicants argued that the Government had failed to present any consistent and rational explanation for forming a Roma-only class in the fourth year of schooling in Macinec Primary School since, in the applicants ’ view, by then all their language problems should have already been adequately remedied. The number of Roma-only classes in Croatia had increased from 27 in 2004 to 68 in 2008, 62 of which were in Međimurje County.",
"115. The applicants stressed, in particular, that the method used by the school authorities, allegedly to improve their language skills, had been inadequate. In their opinion the best method of integrating children with insufficient language proficiency would have been to place them in classes together with children who spoke the language of instruction because that, coupled with additional lessons in Croatian, would have been the easiest and fastest way for the applicants to learn Croatian. The applicants argued that it was critical to ensure that children who spoke a different language at home were included in groups that could provide good role models in terms of the majority language and created the best conditions for their language needs. They maintained that various research reports and expert bodies within the Council of Europe, the European Union and the United Nations recommended an integrative approach in the field of education of Roma children.",
"116. The applicants argued that there had been no specific programme in the above respect. They admitted, however, that the sixth, seventh, tenth and twelfth to fifteenth applicants had been provided with additional lessons in Croatian. They also argued that they had been provided with a substandard curriculum taught in Roma-only classes.",
"117. The applicants claimed that there had been no legal basis for assigning them to a Roma-only class. They argued that there had been no clear, accessible and foreseeable procedures regarding the assignment of pupils to special classes, either upon their enrolment or at subsequent stages in their education. In their view the tests employed as a part of the enrolment procedure were not designed to assess a child ’ s knowledge of the Croatian language but as an orientation point in determining the child ’ s psycho- physical status.",
"118. The applicants submitted that, apart from a general grading system, there had been no other specialised periodic assessment of their progress in acquiring an adequate command of the Croatian language. The grading scale was from one to five, and the lowest pass mark was two. They further argued that even when they had achieved a pass mark in the Croatian language they had not been transferred to a mixed class.",
"119. As a rule, their transfer to a mixed class had not been considered. On the contrary, the school authorities had refused to transfer them, claiming that the principle of homogeneity of a class was paramount.",
"120. The applicants claimed that there had been no specific measures in place for improving their poor school attendance and high drop-out rate, other than sanctions against pupils and parents.",
"121. The applicants submitted that there had been Roma assistants in the 1990s and that recently they had been reintroduced, but that both times this had been without a legal basis and without clear and objective criteria for hiring them that would have ensured their competence and positive results.",
"122. They further argued that they had not taken part in any extracurricular activities in an ethnically/racially mixed group organised by the school. They pointed to the lack of systematic and structured approach to the integration of Roma children into mainstream classes. Even if ethnically mixed extracurricular activities existed, they would be no substitute for complete classroom integration.",
"2. The Government",
"123. The Government firstly pointed out that the applicants had not been deprived of the right to attend school and receive education since they had all enrolled in primary school at the age of seven, like all children in Croatia, and had attended school until they reached the age of fifteen, after which schooling was no longer mandatory. The Government admitted that it was possible that the curriculum in Roma-only classes was reduced by up to 30% in relation to the regular, full curriculum. They argued that this was admissible under relevant domestic laws, and that such a possibility had not been reserved for Roma-only classes but was applied in respect of all primary school classes in Croatia, depending on the particular situation in a given class. Furthermore, the Roma-only classes were by no means “special” classes of any kind. They were ordinary classes in ordinary schools and were created only in schools where the proportion of Roma pupils was significant or where they represented a majority of pupils in a given generation, and then only in respect of those Roma pupils who also lacked adequate command of the Croatian language. In Podturen Primary School the number of Roma children in the lower grades varied from 33 % to 36%. In 2001 the total number of pupils had been 463, of whom 47 were Roma. There had been only one Roma-only class, with 17 pupils, while the remaining 33 Roma pupils had attended mixed classes. Since 2003 there had been no Roma-only classes in that school. In Macinec Primary School the number of Roma children in the lower grades varied from 57 % to 75%. Roma-only classes were formed in the lower grades and only exceptionally in the upper grades. All classes in the two final grades were mixed. In 2001 the total number of pupils had been 445, of whom 194 were Roma. There had been six Roma-only classes, with 142 pupils, while the remaining 52 Roma pupils had attended mixed classes.",
"124. The Government submitted that the applicants had been assigned to Roma-only classes on the basis of section 2 of the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes. Under section 2 of the Primary Education Act the purpose of primary education was to ensure the continuing development of each pupil as a spiritual, physical, moral, intellectual and social being, according to his or her capabilities and affinities. In the Government ’ s view this could only be achieved in a permanent group of pupils of approximately the same age and knowledge. The same legal basis and the same criteria had been applied in respect of all other pupils. The applicants had been submitted to the same tests as all other children enrolling primary school. The applicants had been assigned to Roma-only classes on the basis of their insufficient knowledge of the Croatian language in order to address their special needs and to ensure an equal approach, which was possible only where the majority of them had the same initial knowledge of the Croatian language and psycho-physical readiness to attend primary school.",
"125. All but the second and tenth applicants had been assigned to a Roma-only class upon their enrolment in primary school. The second and tenth applicants were initially enrolled in a mixed class. They failed the first grade with negative marks in, inter alia, the Croatian language. After that, they were assigned to a Roma-only class.",
"126. In respect of the applicants enrolled in Macinec Primary School, the Government submitted that the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher, in the presence of at least one of the child ’ s parents.",
"127. In respect of the applicants enrolled in Podturen Primary School, the Government submitted that the records concerning the enrolment of the applicants who had attended that school could not be found owing to the passage of time. They did, however, submit a testimony of a teacher who had led a three-month pre-school programme for Roma children and who said that at the end of that programme a teacher would assess each child ’ s language level, after which the child would be placed in a mixed or Roma-only class accordingly.",
"128. The Government submitted school records showing that all the applicants, both in Podturen and Macinec Primary Schools, had been provided with additional lessons in the Croatian language. They had been able to participate in various extracurricular activities carried out in the Croatian language, some of which were particularly focused on the improvement of language skills (such as recitals and reading). Furthermore, in 2002 in Podturen Primary School and in 2003 in Macinec Primary School, Roma assistants were recruited to help children in Roma-only classes to improve their knowledge.",
"129. The Government submitted that the assessment of the applicants ’ progress had been a part of the regular procedure for the evaluation of pupils, as in all other schools in Croatia. In the lower grades, evaluation in all subjects was done by the class teacher. A final mark was given at the end of each school year on the basis of all marks given during the school year. The basic elements for determining a mark were: knowledge and understanding of the subject matter, oral and written expression, applying acquired knowledge in practice and creative use of it, development of skills, participation in classes and development of a pupil ’ s psycho - physical abilities and capacities. In particular, elements for assessing knowledge of the Croatian language included reading and writing skills, oral and written expression, vocabulary and grammar, reading of books, and homework. A mark combined a number of factors, among which the most important for pupils in the lower grades were motivation and personal development in respect of each subject. The marks were given according to the individual capacity of each child. Therefore, the good marks given to some of the applicants after they had failed a grade or repeatedly failed a grade did not necessarily mean that they had a good command of the Croatian language, but that they had made progress.",
"130. As to the individual circumstances of the applicants in the present case, the Government submitted that their progress had in fact been very slow. All of the applicants had failed several grades in succession. Sometimes it had taken them two or three years to complete one grade. As an example they explained that the twelfth applicant had had to repeat the first grade twice, after which he scored a three (good) in Croatian. However, in the first grade, pupils were taught basic reading and writing skills and a majority of them received high marks. Therefore a three in Croatian after twice repeating the first grade could not be seen as proof of an adequate knowledge of the Croatian language. It had then taken him another three years to complete the second grade.",
"131. Furthermore, there were several procedural safeguards. Each parent had the right to challenge a teacher ’ s assessment. A school headmaster was obliged to examine every complaint. Where the majority of parents at a school meeting agreed that a particular teacher was not objective in his or her assessment, the class teacher had to examine the complaint at a meeting of the school board. Where the school board found the complaint founded, the headmaster was obliged to take the necessary measures, as prescribed by law. Furthermore, each pupil had the right to complain about the marks awarded, and the right to ask for a special panel to assess his or her knowledge. As to the applicants in the present case, there had never been any complaints about the assessment of their knowledge or their placement in a Roma-only class. Likewise, their parents had never asked for the transfer of their children to a mixed class.",
"132. The Government submitted school records showing that a number of measures had been adopted. Firstly, the class teachers encouraged pupils to attend school. The schools held regular meetings of class teachers with parents, as well as individual parent-teacher meetings for pupils who had problems with school attendance, but the parents of the pupils concerned mostly ignored invitations to both types of meeting. The schools also employed Roma assistants who served, inter alia, as mediators between the schools and parents and would visit parents and explain the necessity and importance of education for their children.",
"133. The school authorities also regularly informed the applicants and their parents that the applicants could continue their education at the same school even after the age of 15. In addition, the applicants also had a possibility of attending evening classes, free of charge, in a nearby town in order to complete their primary education. Three applicants enrolled in the evening programme, but only one actually completed it. In respect of the fifth applicant, the school authorities had informed the competent social welfare centre of the attendance problem, so that appropriate steps could be taken. The teachers had been involved in resolving various problems encountered in respect of the applicants. When a class teacher of the tenth applicant had noticed that he had problems with his sight, the teacher had taken him to an ophthalmologist and made sure he obtained adequate glasses.",
"134. The Government submitted that all Roma children, regardless of their placement in a particular class, were integrated with other children during their schooling in numerous ways, for example by their active involvement in all extracurricular activities organised at schools (such as singing, dancing, handicraft and mixed activities), as well as their participation in all outdoor activities organised by schools (such as swimming lessons, excursions to towns, visits to various sites, monuments and institutions, collection of litter, ecological activities and various competitions), and participation with other pupils in the social activities organised at schools (such as Christmas and New Year ’ s celebrations, School Day celebrations, Sports Day and Bread Day), plus the fact that they shared the same common school facilities, such as the canteen and playgrounds.",
"135. The schools in question also organised special activities for all pupils to improve non-Roma children ’ s understanding of Roma traditions and culture. These activities included celebrating Roma Day, organising visits to Roma settlements, informing pupils about the Romani language and customs and the problems Roma faced in everyday life, and encouraging Roma pupils to publish texts and poems in school magazines.",
"3. The third-party interveners",
"(a) The Government of the Slovak Republic",
"136. The Government of the Slovak Republic recognised the need to address the learning difficulties of certain pupils, such as lack of proficiency in the language of instruction at schools. They found different compensatory measures adopted in that respect constructive. They referred to the margin of appreciation afforded to the States in the sphere of education and stressed that the States should not be prohibited from setting up separate classes at different types of school for children with difficulties, or from implementing special educational programmes to respond to special needs.",
"137. Although the special needs of children with learning difficulties had to be addressed, that could not take precedence over the effective functioning of an education system, which had to remain compact and not fragmented according to the needs of each individual pupil. Thus, the placing of a child in a different class on objective and legitimate grounds, such as lack of proficiency in the language of instruction, could not be considered discriminatory. The other relevant factors in respect of the present case were the attitudes of parents and the possibility of transferring pupils to mixed classes, as well as the content of the school curriculum.",
"(b) Interights",
"138. Interights stressed the necessity for the Court to develop a comprehensive body of case-law on the substantive aspects of the right to education. The obligation to respect the right to education required States Parties to avoid measures that hindered or prevented the enjoyment of this right. The obligation to ensure that education was both adequate and appropriate required States to take positive measures that would enable and help individuals and communities to fully enjoy the right to education. The principal aims of education could only be achieved where children from different cultural backgrounds were educated together in integrated schools.",
"139. Access to education without discrimination implied that children should have the opportunity to participate in, and benefit from, a mainstream educational system that ensured their integration into society. All international standards on education were buttressed by the principle of non-discrimination. Because of the paramount importance of the right to education, the failure to secure that right to children of ethnic or linguistic minorities would undermine the ability of those minorities to break the cycle of poverty and marginalisation which many of them suffered from.",
"140. There were effective and practical alternatives to segregation in schools on the basis of linguistic and cultural differences. Segregation could effectively deny a minority their right to learn the majority language with consequential negative impact on their ability to benefit from education and to effectively participate in, and integrate into, general society. State-enforced segregation on the basis of culture or ethnicity was not permissible. While States should not segregate or exclude pupils on the basis of language in a discriminatory manner, they needed to adopt certain measures which would temporarily affect the segregation of pupils based on insufficient command of the language of instruction. However, a very narrow margin of appreciation was to be applied in that sphere in order to ensure that the segregation occurred only on the basis of valid linguistic needs and did so in a manner that ensured that pupils should be fully integrated on an appropriate and timely basis.",
"(c) Greek Helsinki Monitor",
"141. Referring to the Court ’ s case-law concerning the right to education and in particular to the judgments in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV ) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008), the Greek Helsinki Monitor stressed the importance of tests aimed at assessing the educational level of children upon their enrolment in schools, as well as the need to ultimately assign all Roma children to ordinary, mainstream classes. He also highlighted that the principle of integrated education could be diverged from only in certain exceptional circumstances and that only the integrative educational policy was compatible with the role of the member States ’ educational systems.",
"142. The interveners further relied on the Action Plan on Improving the Situation of Roma and Sinti within the OSCE (Organization for Security and Co - operation in Europe) area, which urged the member States to “develop and implement comprehensive school desegregation programmes aimed at: (1) discontinuing the practice of systemically routing Roma children to special schools or classes; and (2) transferring Roma children from special schools to mainstream schools”. The interveners also relied on the relevant Council of Europe sources, cited above.",
"C. The Court ’ s assessment",
"143. The applicants in the present case made complaints under Article 2 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, claiming that the fact that they had been allocated to Roma-only classes during their primary education violated their right to receive an education and their right not to be discriminated against. However, the Grand Chamber sees this case as raising primarily a discrimination issue.",
"144. In this connection, the Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005 ‑ XII ).",
"145. The complaint in the present case concerns alleged discrimination in respect of the applicants ’ right to education on account of their having been assigned, for part of their schooling, to separate classes constituted, according to them, on the basis of ethnic criteria. The Government, for their part, claimed that the applicants had been placed in separate classes on account of their inadequate command of the Croatian language. It follows that the central question to be addressed in the present case is whether adequate steps were taken by the school authorities to ensure the applicants ’ speedy progress in acquiring an adequate command of Croatian and, once this was achieved, their immediate integration into mixed classes. In this connection, the curriculum followed by the applicants and the procedures concerning their transfer to mixed classes appear of high importance. Thus, the alleged inequality of treatment in the enjoyment of the right to education is a fundamental aspect of the present case and the issues pertinent to this case are to be analysed from the standpoint of Article 1 4 of the Convention read in conjunction with Article 2 of Protocol No. 1.",
"146. The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States “a right of access to educational institutions existing at a given time”, but such access constitutes only a part of the right to education. For that right “to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed” (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-32, §§ 3-5, Series A no. 6 – “the ‘ Belgian linguistic ’ case”; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005 ‑ XI ).",
"147. While the case at issue concerns the individual situation of the fourteen applicants, the Court nevertheless cannot ignore that the applicants are members of the Roma minority. Therefore, in its further analysis the Court shall take into account the specific position of the Roma population. The Court has noted in previous cases that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly ’ s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 81 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 8 3 above). They therefore require special protection. As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies, this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance (see D.H. and Others, cited above, § 182 ).",
"148. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 - I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). In Chapman, the Court also observed that there could be said to be an emerging international consensus among the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community (see D.H. and Others, cited above, § 181).",
"1. Whether there was a difference in treatment",
"149. According to the Court ’ s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 - IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005 ). However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see the ‘ Belgian linguistic ’ case, cited above, p. 34, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI ). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of ethnic origin as compatible with the Convention (see Timishev, cited above, § 56 ).",
"150. The Court has also accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Sampanis and Others, cited above, § 68 ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII ). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see D.H. and Others, cited above, § § 180 and 189).",
"151. The Court points out at the outset that it has recently adopted two judgments in the sphere of education of Roma children finding that the applicants were discriminated against on the basis of their ethnic origin, namely D.H. and Others and Sampanis and Others (both cited above). The D.H. and Others judgment concerned a situation where a nationwide practice of placing a disproportionate number of Roma children in schools for pupils with learning difficulties amounted to discrimination based on the applicants ’ ethnic origin. In Sampanis and Others the Court found that the practice of first denying Roma children enrolment in school and their subsequent placement in special classes located in an annex to the main building of a primary school, coupled with a number of racist incidents in the school instigated by the parents of non-Roma children, also amounted to discrimination based on the applicants ’ Roma origin.",
"152. The present case is to be distinguished from the above two cases, in particular regarding the relevance of the statistics in the three cases, which could have a bearing on whether there is prima facie evidence of discrimination and consequently on the burden of proof. In D.H. and Others (cited above, § 18) the Court established that between 50 % and 70% of Roma children in the Czech Republic attended special schools for pupils with learning difficulties, while in Sampanis and Others (cited above, § 81) all Roma children attending the school at issue were allocated to a separate establishment. As to the present case, the Court firstly notes that the applicants, unlike in the Sampanis and Others case, attended regular primary schools and that the Roma-only classes were situated in the same premises as other classes. The proportion of Roma children in the lower grades in Macinec Primary School varies from 57 % to 75%, while in Podturen Primary School it varies from 33 % to 36%. The data submitted for the year 2001 show that in Macinec Primary School 44% of pupils were Roma and 73% of those attended a Roma-only class. In Podturen Primary School 10% of pupils were Roma and 36% of Roma pupils attended a Roma-only class. These statistics demonstrate that only in Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in Podturen Primary School the percentage was below 50%. This confirms that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory.",
"153. However, indirect discrimination may be proved without statistical evidence (see D.H. and Others, cited above, § 188). In this connection, the Court notes that the measure of placing children in separate classes on the basis of their insufficient command of the Croatian language was applied only in respect of Roma children in several schools in Međimurje County, including the two primary schools attended by the applicants in the present case. Thus, the measure in question clearly represents a difference in treatment.",
"154. As regards the grounds for the applicants ’ placement in separate classes, the Court is also mindful of the general comments made in the third ECRI report on Croatia, published on 14 June 2005 (see paragraph 67 above), which refers to “ allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained”. The Commissioner for Human Rights, in the report on his visit to Croatia (see paragraph 72 above), referred to a similar situation in the following passage:",
"“The year 2002 saw the worsening of problems around the town of Čakovec, which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children.”",
"155. In the circumstances of the present case, and even without any discriminatory intent on the part of the relevant State authorities, the fact that the measure in question was applied exclusively to the members of a singular ethnic group, coupled with the alleged opposition of other children ’ s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate.",
"2. Whether the difference in treatment had an objective and reasonable justification",
"156. According to the Court ’ s case-law, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others, cited above, § 51; and D.H. and Others, cited above, § 196 ). Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see Sampanis and Others, cited above, § 69).",
"157. The Court considers that temporary placement of children in a separate class on the ground that they lack an adequate command of the language is not, as such, automatically contrary to Article 14 of the Convention. It might be said that in certain circumstances such placement would pursue the legitimate aim of adapting the education system to the specific needs of the children. However, when such a measure disproportionately or even, as in the present case, exclusively, affects members of a specific ethnic group, then appropriate safeguards have to be put in place (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996 ‑ IV; Connors, cited above, § 83; and Timishev, cited above, § 56). Thus, the Court must now examine whether there existed such safeguards at each stage of the implementation of the measures complained of and whether they were effective.",
"(a) Initial placement of the applicants in separate classes",
"158. The Court first notes that there existed no clear and specific legal basis for placing children lacking an adequate command of the Croatian language in separate classes. The laws relied on by the Government, namely, the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes, did not provide for separate classes for children lacking proficiency in the Croatian language. The Government have not shown that this practice has been applied in respect of any other pupils lacking an adequate command of the Croatian language in any other part of Croatia, and not only in respect of Roma children in several schools in Međimurje County, including the two schools in question. Consequently, the impugned measures can hardly be seen as part of a common and general practice designed to address the problems of children who lack an adequate command of the Croatian language.",
"159. Moreover, the tests applied for deciding whether to assign pupils to Roma-only classes are not specifically designed to test the children ’ s command of the Croatian language. Where the State authorities opt to place children in a separate class on the ground that the children lack an adequate command of the Croatian language, the testing of such children should be specifically designed to assess their knowledge of the language. In its Opinion on Croatia, adopted on 6 April 2001, the Advisory Committee on the Framework Convention for the Protection of National Minorities stressed that “placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests” (see paragraph 68 above).",
"160. In the present case no specific testing of the applicants ’ command of the Croatian language took place. The testing of the applicants who attended Macinec Primary School (the eleventh to fifteenth applicants) was designed to test the children ’ s general psycho-physical condition, not their knowledge of the Croatian language in particular. As regards the applicants who attended Podturen Primary School (the second to tenth applicants), the Government have not shown that they were ever effectively tested in this respect (see paragraph 12 7 above).",
"161. Furthermore, certain inconsistencies in respect of some individual applicants cannot be ignored. For example, both the second and the tenth applicants were initially placed in a mixed class in Podturen Primary School upon enrolling in the first grade in the school year 1997/98. Only after two years were they transferred to a Roma-only class. Assuming that, as the Government contend, insufficient knowledge of the Croatian language was the reason for placing Roma children in Roma-only classes, it is difficult to understand why the second and the tenth applicants would have had sufficient knowledge of the Croatian language at the age of seven, when they started primary school, but not two years later, when they were transferred to a Roma-only class. It is equally improbable that it should have taken two years for their respective class teachers to note the applicants ’ insufficient command of the language. Even if these two applicants might have had some learning difficulties, as suggested by the fact that they failed to go up a grade for the initial two years of their schooling, these difficulties would not appear to have been adequately addressed simply by placing the applicants concerned in a Roma-only class. The tenth applicant, for his part, was offered an adapted curriculum by reason of his developmental difficulties only in the school year 2005/06, that is to say not until eight years after he enrolled in primary school and when he had already reached the age of 15 and thus soon to leave school.",
"162. The Court does not consider satisfactory the explanation given by the Government that, although these two applicants ’ command of the Croatian language had been inadequate when they enrolled in school, in those years there were no Roma-only classes in their school. For the fact remains that the applicants ’ insufficient command of the Croatian language was not adequately addressed for the first two years of their schooling.",
"(b) Curriculum",
"163. As regards the curriculum provided in Roma-only classes, the Government first argued that it was the same as in any other classes of the same grade and that all subjects were taught in Croatian. Yet, at the same time they contended that the applicants ’ command of the Croatian language had been insufficient to follow the regular school curriculum with the other pupils. The Government also admitted that the curriculum in Roma-only classes might have been reduced by up to 30% compared with the full standard curriculum, such a reduction being permissible under national laws and not reserved for Roma-only classes but accepted and allowed in respect of any primary school class in Croatia, depending on the abilities of the pupils in a given class.",
"164. The Court notes that if the applicants were taught the same curriculum as all other pupils, there appears to be no reason to have placed them in separate classes. However, if they were placed in separate classes because they lacked an adequate command of the Croatian language, the regular curriculum, taught in Croatian, could not possibly address their needs. Furthermore, the Government ’ s contention that the applicants followed a regular curriculum is difficult to reconcile with the comments submitted on 26 September 2001 by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “ [t] he Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose [ namely, to overcome the language barrier ] – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children ... ” (see paragraph 69 above). Thus, it would appear that the Roma children followed an “adapted curriculum”, though it is not clear what exactly that included.",
"165. As regards the fact that the curriculum taught in Roma-only classes might have been reduced by 30%, the Court first notes that the Government have not indicated the exact legal basis for such a reduction. Secondly, and more importantly, they have not shown how the mere fact of a possible reduction of the curriculum could be considered an appropriate way to address the applicants ’ alleged lack of proficiency in Croatian. Since, as indicated by the Government, teaching in the schools in question was in Croatian only, the State in addition had the obligation to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes.",
"166. In this connection, the Court refers to the above-mentioned comments submitted by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language” (see paragraph 69 above). The applicants, however, once assigned to Roma-only classes, were not provided with any specific programme in order to address their alleged linguistic deficiencies. Nor have the Government shown the existence of any written instructions or guidelines concerning the programme to be followed by pupils assigned to Roma-only classes.",
"167. As to the existence of additional Croatian classes, which, according to the Government ’ s submission, was one of the means by which the applicants ’ language deficiencies had been addressed, it would appear that the third, fourth and fifth applicants were never provided with such classes, although all three of them attended a Roma-only class for at least the first two years of their primary education.",
"168. As regards the sixth to eleventh applicants, it was not until their third grade that they were offered additional Croatian language lessons, although they were all placed in a Roma-only class from their first grade.",
"169. The thirteenth to fifteenth applicants were offered additional language classes only in the first year of their schooling. Yet they all stayed in a Roma-only class for the rest of their primary schooling.",
"170. Only the twelfth applicant was systematically offered additional Croatian language classes in the first, second and third grade. However, he spent his entire primary schooling in a Roma-only class.",
"171. In any event, even such additional classes in Croatian could at best only compensate in part the lack of a curriculum specifically designed to address the needs of pupils placed in separate classes on the ground that they lacked an adequate command of Croatian.",
"(c) Transfer and monitoring procedure",
"172. As to the transfer from Roma-only to mixed classes, the Government, both in the proceedings before the national courts and before this Court, argued that the homogeneity of each class had been an important factor in not transferring the applicants to a mixed class. However, as indicated above, the placement of the applicants in Roma-only classes could be seen as pursuing a legitimate aim only if it served the purpose of bringing their command of the Croatian language up to an adequate level and then securing their immediate transfer to a mixed class.",
"173. In this respect, it is to be noted that no programme was established for addressing the special needs of Roma children lacking language skills that included a time frame for the various phases of acquisition of the necessary language skills. As a result, the Court is of the opinion that the time the applicants spent in Roma-only classes appears to fall short of the requirement that their immediate and automatic transfer be ensured as soon as adequate language proficiency was attained.",
"174. In the above-mentioned comments in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Government stated that “ [t] his practice [of placing of Roma-children in separate classes] is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities” (see paragraph 69 above). The Court also refers to the Opinion on Croatia of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 1 October 2004, according to which “pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only” (see paragraph 70 above).",
"175. Yet the applicants in the present case each spent a substantial period of their education in Roma-only classes. The eleventh to fifteenth applicants spent all eight years of their schooling in a Roma-only class, while the second to tenth applicants attended at times both Roma-only and mixed classes. However, no particular monitoring procedure was in place. Although some of the applicants at times attended mixed classes, the Government failed to show that any individual reports were drawn up in respect of each applicant and his or her progress in learning Croatian. Such reports appear necessary in order to ensure objectivity as well as to identify problem areas which could then be addressed, if needed, with additional measures. The lack of a prescribed and transparent monitoring procedure left a lot of room for arbitrariness.",
"(d) Poor school attendance and high drop-out rate",
"176. One of the problems highlighted in the reports of the Council of Europe bodies concerning Croatia was the poor school attendance of Roma children and their high drop-out rate. In the second ECRI report on Croatia, published on 3 July 2001, it is stated that “many Roma/Gypsy children do not go to school, having either dropped out or having never attended” (see paragraph 66 above). This observation was confirmed in the third ECRI report on Croatia, published on 14 June 2005, according to which “ [ m ] any Roma children leave school at a very early age” (see paragraph 67 above). The statistics submitted by the applicants for Međimurje County and not refuted by the Government show a drop-out rate of 84% for Roma pupils before completing primary education. The applicants in the present case, without exception, left school at the age of 15 without completing primary education. Their school reports show poor attendance.",
"177. While the Croatian authorities cannot be held to be the only ones responsible for the fact that so many pupils failed to complete primary education or to attain an adequate level of language proficiency, such a high drop-out rate of Roma pupils in Međimurje County called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services. However, according to the Government, the social services had been informed of the pupil ’ s poor attendance only in the case of the fifth applicant. No precise information was provided on any follow-up.",
"(e) The involvement of the applicants ’ parents",
"178. The Government emphasised the parents ’ passivity and lack of objections in respect of the placement of their children in separate classes, as well as on the fact that they had not requested their transfer to mixed classes. In this connection, the following conclusions reached in the D.H. and Others case appear to be of relevance:",
"“202. As regards parental consent, the Court notes the Government ’ s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court ’ s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ( see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227 ) and without constraint ( see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35 ).",
"203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. ...",
"204. In view of the fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 -XII ).”",
"179. The same applies to the failure of the applicants ’ parents in the present case to raise objections to the placement of their children in Roma-only classes and their failure to seek their transfer to mixed classes.",
"(f) Conclusion",
"180. As appears from the Court ’ s judgment in D.H. and Others (cited above), the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006; see paragraphs 7 3 to 76 above ), a number of European States encounter serious difficulties in providing adequate schooling for Roma children. The Croatian authorities have sought to tackle the problem. However, in their attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, they have had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and an alleged degree of hostility on the part of the parents of non-Roma children. As the Grand Chamber noted in the above - mentioned D.H. and Others judgment, the choice of the best means to address learning difficulties of children lacking proficiency of the language of instruction is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule ( see D.H. and Others, cited above, § 205, and Valsamis v. Greece, 18 December 1996, § 28, Reports 1996-VI).",
"181. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley, cited above, § 76, and Connors, cited above, § 83).",
"182. The facts of the instant case indicate that the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group (see, mutatis mutandis, Buckley, cited above, § 84, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in separate classes where an adapted curriculum was followed, though its exact content remains unclear. Owing to the lack of transparency and clear criteria as regards transfer to mixed classes, the applicants stayed in Roma-only classes for substantial periods of time, sometimes even during their entire primary schooling.",
"183. A very positive aspect is the possibility of further education for Roma children who failed to complete primary education by the age of 15. After leaving primary school, the applicants had the possibility of enrolling in the government-funded evening school in Čakovec (a nearby town) in order to complete their education. Although all expenses were covered by the Government, only three of the applicants availed themselves of this opportunity, and only one actually completed the evening school. However, most of these developments took place after the period that is to be examined in respect of the applicants in the present case. They cannot repair the above-described deficiencies in the applicants ’ education.",
"184. In sum, in the circumstances of the present case and while recognising the efforts made by the Croatian authorities to ensure that Roma children receive schooling, the Court considers that there were at the relevant time no adequate safeguards in place capable of ensuring that a reasonable relationship of proportionality between the means used and the legitimate aim said to be pursued was achieved and maintained. It follows that the placement of the applicants in Roma-only classes at times during their primary education had no objective and reasonable justification.",
"185. The Court therefore finds that in the present case there has been a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1.",
"186. In view of that conclusion, it is not necessary to examine the complaint under Article 2 of Protocol No. 1 taken alone.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"187. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. The Chamber judgment",
"188. The Chamber, in view of the violation found, considered that the applicants had sustained non-pecuniary damage because the length of the proceedings before the national courts had exceeded a “reasonable time”, and that it was therefore appropriate to award them compensation. Ruling on an equitable basis, it awarded each applicant 1,300 euros (EUR) under this head, plus any tax that might be chargeable. It also awarded the applicants jointly EUR 2,000 for costs and expenses, plus any tax that might be chargeable.",
"B. The parties ’ submissions",
"189. The applicants claimed EUR 22,000 each in respect of non-pecuniary damage and EUR 20,316.50 jointly for costs and expenses incurred at domestic level and before the Court.",
"190. The Government argued that the applicants ’ claim in respect of non-pecuniary damage should be rejected. As regards the claim for costs and expenses in respect of the proceedings before the Court, the Government deemed it excessive.",
"C. The Court ’ s assessment",
"1. Non-pecuniary damage",
"191. The Court considers that the applicants must have sustained non-pecuniary damage – in particular as a result of the frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress. However, the Court considers the amounts claimed by the applicants to be excessive. Ruling on an equitable basis, it assesses the non-pecuniary damage sustained by each of the applicants at EUR 4, 5 00.",
"2. Costs and expenses",
"192. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that Mrs Kušan, Mr Dobrushi and Mr Alexandridis have each submitted details of their professional fees, as well as the costs of translation of the relevant documents. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10,000 for costs and expenses.",
"3. Default interest",
"193. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
34 | Ádám and Others v. Romania | 13 October 2020 | The applicants, ethnic Hungarians, undertook their education in their mother tongue. In order to receive their baccalaureate (school-leaving) qualification they had to sit exams to test their Romanian and their Hungarian, having to take two more exams than ethnic Romanians. They complained about discrimination against them as members of the Hungarian minority in the taking of final school exams — they had to take more exams than ethnic Romanians (two Hungarian tests) over the same number of days, and the Romanian exams had been difficult for them as non-native speakers. | The Court held that there had been no violation of Article 1 (general prohibition on discrimination) of Protocol No. 12 to the Convention, finding that neither the content of the curriculum nor the scheduling of the exams had caused a violation of the applicants’ rights. It noted in particular that the importance for members of a national minority to study the official language of the State and the corresponding need to assess their command of it in the baccalaureate was not called into question in the case. Nor was it its role to decide on what subjects should be tested or in what order, which came within States’ discretion (“margin of appreciation”). Furthermore, the extra tests the applicants had had to take had been a result of their own choice to study in their mother tongue. | Children’s rights | Education | [
"2. The applicants’ names, years of birth and place of residence are listed in Appendix I below. They were represented by Mr D.A. Karsai, a lawyer practising in Budapest.",
"3. The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. The applicants live in an area inhabited primarily by ethnic Hungarians. They attended school in Romania and were taught in Hungarian, their mother tongue, and because of this, had to take two additional exams in the baccalaureate, to assess their proficiency in their mother tongue (see paragraph 12 below). They all failed their baccalaureate because they did not obtain the required grades to pass the exams in Romanian language and literature (Ms Ádám, Mr Petres, Mr Bakos, Mr Forika and Mr Maxem) or Hungarian language and literature (Mr Ambrus). They all retook the exams but failed to obtain the required grades (see Appendix I below). Some of the applicants contested the marks (Mr Bakos, Mr Ambrus, Mr Forika and Mr Maxem), but after reassessment, their grades were still not sufficient to pass the exams. They all obtained the required grades in the other exams in the baccalaureate.",
"6. Under the applicable rules, in order to pass the baccalaureate, candidates must obtain a minimum of 5.00 in each exam and the overall grade must be a minimum of 6.00 (see paragraph 12 below). The maximum grade is 10.",
"7. The Ministry of Education sets the timetable for the baccalaureate at the beginning of each school year (see paragraph 12 and Appendix II below). The written exams are organised over consecutive days: Romanian language (written), mother tongue (written) and the first exam in a curriculum subject. Pupils sitting the additional exams in their mother tongue have three consecutive days of written examination, whereas pupils not sitting them have a day of rest in between (see Appendix III below).",
"8. According to data provided by the Government, in the period 2013 to 2018 the success rate in the final exams was 58.1 to 73.9% for all pupils and 58.4 to 70% for pupils taught in Hungarian. During the same period, the success rate in the Romanian language and literature exams was 17 to 18% lower for Hungarian language students than for their Romanian peers."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"DOMESTIC LAWNational Education Act (Law no. 1/2011)",
"National Education Act (Law no. 1/2011)",
"National Education Act (Law no. 1/2011)",
"9. The National Education Act (hereinafter “the NEA”), published in the Official Bulletin on 10 January 2011 and entered into force thirty days after publication, provides that the State “grants equal rights of access to all levels and forms of pre ‑ university and higher education, as well as lifelong learning, for all nationals of Romania, without any form of discrimination” (Article 2 § 8).",
"10. The NEA also provides as a defining principle “the recognition and the guarantee of rights of persons belonging to national minorities, the right to preserve, develop and express ethnic, cultural, linguistic and religious identity”, as well as the principle of “ensuring equal opportunities” (Article 3).",
"11. The following provisions regulate the right to education in minority languages:",
"Article 45",
"“(1) Persons belonging to national minorities shall have the right to be taught in their mother tongue, at all levels and in all forms of [primary and secondary] education, in accordance with the law.",
"(2) Any Romanian national and any national of a European Union State or Switzerland may register and be taught in all forms of education in the Romanian language, a minority language or a foreign language, irrespective of their mother tongue or of the language they were taught in previously.”",
"Article 46",
"“(1) In [primary and secondary] education, where teaching is done in a minority language, all subjects shall be studied in that language, with the exception of the subject of Romanian language and literature.",
"(2) The subject of Romanian language and literature shall be taught, throughout [primary and secondary] education, in accordance with the school curriculum and from textbooks specifically designed for the relevant national minority.",
"(3) By way of exception, in schools where teaching is done in a minority language, the subject of Romanian language and literature may be taught from textbooks used in schools where teaching is done in the Romanian language, at the request of parents, the organisation representing the national minority elected into Parliament or, if the respective national minority is not represented in Parliament, at the request of the parliamentary group representing national minorities.",
"(4) Exams in the subject of Romanian language and literature shall be based on a special school curriculum.",
"(5) In [primary and secondary education], evaluation assessments and exams for pupils enrolled in schools where teaching is done in a minority language shall be based on the requirements of the national curriculum.",
"...",
"(12) In [primary and secondary] education, pupils may sit the entrance and final exams in the language in which they were taught the relevant subjects, in accordance with the law.”",
"12. The content and organisation of the baccalaureate are regulated as follows:",
"Article 77",
"“(1) Secondary school graduates shall receive a diploma and record of [their] grades, as part of their educational portfolio, attesting to the fact that [they] finished their secondary school studies and may ... take the baccalaureate exam.",
"(2) Pupils who passed their [final school year] shall sit the national baccalaureate exam.",
"(3) Secondary school graduates who sit and pass the national baccalaureate exam shall receive a baccalaureate diploma, which gives them access to university education, in accordance with the law.",
"(4) The national baccalaureate exam consists of the following exams:",
"- Exam A: an assessment of oral communication skills in the Romanian language;",
"- Exam B: an assessment of oral communication skills in the mother tongue, for pupils whose high school education was in a minority language;",
"- Exam C: an assessment of oral communication skills in two foreign languages studied at high school ...;",
"- Exam D: a digital [computer] skills assessment ...;",
"- Exam E: a written assessment of competences obtained throughout high school, as follows:",
"(a) a written exam in Romanian language and literature – a standard exam for pupils in all branches, profiles and specialisations;",
"(b) a written exam in the [maternal] language and literature – a standard exam for pupils in all branches, profiles and specialisations whose high school education was in a minority language;",
"(c) written exams in two subjects ...",
"(5) The content of the exam curriculum is set by the Ministry of Education ... and publicly announced to pupils at the beginning of the first year of secondary school, in accordance with the law. The timetable, methodology and organisation of the baccalaureate exam are set by the Ministry of Education ... and are publicly announced for each year group at the beginning of the last year of secondary school.",
"...”",
"Article 78",
"“1. [Secondary] school graduates shall be considered to have passed the national baccalaureate exam if all the following conditions are met:",
"(a) [they] sat exams A, B, C and D provided for by Article 77 § 4;",
"(b) [they] sat written exams E provided for by Article 77 § 4 and obtained at least grade 5 in each;",
"(c) [they] obtained at least 6 as the average grade, calculated to two decimal points, in exams E.",
"2. School graduates who pass the baccalaureate exam shall receive a baccalaureate diploma.",
"3. School graduates who pass exams A, B, C and D provided for by Article 77 § 4 shall receive certificates attesting to their level of language and digital skills respectively. These certificates are issued irrespective of whether they have passed exams E provided for by Article 77 § 4.",
"4. If a pupil does not pass the national baccalaureate exam, the grades obtained in assessments A, B, C and D ... and the results obtained in written exams E, if grade 5 or higher, shall be recognised in the next [exam] session, upon request.",
"5. Two national baccalaureate exam sessions shall be organised per school year.",
"...",
"6. Pupils may sit the baccalaureate exam twice free of charge. Any subsequent resits shall be subject to the payment of a fee set by the Ministry of Education ...",
"7. Assessments A, B, C and D provided for by Article 77 § 4 shall ... take place in each school during the school year, in the second semester...",
"8. Written exams E in the national baccalaureate exam, provided for by Article 77 § 4, shall take place at the end of the school year, in the presence of a committee set up by the school inspectorate.”",
"Discrimination under domestic law",
"13. Discrimination is prohibited by Article 16 of the Constitution, and is defined in Article 2 § 1 of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination). In addition, Article 11 of the Ordinance provides as follows:",
"“(1) Under the ordinance herein, denying a person or group of persons access to the State-owned or private education system of any kind, degree or level, on account of their belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of their beliefs, age, gender or sexual orientation, shall constitute a contravention.",
"(2) The provisions of the paragraph above shall apply at all stages and levels of education, including admission or enrolment in education institutions and the assessment and examination of students’ knowledge.",
"(3) Under the ordinance herein, requiring a declaration to prove that a person or group belongs to an ethnic group as a condition of access to education in their mother tongue shall constitute a contravention. The exception to this rule is the situation where candidates apply in the secondary and higher education system for places allocated specifically for a certain minority, in which case they shall prove that they belong to this minority by means of a document issued by a legally established organisation [representing] the relevant minority.",
"(4) The provisions of paragraphs (1), (2) and (3) shall not be interpreted as a restriction of the right of an education institution to refuse the application of a person whose knowledge and/or prior results do not meet the required admission standards of that institution, as long as the refusal is not determined by [his or her] belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of his or her beliefs, age, gender or sexual orientation.",
"...",
"(6) Under the ordinance herein, any restrictions based on belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group in the establishment and accreditation of education institutions set up in accordance with the legal framework in force shall constitute a contravention.”",
"14. On 3 July 2008 the Constitutional Court adopted four decisions (nos. 818, 819, 820, and 821) declaring Articles 1, 2 and 27 § 1 of the Anti-discrimination Ordinance unconstitutional in so far as they could be interpreted as granting the domestic courts the power to repeal laws which they found to be discriminatory. The decisions were adopted following an examination of constitutional complaints lodged by the Ministry of Justice in four sets of proceedings in which the domestic courts had declared various legal provisions concerning salary adjustments discriminatory. The decisions were published in the Official Gazette on 16 July 2008. In all four decisions, the Constitutional Court held:",
"“Interpreting the provisions of the [Anti-discrimination Ordinance] so as to allow the courts to have power to repeal legal provisions and replace them with new provisions or existing provisions from other laws is clearly unconstitutional, as it breaches the principle of the separation of powers enshrined in Article 1 § 4 of the Constitution, as well as Article 61 § 1, which states that Parliament is the only legislative body in the country.",
"...",
"Accordingly, the Constitutional Court ... rules that the provisions of Articles 1, 2 § 3, and 27 § 1 of Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination are unconstitutional, in so far as they can be interpreted as allowing the courts to revoke or refuse to apply [laws] on the grounds that they are discriminatory and replace them with provisions created on the basis of case-law or provisions of other laws not considered by the legislature when adopting the provisions [considered discriminatory].”",
"Administrative Proceedings Act (Law no. 554/2004)",
"15. The relevant parts of the Administrative Proceedings Act read as follows:",
"Article 1: Who can apply to court",
"“(1) Anyone who considers that their rights or legitimate interests were breached by a public authority by an administrative act or failure to respond to a request within the statutory time-limit, may apply to court for annulment of that act, acknowledgement of the right or legitimate interest at stake and compensation for the damage sustained. The legitimate interest may be either private or public.”",
"Article 2: Meaning of terms",
"“1. In accordance with the present law, the following words and phrases have the meaning set out below: ...",
"(c) administrative act: unilateral act, either individual or normative, issued by a public authority, in the exercise of its public power, with a view to organising the application of a law or concrete application of a law, and which gives rise to, modifies or extinguishes legal relations;",
"...”",
"Article 8: Subject of the legal action",
"“1. Anyone who considers that their rights or legitimate interests were breached by a unilateral administrative act, and who is unsatisfied with the response received to their preliminary request [ plângere prealabilă ] or who has received no response within the time-limit specified in Article 2 § 1 (h), may lodge an action with the court, seeking partial or total annulment of that act, compensation for the damage sustained, and, if applicable, non-pecuniary damages ...”",
"Order no. 4799 of 31 August 2010 of the Ministry of Education concerning the organisation and administration of the baccalaureate",
"16. Ministerial Order no. 4799 regulates the baccalaureate exam procedure. The relevant provisions read as follows:",
"Article 43",
"“1. Subjects for the written exams shall be set by the National Assessment and Examination Centre in accordance with the following criteria:",
"(a) [they] shall comply with the school curricula and the baccalaureate programme approved and published by the [Ministry of Education] ...”",
"Article 47",
"“3. The National Assessment and Examination Centre shall ensure translation of the subjects into the languages of national minorities.”",
"CONSTITUTIONAL COURT DECISIONSDecision no. 2/2011",
"Decision no. 2/2011",
"Decision no. 2/2011",
"17. In decision no. 2/2011, issued on 23 February 2011, the Constitutional Court examined a challenge to the constitutionality of the NEA made by a group of parliamentarians. Several provisions were called into question, including Article 46 § 2 providing for the right to education of national minorities (see paragraph 11 above). The Constitutional Court dismissed all objections.",
"The relevant parts of the Constitutional Court’s decision read as follows:",
"“... the Court observes that Article 6 of the Constitution guarantees the right to identity of people belonging to national minorities; the constitutional provision expressly provides that ‘the State recognises and guarantees the right of persons belonging to national minorities to preserve, develop, and express their ethnic, cultural, linguistic and religious identity’. The method of implementation of this right is specified in paragraph 2 of the same constitutional provision, which requires that adequate measures be taken to this end. The State’s positive obligation is inferred from the phrase: ‘protection measures taken by the State’ which must respect ‘the principles of equality and non-discrimination in relation to other Romanian nationals’.",
"...",
"Numerous international instruments provide for the right to education ... of persons belonging to national minorities ...",
"Consequently, positive measures may be necessary to protect the identity of a minority and the rights of members of that group to enjoy and develop their own culture and language, and practice their religion ...",
"These international instruments refer to the specific situation of persons belonging to national minorities, which requires the State to treat them differently ...",
"The [NEA] has implemented and developed these obligations so as to allow and guarantee the continuous development of the cultural identity of persons belonging to national minorities ...",
"The legislature has chosen to make specific provisions concerning [primary and secondary] education for persons belonging to national minorities.",
"...",
"The fact that the law provides for a special school curriculum for learning the Romanian language designed for members of a national minority signifies that the specific situation of these persons has been taken into account, notably the fact that they have a different mother tongue than Romanian. In other words, the different situation in which members of a national minority find themselves evidently calls for different treatment by law, in order to ensure effective equality and access to quality education for all. Consequently, the legislature must take this fact into account and adapt the requirements to learn Romanian language and literature to the specific situation of persons belonging to national minorities. Last but not least, the authorities have an obligation to ensure that a sufficient number of hours are provided for the proper study of Romanian language and literature.”",
"Decision no. 670/2015",
"18. Z.I.A., the father of an ethnic Hungarian student, complained that Ministerial Order no. 5610/2012 setting the timetable for the baccalaureate exams discriminated against pupils belonging to a national minority who had to sit two additional exams in the same time period as their Romanian peers.",
"19. In decision no. 148/2014, issued on 5 March 2014, the National Council for Combatting Discrimination (“the NCCD”) found that that situation did not constitute discrimination. It accepted that pupils taught in their mother tongue and not Romanian had to make additional efforts during their final exams. It considered, however, that these efforts were rewarded by the fact that they obtained a certificate of language proficiency which was not awarded to Romanian pupils. Moreover, it reiterated that being taught in a language other than Romanian was a choice and not a right for students. This choice involved additional efforts on the part of the State and the students themselves, and both parties had to accept this choice.",
"20. In the operative part of its decision, the NCCD recommended that the authorities:",
"“... set a timetable [for the baccalaureate] taking into account the days necessary for rest, set a timetable allowing an equal amount of days between the [exams] in the baccalaureate, for instance by scheduling the [exams] in the mother tongue – oral and written – at the end of the baccalaureate exam period, in so far as possible.”",
"21. Z.I.A. lodged an action with the Bucharest County Court complaining of discrimination against ethnic Hungarian pupils and seeking annulment of the decision issued by the NCCD on 5 March 2014. In his action, he requested that the matter of discrimination be referred to the Constitutional Court.",
"22. Following a referral by the Bucharest Court of Appeal, the Constitutional Court examined the compatibility with the non ‑ discrimination clause of the NEA. In his complaint, Z.I.A. argued that during the same period of time allocated to all students for the final exams, ethnic Hungarians had to sit more exams than their Romanian peers. This, in his view, created a difference in treatment amounting to discrimination. He also suggested that the solution for eliminating discrimination would be to have pupils sit exams in only one of the two languages, namely their mother tongue.",
"23. In decision no. 670/2015, issued on 20 October 2015, the Constitutional Court dismissed the complaint. It reiterated that the Constitution guaranteed the right of the persons belonging to a national minority to preserve their collective identity through the use of their mother tongue. This right however, was related to the obligation to integrate into society in general, by learning the official language. Consequently, the Constitutional Court dismissed the argument that there was no objective and reasonable justification for requiring students belonging to ethnic minorities to sit the Romanian language exams.",
"24. The Constitutional Court further held that the fact that students belonging to ethnic minorities had to sit more exams in the same time period was not a question of constitutionality. It reiterated that it was for the legislature to set the timetable for the final exams.",
"25. Consequently, Z.I.A.’s initial action was dismissed by the Bucharest Court of Appeal on 24 November 2014. In a final decision of 7 March 2017 the High Court of Cassation and Justice declared his appeal on points of law null and void, on the grounds that he had failed to state the reasons for his appeal.",
"COUNCIL OF EUROPE MATERIALSFramework Convention for the Protection of National Minorities",
"Framework Convention for the Protection of National Minorities",
"Framework Convention for the Protection of National Minorities",
"26. The Framework Convention for the Protection of National Minorities, adopted by the Council of Europe in 1995, entered into force in respect of the respondent State on 1 February 1998. The relevant parts read as follows:",
"“The member States of the Council of Europe and the other States, signatories to the present framework Convention,",
"...",
"Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity;",
"...”",
"Article 5",
"“1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.",
"2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.",
"...”",
"Article 10",
"“1. The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing.",
"...”",
"Article 12",
"“1. The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority.",
"2. In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities.",
"3. The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities.",
"...”",
"Article 14",
"“1. The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language.",
"2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.",
"3. Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language.”",
"European Charter for Regional or Minority Languages",
"27. The European Charter for Regional or Minority Languages, adopted by the Council of Europe in 1992, entered into force in respect of the respondent State on 1 May 2008. The relevant provisions read as follows:",
"“Preamble",
"The member States of the Council of Europe signatory hereto,",
"...",
"Considering that the right to use a regional or minority language in private and public life is an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and according to the spirit of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms;",
"...",
"Stressing the value of interculturalism and multilingualism and considering that the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them;",
"Realising that the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity;",
"Taking into consideration the specific conditions and historical traditions in the different regions of the European States,",
"...”",
"Article 1 – Definitions",
"“For the purposes of this Charter:",
"a ’regional or minority languages’ means languages that are:",
"i traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and",
"ii different from the official language(s) of that State;",
"it does not include either dialects of the official language(s) of the State or the languages of migrants;”",
"THE LAW",
"PRELIMINARY REMARKS",
"28. The Court notes from the outset that the applicants complained about the manner in which the baccalaureate was organised. The necessity and benefits of learning Romanian was not called into question by them (see paragraph 71 below). It was likewise reaffirmed by the Constitutional Court (see paragraph 23 above). In this connection, the Court also stresses that the Council of Europe instruments relevant to the protection of national minorities, notably the Framework Convention for the Protection of National Minorities (see paragraph 26 above) and the European Charter for Regional or Minority Languages (see paragraph 27 above), expressly recognise that the protection and encouragement of minority languages should not be to the detriment of official languages and the need to learn them.",
"Consequently, the importance for national minorities to study the official language of the State was not called into question in the present applications.",
"JOINDER OF THE APPLICATIONS",
"29. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).",
"ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO THE CONVENTION",
"30. The applicants complained that they had been discriminated against because of the manner in which the baccalaureate was organised, as in the same short time period they had had to take two additional exams in the baccalaureate compared to their Romanian peers. Moreover, the exams they had had to sit in Romanian language and literature had been very difficult for them. This situation imposed a more significant burden on Hungarian pupils than on their Romanian peers. The applicants claim that as a consequence, they had failed their baccalaureate. They relied on Article 1 of Protocol No. 12 to the Convention, which reads as follows:",
"“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.",
"2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”",
"AdmissibilityThe Court’s jurisdiction ratione materiae",
"The Court’s jurisdiction ratione materiae",
"The Court’s jurisdiction ratione materiae",
"31. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case and the issue of the applicability of Article 1 of Protocol No. 12 falls to be examined at the admissibility stage.",
"32. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019).",
"33. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that Article concerns four categories of cases, in particular where a person is discriminated against:",
"“i. in the enjoyment of any right specifically granted to an individual under national law;",
"ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;",
"iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);",
"iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”",
"The Explanatory Report further clarifies that:",
"“... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.”",
"34. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105).",
"35. In this connection, the Court notes that all pupils are granted by law the option to be taught in their mother tongue and that the authorities are expected to take measures to facilitate it (see paragraph 11 above). Consequently, the applicants may claim that they had been discriminated in the enjoyment of a right specifically granted to an individual under national law.",
"36. It follows that Article 1 of Protocol No. 12 applies to the facts of the present case.",
"Non-exhaustion of domestic remedies",
"(a) The parties’ submissions",
"(i) The Government",
"37. The Government pointed out that the applicants had not brought their grievances to the attention of the domestic authorities. They could have lodged an administrative complaint against the ministerial orders setting the timetable for the baccalaureate exams. A complaint under the Administrative Proceedings Act (see paragraph 15 above), would have allowed the domestic courts to examine the timetable and, if found in violation of the claimants’ fundamental rights, annul the ministerial order in question.",
"38. Moreover, the applicants could have also lodged a complaint with the NCCD similar to that lodged by Z.I.A. (see paragraphs 18-20 above).",
"(ii) The applicants",
"39. The applicants pointed out that the Government had not produced any evidence to show that the remedies suggested would be able to provide them with redress. They reiterated that the NCCD had found that the situation complained of did not constitute discrimination, thus proving its ineffectiveness in the matter (see paragraph 20 above).",
"40. They further reiterated that their complaint concerned not only the time to rest between exams, but also the difficulty of the exams in Romanian language and literature, which had drastically reduced their chances of applying for university.",
"41. They argued that the only way Hungarian students could have similar rest and preparation time as Romanian pupils was by setting a longer exam period and possibly altering the sequence of the exams. However, as the structure and sequence of the final exams were laid down in the NEA, they had no domestic remedy at their disposal to complain about it.",
"42. Lastly, the applicants argued that the ministerial orders setting the exam timetable were published about ten months before the actual exams. In their view, this was insufficient time to obtain a final ruling in a complaint lodged under the Administrative Proceedings Act (see paragraph 15 above).",
"(b) The Court’s assessment",
"(i) General principles",
"43. On the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).",
"44. In particular, the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Gherghina, cited above, § 85, with further references).",
"45. Nevertheless, there is no obligation to have recourse to remedies which are inadequate or ineffective. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (ibid., § 86, with further references).",
"46. The Court has, however, also frequently stressed the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 87, with further references).",
"47. The Court also reiterates that as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case ‑ law (ibid., § 88, and Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018).",
"(ii) Application of those principles to the facts of the case",
"48. Turning to the facts of the present case, the Court notes that Government suggested two possible remedies: a complaint under the Administrative Proceedings Act and an action before the NCCD (see paragraphs 37 and 38 above). The Court will examine in turn the effectiveness of each of those remedies.",
"(α) Complaint with the administrative courts",
"49. The Court notes at the outset that the Government did not provide any examples of domestic case-law demonstrating that an administrative complaint would be both effective and available in practice (see paragraph 47 above; see also, mutatis mutandis, Romeo Castaño v. Belgium, no. 8351/17, § 57, 9 July 2019, and Butrin v. Russia, no. 16179/14, § 43, 22 March 2016). Moreover, the Court cannot find, in the material submitted before it, any indication of the prospects of success of this remedy. It cannot assess in the abstract how the domestic courts would deal with an action brought by the applicants against the ministerial order (see paragraphs 15 and 42 above). For instance, the Court cannot speculate about the applicants’ victim status under domestic law at the moment it was published, that is, before they graduated and qualified to take the baccalaureate (see Article 77 § 1 of the NEA, cited in paragraph 12 above).",
"50. The Court finds no justification for the complete absence of domestic case-law from the Government’s submissions (contrast Gherghina, cited above, § 100). In this connection, it notes that the remedy suggested by the Government is provided for by the Administrative Proceedings Act, which constitutes the lex generalis for any action against an administrative act when such an action is permitted by law (see paragraph 15 above). Even assuming that the ministerial orders setting the baccalaureate exam timetable have never been challenged in the past, the Government should have provided the Court with relevant domestic decisions concerning actions brought against other such ministerial orders, issued in other fields. It is therefore inconceivable that the action has been rarely used in the past (ibid.), and the Government have not argued that either. In failing to submit relevant case-law, the Government failed to prove that the administrative complaint constituted in practice an effective remedy.",
"(β) Complaint with the NCCD",
"51. As to a complaint before the NCCD (see paragraph 38 above), the Court notes that in a similar action brought against Ministerial Order no. 5610/2012 (see paragraph 18 above) the NCCD decided that the situation of Hungarian pupils sitting their baccalaureate exams did not constitute discrimination (see paragraph 19 above). As the applicants’ situation is identical to that already examined by the NCCD in the above action, the Court considers that, in the concrete circumstances of the present case, the prospects of success are so low as to render the remedy futile (see the case-law referred to in paragraph 45 above).",
"52. Lastly on this point, and in the absence of any information provided by the Government, the Court cannot speculate as to whether the domestic courts would entertain a complaint of discrimination by the applicants against the ministerial orders. It reiterates that the Constitutional Court instructed the domestic authorities to set the timetable for the baccalaureate exams by law (see paragraph 24 above). At the same time, it also effectively forbade the domestic courts from repealing laws which they found to be discriminatory (see paragraph 14 above).",
"(γ) Conclusion",
"53. In view of the foregoing, the Court considers that the applicants did not have at their disposal an effective domestic remedy. Consequently, the Government’s objection of failure to exhaust domestic remedies should be dismissed.",
"Six-month rule",
"(a) The parties’ submissions",
"(i) The Government",
"54. The Government argued that the applicants should have lodged their applications with the Court within six months of the date the Ministry of Education had adopted the relevant order setting the timetable for the relevant school year’s baccalaureate exams (see Appendix II below). These orders were adopted each school year and published both on the Ministry’s website and in the Official Gazette.",
"55. In addition, the Government argued that Ms Ádám and Mr Ambrus should have lodged their respective applications within six months of the date they had become aware for the first time of the final exam results, that is, 4 September 2014 and 10 July 2017 respectively. However, they had both failed to comply with the requisite time-limit.",
"(ii) The applicants",
"56. The applicants argued that they had become directly affected by the measures complained of each time they had obtained the results of their baccalaureate. Consequently, they had all respected the six-month time-limit set by the Convention for lodging their applications.",
"(b) The Court’s assessment",
"(i) General principles",
"57. The object of the six-month time-limit under Article 35 § 1 of the Convention is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Lekić v. Slovenia [GC], no. 36480/07, § 64, 11 December 2018).",
"58. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009).",
"(ii) Application of those principles to the facts of the case",
"59. Turning to the facts of the present case, the Court notes that the applicants sat the baccalaureate exam on several occasions, as permitted by domestic law (see Article 78 § 6 of the NEA, cited in paragraph 12 above). As the Court has established above that the applicants had no effective domestic remedy at their disposal to complain about the alleged violation of their rights (see paragraph 53 above), the six-month time-limit started running from the date they became aware of the effect of the measure complained of and the prejudice they had incurred because of it (see the case-law quoted in paragraph 58 above), that is, the date they received the results of their most recent baccalaureate.",
"60. In this regard, the Court notes that all six applicants observed the six-month requirement (see Appendix I below). In particular, Ms Ádám, who sat the baccalaureate most recently in August and September 2017, lodged her application on 24 November 2017. Mr Petres, who sat the baccalaureate in June and July 2018, lodged his application on 15 October 2018. Mr Bakos, who sat the baccalaureate in June and July 2018, lodged his application on 18 October 2018. Mr Ambrus, who sat the baccalaureate most recently in August and September 2018, lodged his application on 19 October 2018. Mr Forika, who sat the baccalaureate most recently in August and September 2018, lodged his application on 8 November 2018. Mr Maxem, who sat the baccalaureate most recently in August and September 2018, lodged his application on 13 November 2018.",
"61. Consequently, the Court dismisses the Government’s preliminary objection under this head.",
"Actio popularis",
"(a) The parties’ submissions",
"(i) The Government",
"62. The Government contended that the applications with the Court represented an actio popularis in so far as the applicants had complained not only about their personal situation but also of “decades-long discrimination of all pupils not sitting their final exams in Romanian, that is, all national minorities living in Romania”. Moreover, the applicants had not explained concretely what consequences they had personally endured because of the manner in which the baccalaureate was organised. They reiterated that the Court’s role was not to examine in the abstract the compatibility of domestic legislation with the Convention.",
"(ii) The applicants",
"63. The applicants refuted the Government’s allegations. They pointed out that they had all sat the baccalaureate on several occasions and had suffered the consequences of the measures taken by the authorities in this regard. They had not raised the issue in general terms, although it was true that many Hungarian pupils were discriminated against in the context of the final high school exams.",
"(b) The Court’s assessment",
"(i) General principles",
"64. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, with further references).",
"(ii) Application of those principles to the facts of the present case",
"65. The Court notes that the applicants did not pass the baccalaureate. Their grievances concerned the consequences they had personally suffered because they had failed it (see paragraph 30 above). As to the assertions highlighted by the Government as constituting an actio popularis, they are no more than supporting arguments on the merits of the alleged violation and shall be treated by the Court as such.",
"66. In addition, the mere fact that others might also be potentially affected by the measures complained of is not an element that would qualify the current applications as being an actio popularis.",
"67. Accordingly, the Court dismisses this preliminary objection.",
"Other grounds for inadmissibility",
"68. Lastly, the Court notes that the case is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsSubmissions by the parties",
"Submissions by the parties",
"Submissions by the parties",
"(a) The applicants",
"69. At the outset, the applicants reiterated that they had not only complained about the time allowed for rest and preparation, but also about the fact that the exams they had had to sit in Romanian language and literature had been very difficult.",
"70. Relying on D.H. and Others v. the Czech Republic ([GC], no. 57325/00, §§ 175-81, ECHR 2007 ‑ IV), the applicants reiterated that the State had a duty to protect the security, identity and lifestyle of ethnic minorities, not only for the purpose of safeguarding the interests of the minorities themselves, but to preserve a cultural diversity of value to the whole community. In this connection they argued that the manner in which the final exams were organised had a far greater prejudicial effect on the Hungarian community than on the majority of Romanian pupils.",
"71. They did not question the usefulness of learning the Romanian language or of having their knowledge of it tested in the final exams. They argued that in the final exams, all students should pass a literature exam in their mother tongue. Testing their level of Romanian on an equal footing with Romanian native speakers was, in their view, a clear case of discrimination. On this point, they argued that the Romanian language and literature exams were difficult, even for native speakers. They sometimes involved complicated and outdated language which had nothing to do with the practical use of the Romanian language and their real needs. Moreover, they were living in a region where Romanian was not spoken in daily life, which meant that they had no possibility of practising their language skills and preparing for the exams. They contended that as non-native speakers, their level would never be as high in Romanian as that of their native speaker peers. In their view, this difference should be acknowledged both in the baccalaureate and the university entry exams.",
"72. The applicants further refuted the Government’s argument (see paragraph 80 below) that since it had been their choice to be taught in Hungarian, they had to accept the consequences of that choice. In their view, advising Hungarian native speakers to be taught in Romanian in order to alleviate the burden of their baccalaureate amounted to an agenda of forced assimilation. They reiterated that the possibility to be taught in Hungarian was essential for maintaining their Hungarian ethnic identity.",
"73. The applicants argued that the authorities’ plans to adapt the curriculum for learning Romanian, albeit laudable, did not benefit them in any way, as it only concerned pupils currently in middle school (see paragraph 78 below).",
"74. The applicants also rejected the Government’s assertion that the Hungarian language certificate was an added benefit for Hungarian students (see paragraph 81 below). They pointed out that they had failed the baccalaureate, and had thus been denied any possibility of continuing their studies. Moreover, the Government had failed to provide any statistical evidence to demonstrate that pupils belonging to a national minority would benefit in any way from passing the exam in Romanian literature.",
"75. Lastly, they pointed out that their situation should be examined in comparison with that of pupils who had taken the baccalaureate in the same years as them.",
"(b) The Government",
"76. The Government pointed out that not all pupils belonging to the Hungarian minority chose to study in Hungarian. The choice of language of education belonged to pupils, and there was no obligation for an ethnic Hungarian to enrol in a school where teaching was done in Hungarian.",
"77. The Government contended that the treatment that the applicants complained of did not amount to discrimination. It was provided for by law, in so far as the number of exams, timetable and administration of the final exams were set by the NEA (see paragraph 12 above). The implementation of these provisions was done by the Ministry of Education, whose orders could be contested before the administrative courts (see paragraph 37 above).",
"78. The NEA also dictated that Romanian language and literature be taught throughout the school curriculum, following school programmes and textbooks specific for each minority. Moreover, in 2016 the Ministry of Education and representatives of the Hungarian community had started developing Romanian language and literature textbooks designed specifically for Hungarian pupils. The exercise had started with middle grade classes and would continue at secondary level.",
"79. Moreover, the treatment in question pursued a legitimate aim, that of ensuring equal opportunities for all nationals, be they ethnic Romanians or members of ethnic minorities. Eliminating any of these language exams would cause irreparable damage to students in terms of social integration.",
"80. As to the justification for this difference, the Government pointed out at the outset that the additional exams taken by the applicants had been the consequence of their own choice to receive education in their mother tongue. They had freely chosen to be taught in Hungarian. This choice had not been imposed on them by the authorities, nor had it been a consequence of their ethnicity. The possibility to receive education in Hungarian was offered by the State by virtue of the principle of non ‑ discrimination on grounds of ethnicity and in order to help those belonging to an ethnic minority to preserve their cultural identity and language. The Government pointed out that the choice for pupils to receive education in their mother tongue did not come without consequences: it imposed on the authorities a corresponding obligation to assess the language skills acquired by pupils.",
"81. The fact that the applicants had sat additional exams in their mother tongue had brought extra benefits for them. They had received language certificates, which opened up more career possibilities than those available to pupils who did not obtain such certificates.",
"The Court’s assessment",
"(a) General principles",
"82. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that of Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). The Court therefore sees no reason to depart from the settled interpretation of “discrimination”, in applying the same term under Article 1 of Protocol No. 12 (see Sejdić and Finci, cited above, § 55).",
"83. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12.",
"84. In this vein, the Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali, cited above, §§ 133 and 135, 19 December 2018).",
"85. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017).",
"86. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even if not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic, cited above, § 175, with further references).",
"87. Thus, the Contracting States must refrain from subjecting persons or groups to different treatment where, under the above principles, such treatment would qualify as discriminatory. However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different. The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see J.D. and A. v. the United Kingdom, cited above, § 85).",
"88. For instance, the Court considered that applicants who had been in particular need of protection for reasons directly related to their status – severe disability and gender respectively – and who, if left without protection, had risked exceptional hardship or their personal safety, had been in a significantly different situation with respect to the measure complained of (the reduction of the Housing Benefit – see J.D. and A. v. the United Kingdom, cited above, § 92). Furthermore, an applicant who had been convicted for refusing to wear military uniform was in a significantly different situation to someone convicted of a serious crime because, unlike the latter, the applicant had been convicted for exercising his freedom of religion and not of an offence involving dishonesty or moral turpitude (see Thlimmenos, cited above, §§ 44 and 47). The Court also found that, with regard to eligibility for a residence permit for family reasons, a homosexual couple was in a significantly different situation to heterosexual partners who had decided not to regularise their situation (see Taddeucci and McCall v. Italy, no. 51362/09, § 85, 30 June 2016).",
"89. On the other hand, the Court was not convinced that, because of its doctrine concerning worship in its temples, an applicant religious organisation had been in a significantly different position from other churches for the purposes of tax exemptions (see The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, no. 7552/09, § 31, 4 March 2014). Likewise, the Court considered that biological children and foster children were in a relevantly similar objective situation for the purpose of the manner in which a survivor’s pension had been divided between them (see Ruszkowska v. Poland, no. 6717/08, § 55, 1 July 2014).",
"90. Moreover, the Court reiterates that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. In that regard, the Court has stated that national authorities by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001 ‑ I, and Muñoz Díaz v. Spain, no. 49151/07, §§ 48-49, ECHR 2009). The same is true with regard to the necessity to treat groups differently in order to correct “factual inequalities between them” (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011, and Guberina v. Croatia, no. 23682/13, § 72, 22 March 2016).",
"(b) Application of those principles to the facts of the present case",
"91. The Court notes that the basis of the applicants’ complaint is that pupils belonging to national minorities who received secondary education in their mother tongue were severely impacted by the content of the school curriculum and the timetable of the baccalaureate. The importance for members of a national minority to study the official language of the State and the corresponding need to assess their command of it in the baccalaureate is not called into question (see paragraphs 28 and 71 above).",
"92. Turning to the facts of the case under examination, the Court observes that the applicants, who are all ethnic Hungarians who attended school in their mother tongue, had to sit the same exams as their Romanian peers. In addition, they also had to sit, in the same time period, two additional exams, to test their knowledge of Hungarian language and literature, in order to pass the baccalaureate. It can be inferred that the scheduling of the baccalaureate placed the applicants at a disadvantage. They were thus treated in the same manner as Romanian pupils sitting it, even though their situation was different. It remains to be determined whether the difference was sufficiently significant to reach the threshold implied by Article 1 of Protocol No. 12 (see paragraphs 87 to 89 above) and whether the State had a positive obligation under that provision to take specific measures to alleviate the applicants’ additional burden.",
"93. At the outset, it needs to be borne in mind that the setting and planning of the school curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era (see, mutatis mutandis, and in the context of Article 2 of Protocol No. 1, Folgerø and Others v. Norway [GC], no. 15472/02, § 84 (g), ECHR 2007 ‑ III). Therefore, the Court considers that it is not its role to replace the State in deciding what subjects will be tested in the baccalaureate or the order and pace of the exams. It reiterates that a certain margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate the local needs and conditions (see the case ‑ law cited in paragraph 90 above and also, mutatis mutandis, Efstratiou v. Greece, 18 December 1996, § 29, Reports of Judgments and Decisions 1996 ‑ VI).",
"94. The Court notes that there is an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see, in particular, the Council of Europe’s Framework Convention for the Protection of National Minorities, cited in paragraph 26 above), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community (see Chapman, § 93; D.H. and Others v. the Czech Republic, § 181; and Muñoz Díaz, § 60, all cited above). Moreover, the rights of persons belonging to national minorities to use their mother tongue and receive education in this language, as well as the State’s corresponding obligation to protect and encourage the development of minority languages, are among the principles safeguarded by the international instruments on the matter, to which the respondent State is a party (see paragraphs 26 and 27 above).",
"95. Domestic law, in particular the NEA, provides that people belonging to a national minority are entitled to receive education in their mother tongue (see paragraphs 10 and 17 above), in compliance with the State’s international obligations. In addition, Article 46 of the NEA (cited in paragraph 11 above) sets out several measures to be taken by the State in the field of education in order to accommodate the needs of pupils belonging to national minorities, notably a different curriculum for studying Romanian language and literature, and different exams in that subject in the baccalaureate for pupils studying in their mother tongue.",
"96. It is noteworthy that in 2016 the authorities started taking steps towards bringing the school curriculum for national minorities in line with the legislative requirements by developing, together with representatives of the Hungarian community, Romanian language and literature textbooks designed specifically for Hungarian pupils (see paragraphs 73 and 78 above).",
"97. Moreover, in its decision of 5 March 2014 the NCCD suggested possible avenues to be explored for the reorganisation of the baccalaureate exams in order to accommodate the specific needs of pupils studying in their mother tongue (see paragraph 20 above).",
"98. That said, the Court must reiterate that its task is not to assess and review in abstract the State’s policy in this field, but to consider the consequences that this policy had for the applicants, in the specific circumstances of their situation, that of pupils who had to pass two additional baccalaureate exams because they received secondary education in their mother tongue",
"99. In this context, the Court accepts that, in line with the domestic legislative requirements and international obligations outlined in paragraphs 94 and 95 above, the aim of this policy was to create equal opportunities for all pupils to obtain education in their mother tongue (see paragraph 79 above). It was thus designed to provide education in the applicants’ mother tongue while at the same time ensuring sufficient command and knowledge of Romanian language and literature. The manner in which the authorities chose to test that knowledge and the level of difficulty of the exam – which the applicants submitted had been high not only for them but also for their Romanian peers (see paragraph 71 above) – falls undoubtedly within the scope of the margin of appreciation of each State.",
"100. Although it took the authorities some time to start implementing the measures set out in the NEA (see paragraphs 9 and 78 above), and they may have not yet fully explored all the possibilities provided for by law and pointed out by the NCCD, the Court cannot but take note of the progress already made. Moreover, while the delays in the implementation of some measures may have had a certain impact on the applicants’ situation, bearing in mind the margin of appreciation in the matter, these setbacks alone cannot allow the Court to find, and the applicants did not provide any evidence in this respect, that the content of the curriculum in itself imposed an excessive burden on them for the purposes of Article 1 of Protocol No. 12 to the Convention.",
"101. The Court will now turn to the matter of the sequence of the baccalaureate exams. It notes at the outset that irrespective of the arrangements made by the State, the fact remains that pupils in the applicants’ situation have to pass two more exams than pupils studying in Romanian. That is however the direct and inevitable consequence of the applicants’ conscious and voluntary choice to study in a different language and the State offering them such an opportunity. In this connection, the Court observes that the law recognises a right but does not impose an obligation on pupils belonging to a national minority to study in their mother tongue (see paragraphs 11 and 76 above).",
"102. Moreover, the timetable for the baccalaureate exams is set by order of the Ministry of Education at the beginning of each school year and does not seem to differ significantly from one year to another (see paragraphs 7 and 12 above, and Appendix II below). The pupils concerned thus have sufficient time to prepare both academically and mentally for the exams.",
"103. In addition, the Court is not persuaded that the schedule of the baccalaureate, viewed as a whole, imposed an excessive burden on the applicants. In fact, the Court cannot but note that in the reference years when the applicants sat the baccalaureate, the period allotted for the exams (six for pupils studying in Romanian and eight for pupils studying in a different language) varied. It was nine days in September 2017; eleven days in 2014, September 2015 and September 2018; twenty-four days in June 2017; and twenty-five days in June 2015 (see Appendix III below). Moreover, the timetable for the June to July 2018 exam session created less pressure for the applicants sitting the baccalaureate at that time, as the oral exams were scheduled to take place four months before the written ones (see Appendix III below). It cannot be inferred that the applicants had on average significantly less time to rest than their Romanian peers.",
"104. The same conclusion remains valid even when the alleged imbalance is regarded exclusively from the standpoint of the exams that the applicants had to take over consecutive days, unlike their Romanian peers, who had a day of rest in between. Given the particular circumstances, the Court is not convinced that the inconvenience suffered by the applicants was so significant as to reach the threshold of Article 1 of Protocol No. 12 to the Convention.",
"105. On this point, the Court also notes that the statistics provided by the Government indicate, for the period 2013 to 2018, similar success rates in the final baccalaureate exams for all pupils (see paragraph 8 above).",
"106. The Court is satisfied that there is nothing in the case to allow it to conclude that the applicants were deprived in practice of a real choice to receive education in their mother tongue or that the State had an agenda of forced assimilation, as argued by the applicants (see paragraph 72 above).",
"107. The foregoing considerations are sufficient to enable the Court to conclude that the consequences for the applicants of the choice of language of study and the authorities’ organisation of the education in a minority language and baccalaureate exams, albeit relevant to the alleged difference in treatment they experienced vis-à-vis their Romanian peers, did not place them in a different situation that was sufficiently significant for the purposes of Article 1 of Protocol No. 12 to the Convention. Therefore, there is no need to assess the justification provided by the State in this regard.",
"108. There has accordingly been no violation of Article 1 of Protocol No. 12 to the Convention."
] |
35 | X and Others v. Albania | 31 May 2022 | The applicants, Albanian nationals of Roma and Egyptian ethnic origin forming different households, complained of discrimination and segregation in their children’s education owing to the over-representation of Egyptian and Roma pupils in the “Naim Frashëri” elementary school in Korça which their children attended. They submitted that they had complained to the authorities concerning that situation and that the Commissioner for the Protection from Discrimination had subsequently ordered that the Ministry of Education and Sport take “immediate measures to improve the situation and change the ratio” between Roma/Egyptian and other pupils attending the school”. The applicants alleged that the situation has not been resolved. | The Court held that there had been a violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention in the present case, finding that the State had failed to implement desegregating measures. It recalled in particular that it had already found a violation of the prohibition of discrimination in a similar context in Lavida and Others v. Greece (see above). It concluded that likewise, in the instance case, the delays and the non-implementation of appropriate desegregating measures could not be considered as having had an objective and reasonable justification. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further noted that Albania had to take measures to end the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school as ordered by the Commissioner’s decision. | Children’s rights | Education | [
"The authorities’ findings in respect of the “Naim Frashëri” elementary school",
"2. The applicants live in Korça, a city in the southeast of Albania counting 76,000 inhabitants. According to local government data, during the 2018/19 academic year around 1,200 Roma and Egyptian children were enrolled in the city’s mandatory education system.",
"3. The Roma and Egyptian pupils in the “Naim Frashëri” elementary school in Korça during the 2012/19 academic years accounted for 89 to 100 % of the school’s pupils. As of 2012 the Government have implemented a food assistance programme whereby food packages have been provided to Roma and Egyptian pupils attending that school with the aim of increasing school attendance rates of the children of those communities. The children applicants attended that same school.",
"4. In a general recommendation of 11 September 2014, the Commissioner for the Protection from Discrimination (the “Commissioner” or “Commissioner against Discrimination”), a domestic body established by the Anti ‑ Discrimination Act (Law no. 10221 of 4 February 2010) recommended to the Ministry of Education and Sport (“Ministry”) to have due regard of the ratio between Roma/Egyptian and other pupils in schools and take measures to avoid creating schools attended only by pupils of the said communities.",
"5. On 3 July 2015 the ERRC lodged a complaint with the People’s Advocate, which is also an institution established to uphold the rights of citizens against public authorities, alleging that the over-representation of Roma/Egyptian pupils in the “Naim Frashëri” school amounted to segregation. Having considered the matter and having heard the Ministry’s position that the over-representation in question was an unintentional effect of the food assistance programme, on 12 August 2015 the People’s Advocate recommended to the Ministry to take proactive actions to end the discrimination of the said pupils. In addition, the People’s Advocate also recommended that the Ministry establish a mechanism for monitoring the implementation of desegregation measures in all schools.",
"6. Following a similar complaint by the ERRC and another organisation, to which the Ministry responded once again that the over-representation complained of was unintentional, on 22 September 2015 the Commissioner against Discrimination delivered a binding decision finding that the Roma and Egyptian children of the “Naim Frashëri” school were suffering indirect discrimination on account of their over-representation in the school.",
"7. Relying on Article 18 of the Constitution which prohibits discrimination (see paragraph 17 below) and the Court’s judgment in the case of Lavida and Others v. Greece (no. 7973/10, 30 May 2013), the Commissioner found that the placement of Roma pupils in a special school segregates them and does not allow for their integration into mainstream social activities. Moreover, noting that the Ministry was the public body responsible for admissions at the school, the Commissioner pointed out that under Section 7 (1) of the Anti-Discrimination Act (see paragraph 23 below) both actions and inactions that gave rise to a breach of the equality between persons could amount to discrimination. Finally, the Commissioner noted that under Section 18 (1) of the Anti-Discrimination Act (see paragraph 24 below) the Council of Ministers and the Ministry were under an obligation to take positive measures against discrimination related to the right to education.",
"8. Accordingly, the Commissioner ordered the Ministry to take “immediate measures to improve the situation and change the ratio” between Roma/Egyptian and other pupils attending the school.",
"Implementation of the Commissioner’s decision",
"9. On 14 December 2015 the Ministry informed the Commissioner that it would implement several desegregating measures in the school, including the expansion of the food assistance programme to pupils from all communities and to four additional schools in the area, followed by the merger of the “Naim Frashëri” school with three local schools.",
"10. On 22 February 2017 the Government expanded the food support programme to all the pupils of the “Naim Frashëri” school (Decision of the Council of Ministers no. 132 of the same date).",
"11. On 14 April 2017 the Ministry informed the ERRC that the school continued to be attended almost exclusively by Roma and Egyptian pupils. They further explained that as the academic year was ongoing, it was inappropriate to implement the merger between different schools at that time and assured them that at the beginning of the new academic year in September, the segregation in the school would come to an end. In addition, the Ministry stated that they would request the competent authorities to organise the renovation of the school.",
"12. The renovation work was carried out during the 2018/19 academic year and was completed in September 2019.",
"13. On 6 November 2019 the Government submitted before the Court that for the 2019/20 academic year the Roma/Egyptian pupils accounted for 90% of the pupils at “Naim Frashëri” school.",
"14. On 25 February 2020 the Ministry informed the State Attorney that the percentage of Roma/Egyptian pupils at the school was 60%. They also stated that the merger of the school with neighbouring schools had not been implemented due to the school’s renovation work.",
"15. The applicants contested the above figure and submitted that in reality many non-Roma/Egyptian pupils had been administratively registered in the “Naim Frashëri” school, but in fact attended other nearby schools.",
"Other events",
"16. On 16 December 2015 the Commissioner delivered a decision finding that the “Avdyl Avdia” elementary school in Berat was attended exclusively by Roma pupils which amounted to discrimination contrary to the Anti-Discrimination Act. She accordingly ordered the Ministry to arrange for the transportation and attendance of the school’s pupils to another nearby school. In its correspondence of 14 April 2017 to the ERRC (see paragraph 11 above), the Ministry stated that the “Avdyl Avdia” school had been closed in line with the Commissioner’s decision and the transportation arrangements were being addressed by the relevant municipality."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"Domestic lawsConstitution",
"Constitution",
"Constitution",
"17. Article 18 of the Constitution provides:",
"“1. All are equal before the law.",
"2. No one may be unfairly discriminated against for reasons such as gender, race, religion, ethnicity, language, political, religious or philosophical beliefs, economic condition, education, social status, or parentage.",
"3. No one may be discriminated against for the reasons mentioned in paragraph 2 without a reasonable and objective justification.”",
"18. Article 57 provides that everyone has the right to education.",
"Education Act of 2012 (Law no. 69/2012 of 21 June 2012 on the pre-university educational system in the Republic of Albania)",
"19. The general principles applicable to educational institutions are provided under section 6 of Education Act of 2012. Paragraph 4 of that section reads:",
"“In educational institutions the principle of inclusiveness of pupils shall be applied.”",
"Anti-Discrimination Act of 2010",
"20. The Anti-Discrimination Act (Law no. 10221 of 4 February 2010), as in force prior to its amendment by Law no. 124/2020 of 15 October 2020, provided for the principle of equality before the law in connection to everyone’s gender, race, ethnicity, and a number of other grounds (section 1).",
"21. Section 3 (3) of the Act defined “indirect discrimination” as a form of discrimination that occurs when a provision, criterion or practice which appears neutral, puts a person or group of persons in an unfavourable situation on the grounds set forth in section 1 of the Act, in comparison to another person or group of persons and when that provision, criterion or practice is not justified by a legitimate aim, or when the means of achieving that aim either are not appropriate or are not necessary and proportionate to the situation that caused it.",
"22. Section 3 (9) of the Act defined “organisations with legitimate interests” as organisations that are registered in the Republic of Albania and have as their declared object of activity the protection of human rights, or that offer assistance to victims of discrimination. Section 33 (1) of the Act provided that an organisation with legitimate interests that claims discrimination on behalf of a person or a group of persons may file a complaint with the Commissioner together with any available evidence.",
"23. Section 7 (1) of the Act provided:",
"“Any action or inaction of public authorities or natural or legal persons that participate in the public or private sectors, which creates the basis for a breach the [principle of] equality towards a person or group of persons, or which exposes them to an unfair and unequal treatment, when they are in the same or similar circumstances as another person or group of persons, amounts to discrimination.”",
"24. Section 18 (1) of the Act reads:",
"“The Council of Ministers and the Minister of Education and Science are responsible for taking measures of a positive nature to combat discrimination in relation to the right to education.”",
"25. Sections 21 and 22 of the Act provided for the establishment of the Commissioner against Discrimination, an independent public authority tasked to ensure effective protection against discrimination. The Commissioner was to be appointed by Parliament for a five-year term which could be renewed once (sections 23 and 25). Under section 26 of the Act the Commissioner was to report to Parliament by way of an annual report on its activities.",
"26. The Commissioner is competent to hear discrimination complaints by natural persons or organisations, carry out administrative enquiries and impose administrative sanctions (section 32 (1) (a), (b) (c) and (ç)).",
"27. Moreover, under section 32 (1) (f) the Commissioner is competent to publish reports and put forward recommendations for any matter related to discrimination.",
"28. Pursuant to section 32 (3), in reviewing the complaints submitted before her, except when a specific procedure was provided under the act, the Commissioner had to apply the Code of Administrative Procedure and she was to decide by way of a decision that would set forth the appropriate measures to be taken and a time-limit for their implementation (section 33 (10)).",
"29. Under section 33(11) the Commissioner can also issue a fine to the party that fails to implement its decisions.",
"30. Section 34 of the act provided that anyone who had been discriminated against had the right to seek damages before the competent court independently from whether he or she had filed a complaint with the Commissioner.",
"Law no. 124/2020 of 15 October 2020 amending the Anti-Discrimination Act of 2010",
"31. Section 3 (16) of the amended Anti-Discrimination Act defines “segregation” as a form of discrimination which occurs in cases where a person or group of persons are separated from others without an objective and reasonable justification, and this separation is made on the grounds of at least one of the reasons provided in section 1 of the Act.",
"32. Section 33 (18) of the amended Anti-Discrimination Act provides that the Commissioner’s decision may be challenged before the competent court pursuant to rules applicable to administrative disputes.",
"Code of Administrative Procedure",
"33. Article 18 of the Code of Administrative Procedure of 1999 (Law no. 8485 of 12 May 1999, as amended), as in force until 28 May 2016, sanctioned the principle of judicial control over administrative decisions.",
"34. Article 130 and 131 provided that administrative acts were enforceable upon their entry in force, except when an appeal having suspensory effect had been lodged.",
"Other materials",
"35. In its 2015 annual report to the Parliament, the Commissioner stated that she had acted as a defendant in fourteen judicial proceedings where the parties had challenged its decisions before the courts, the latter being administrative acts.",
"36. By way of a decision no. 1072 of 23 December 2015 the Council of Ministers adopted the “National Plan for the Integration of Roma and Egyptians in the Republic of Albania 2016-2020”. One of the strategic objectives of the plan was the increase of the Roma and Egyptians’ access to education without discrimination or segregation.",
"37. The Council of Ministers’ decision no. 682 of 29 September 2017, as amended, set forth, amongst others, the procedures pursuant to which public funds were to be used for the purpose of transporting students into their respective schools if they resided a certain distance from them.",
"Council of Europe materials",
"38. In a report of 15 February 2006 on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (CommDH(2006)1), the Council of Europe Commissioner for Human Rights noted that segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. The Commissioner further noted that segregation excluded Roma children from mainstream society at the very beginning of their lives, increasing their risk of being caught in the vicious circle of marginalisation.",
"39. In Recommendation CM/Rec(2009)4 on the education of Roma and Travellers in Europe (adopted on 17 June 2009 at the 1061st meeting of the Ministers’ Deputies), the relevant parts of which have been set out in Oršuš and Others v. Croatia ([GC], no. 15766/03, §§ 79-80 ECHR 2010), the Committee of Ministers recommended that where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures.",
"40. In Resolution 1927 (2013) of 23 April 2013 on ending discrimination for Roma children, the Parliamentary Assembly of the Council of Europe urged member States to end school segregation and promote inclusion by, amongst others, requiring local municipalities to produce desegregation plans (§ 7.3.3).",
"41. On 12 September 2017 the Council of Europe Commissioner for Human Rights published a position paper [1] on fighting school segregation in Europe through inclusive education. The paper provided a number of recommendations to address school segregation and achieve inclusive education including, amongst others, the adoption of desegregation strategies, regulating and monitoring school admissions and defining socially balanced school districts.",
"42. The relevant extract of the Report (CommDH(2018)15) of 13 September 2018 by the Commissioner for Human Rights of the Council of Europe, following her visit to Albania from 21 to 25 May 2018, reads as follows:",
"“While noting with satisfaction that the principle of inclusive education and the prohibition of discrimination in education are enshrined in Albanian legislation, the Commissioner is concerned about the lack of inclusion of some Albanian children, in particular Roma children [...], in mainstream education.”",
"43. The Report on Albania of the European Commission against Racism and Intolerance (ECRI) (sixth monitoring cycle), adopted on 7 April 2020 and published on 2 June 2020, contains the following passages:",
"“46. In their report [...], the authorities state that segregation of Roma and Egyptian children in schools does not exist. However, in recent years segregation has been reported in some schools, namely in Korca, Morava and Elbasan. Roma NGOs also mentioned an alleged case in Shkodra in this regard. ECRI visited Korca and had meetings with the city’s administration and representatives of the Roma community. It understands that the situation regarding segregation in the schools is not one created intentionally, but the result of a traditionally very high concentration of Roma and Egyptians in particular neighbourhoods of the city (neighbourhoods 6, 8 and 17). In this area, the three existing schools have a majority of Roma and Egyptian pupils with 530 out of 700 (according to self-declaration, since no ethnicity is recorded in the civil registry). The overall average by school is 70%: Naim Frasheri (95%), Asdreni (51%), Ismail Qemali (67%). ECRI noted a constructive and pragmatic approach by the Mayor and his team to resolve this issue. In response to complaints about its sub-standard conditions, €250 000 have been spent on renovating and refurbishing the Naim Frashëri school, which as a result is now considered to be among the best in the city in terms of material infrastructure. Furthermore, as concerns the ethnic make-up of the pupils, the municipal administration is considering merging two of the three schools so that none has a higher ratio than 75% of Roma or Egyptian children. Apparently, a similar attempt to mix pupils is considered in Shkodra, for example by providing transport to different school districts [footnote references omitted].",
"47. ECRI recommends that the authorities closely monitor the situation regarding de facto structural segregation of Roma and Egyptian pupils in schools and assist, if necessary, local authorities in finding workable solutions to address this problem.”",
"44. In its General Policy Recommendation No. 13 on combating antigypsyism and discrimination against Roma, adopted on 24 June 2011 and amended on 1 December 2020, the ECRI recommended that the governments of member States of the Council of Europe take urgent measures, including legal and political ones, to put an end to the segregation at school which Roma children are subjected to, and integrate them into schools attended by pupils from the majority population (§4 (d)).",
"European commission progress reports",
"45. The European Commission issues annual progress reports on countries which wish to accede to the European Union. The reports analyse, amongst other things, the capacity of such countries to implement European standards.",
"46. In the 2014 report on Albania (SWD(2014) 304) the European Commission stated that “Roma and Egyptian children are still not fully integrated in the education system which occasionally leads to segregation and exclusion” (page 62).",
"47. The 2016 report (SWD(2016) 364) stated that “[s]chool segregation is a matter of serious concern” (page 68). A similar finding appears in the 2018 report (SWD(2018)151) (page 32) where the European Commission added that Albania should “tackle segregation in the education field for vulnerable groups, in particular for Roma and Egyptians” (page 25), as well as in the 2019 report (SWD(2019) 215) (page 32), the 2020 report (SWD(2020)354) (page 38) and the 2021 report (SWD(2021)289) (page 36).",
"Other international materials",
"48. The United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination was adopted in New York on 21 December 1965 and came into force in respect of Albania on 11 May 1994. Articles 2 and 3 are worded as follows:",
"Article 2",
"“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:",
"(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;",
"(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organisations;",
"(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;",
"(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation;",
"(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organisations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.",
"2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”",
"Article 3",
"“States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”",
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"49. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment pursuant to Rule 42 § 1 of the Rules of the Court.",
"Preliminary issues",
"50. The Court notes in respect of the first application, no. 73548/17, that applicants nos. 14 to 18 informed the Court that they wished to withdraw from the application. Applicants nos. 16, 17 and 18 subsequently lodged the second application, no. 45521/19.",
"51. Accordingly, having regard to Article 37 § 1 (a) of the Convention, the Court concludes that it is no longer justified to continue the examination of application no. 73548/17 insofar as it concerns applicants nos. 14 to 18. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the application.",
"52. In view of the above, it is appropriate to strike out the part of application no. 73548/17 insofar as it concerns applicants nos. 14 to 18, without prejudice to the second application, no. 45521/19 which was subsequently lodged with the Court by applicants nos. 16, 17 and 18.",
"ALLEGED VIOLATION OF ARTICLE 1 OF protocol No. 12 to THE CONVENTION",
"53. The applicants complained under Article 1 of Protocol No. 12 to the Convention that they were discriminated against in their right to an inclusive education as a result of the authorities’ failure to implement desegregating measures to address the over-representation of Roma/Egyptian pupils in the “Naim Frashëri” school.",
"54. Article 1 of Protocol No. 12 to the Convention, reads as follows:",
"“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.",
"2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”",
"55. Protocol No. 12 to the Convention was ratified by Albania on 26 November 2004 and entered in force in respect of that country on 1 April 2005.",
"AdmissibilityThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"56. The Government submitted that the recommendations of the People’s Advocate and the Commissioner, as well as the latter’s decision of 22 September 2015, were insufficient to conclude that the applicants had exhausted domestic remedies which could be exhausted only by lodging a discrimination claim with domestic courts pursuant to Section 34 of the Anti-Discrimination Act (see paragraph 30 above). They also submitted a number of domestic judgments which had recognized discrimination claims and had awarded damages to plaintiffs.",
"57. The applicants contested that view and submitted that the domestic judgments relied on by the Government were issued in cases where there was a dispute about whether the plaintiffs had suffered from discrimination. They argued that the Commissioner against Discrimination was the competent domestic authority to hear discrimination complaints and reiterated that neither the Ministry nor any other party had challenged the conclusion of the Commissioner that the pupils of the school were subjected to discrimination. In view of the absence of a dispute over that point, they expected the authorities to implement the decision of 22 September 2015 of the Commissioner against Discrimination and argued that it would have been futile to start additional judicial proceedings for the purpose of obtaining another finding that the discrimination of pupils in the school must come to an end. In addition, the applicants submitted that their primary purpose was to put the school segregation to an end rather than obtain damages.",
"58. Finally, the applicants maintained that the public interest litigation initiated by ERRC before the Commissioner against Discrimination corresponded to the complaint that they have brought before the Court.",
"The Court’s assessment",
"59. The Court reiterates that the rationale behind the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Convention institutions. It is based on the assumption, reflected in Article 13, that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary nature of the Convention machinery (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V ). Indeed, the Court has frequently held that, in accordance with the principle of subsidiarity, it is appropriate that the national courts should initially have the opportunity to determine questions of compatibility of the domestic law with the Convention and that, if an application is nonetheless subsequently brought to it, the Court should have the benefit of the views of the national courts, being in direct and continuous contact with the driving forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).",
"60. At the same time, there is a need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13). The rule of exhaustion is neither absolute nor capable of being applied automatically; in monitoring compliance with this rule it is essential to have regard to the circumstances of the individual case (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009).",
"61. Turning to the present case, the Government did not develop in detail their argument that only judicial proceedings are capable of satisfying the requirement to exhaust domestic remedies. However, it appears that their argument was based on the allegation that the Commissioner and its decisions had an administrative – rather than judicial – nature.",
"62. In this connection, the Court notes that under Albanian law the Commissioner against Discrimination is an independent authority with the power to issue binding decisions on both public and private entities and to order anti-discrimination measures to be implemented by such entities (see paragraph 28 above). The Commissioner’ decisions can be challenged before the courts (see paragraphs 32 and 35 above). In the absence of any appeal by the Ministry, the Commissioner’s decision of 22 September 2015 became final and enforceable (see paragraph 34 above, and, mutatis mutandis, Ramadhi and Others v. Albania, no. 38222/02, § 49, 13 November 2007 where the Court held that irrespective of whether the final decision to be executed takes the form of a court judgment or a decision by an administrative authority, domestic law as well as the Convention provides that it is to be enforced).",
"63. In response to the Government’s argument that the applicants could have sought damages before domestic courts, the Court reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see A.H. and Others v. Russia, nos. 6033/13 and 15 others, § 347, 17 January 2017). In the present case the crux of the applicants’ complaints concerned the authorities failure to put an end to an ongoing situation, namely the segregation of their school. Accordingly, a remedy that offered the prospect of financial compensation alone, without preventing the continuation of the alleged violation, cannot be considered effective (see, mutatis mutandis, Patranin v. Russia, no. 12983/14, § 86, 23 July 2015 ). In this connection, the Government failed to explain why a discrimination court proceeding had been necessary when the authorities did not dispute the discrimination of the applicants. Similarly, the government did not explain why the desegregation measures which all parties considered to be necessary would have been implemented more effectively if ordered by a court judgment compared to an independent administrative authority such as the Commissioner (see, mutatis mutandis, Lavida and Others v. Greece, no. 7973/10, §§ 47-48, 30 May 2013).",
"64. The Court further notes that the Government did not take issue with the fact that it was the ERRC – rather than the applicants – who complained to the Commissioner against Discrimination about the situation in the school. In view of the Commissioner’s decision to recognize ERRC’s standing before that authority, the Court has no reason to doubt that domestic law provided for the ERRC’s right to initiate the proceedings in question on behalf of the Roma and Egyptian pupils attending the “Naim Frashëri” school (see, mutatis mutandis, Kósa v. Hungary (dec.), no. 53461/15, §§ 56-57, 21 November 2017, and J.M.B. and Others v. France, nos. 9671/15 and 31 others, § 214, 30 January 2020). Neither was it disputed before the Court that the subject matter of ERRC’s complaint and the ensuing Commissioner’s decision of 22 September 2015 corresponded to the individual situation and specific complaints of the applicants before the Court.",
"65. Accordingly, the applicants were not required to file a discrimination claim, which had essentially the same objective as ERRC’s action before the Commissioner (see Kozacıoğlu, cited above, § 40), before domestic courts. The Government’s non-exhaustion objection is therefore dismissed.",
"66. The Court notes that the applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.",
"MeritsThe parties’ submission",
"The parties’ submission",
"The parties’ submission",
"67. The applicants submitted that their segregation in the “Naim Frashëri” school amounted to discrimination on the grounds of their ethnicity prohibited by Article 1 of Protocol No. 12 to the Convention and that the authorities had not implemented the desegregating measures that they themselves had proposed such as the merger between different schools to obtain more inclusive classes.",
"68. The Government submitted that the segregation complained of was the result of the demographic changes in the areas around the school where many non-Roma/Egyptian inhabitants had moved out of the area and many Roma/Egyptian inhabitants had moved in.",
"69. As regards the food support scheme, the Government stated that such support had been requested by many representatives of the Roma and Egyptian inhabitants, including the applicants’ representative. They further stressed that the authorities had not prevented the applicants from attending a different school or the other pupils from attending the “Naim Frashëri” school. Therefore they had not contributed in any way to the situation complained of.",
"70. Furthermore, the Government submitted that they had taken several measures to implement the Commissioner’s decision of 22 September 2015, including the adoption of the National Plan for the Integration of Roma and Egyptians in the Republic of Albania 2016 – 2020 (see paragraph 36 above), the extension of the food support scheme to all school pupils and the reconstruction of the school which ended in time for the 2019/20 academic year.",
"71. In view of the absence of any discriminatory intent or action by the authorities and the measures adopted to address the situation, the Government concluded there had been no violation of Article 1 of Protocol No. 12 to the Convention.",
"Third party’s submissions in respect of the application no. 73548/17",
"72. The third party intervener – T’Reja Center – primarily made submissions on the general principles within which to examine applications and provided a number of observations on the situation of Roma and Egyptian children in Albania.",
"73. In particular, they submitted that school segregation is one of the most severe forms of discrimination. In their view segregation of Roma/Egyptian pupils undermined their ability to learn in a diversified environment and to acquire essential life skills through contact with other pupils.",
"74. Moreover, T’Reja Center also submitted statistics which in their view showed that segregation of Roma/Egyptian pupils existed in numerous schools in Albania.",
"The Court’s assessment",
"(a) Relevant principles",
"75. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009, and Napotnik v. Romania, no. 33139/13, § 69, 20 October 2020).",
"76. It can further be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see, for example, ibid., § 70).",
"77. In this vein, the Court has established that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see Horváth and Kiss v. Hungary, no. 11146/11, § 101, 29 January 2013).",
"78. The Court has also held that the coexistence of members of society free from racial segregation is a fundamental value of democratic societies (see Vona v. Hungary, no. 35943/10, § 57, ECHR 2013).",
"79. As regards the particular sphere of school segregation, the Court has adopted a number of judgments which concerned different contexts. The case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV) concerned a situation where a nationwide practice of placing a disproportionate number of Roma children in schools for pupils with learning difficulties amounted to discrimination based on the applicants’ ethnic origin.",
"80. In Oršuš and Others v. Croatia ([GC], no. 15766/03, ECHR 2010) the applicants were Croatian nationals of Roma ethnic origin who had been placed in separate Roma-only classes from time to time during their education on account of their insufficient command of the Croatian language. The Court found a violation of the prohibition of discrimination on account of, amongst others, the authorities’ failure to take all the necessary steps to ensure the applicants’ speedy progress in learning the language and their subsequent integration into mixed classes.",
"(b) Application of the principles to the present case",
"81. The Court notes at the outset that the right to inclusive education, in the enjoyment of which the applicants alleged to have been treated differently, was provided for by domestic law (see paragraphs 18 and 19 above).",
"82. The Government did not dispute that the applicants’ situation amounted to segregation and that desegregation measures were called for, neither had these points been disputed by the Ministry in the domestic proceedings (see paragraphs 5, 6 and 62 above), their only arguments being that that situation had been unintentional.",
"83. In that connection, the Court notes that the “Naim Frashëri” school was not created exclusively for Roma/Egyptian children. Moreover, the applicants did not allege that their segregation was intentional. However, the Court has already held in the past that discrimination that is potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII) and does not necessarily require discriminatory intent ( D.H. and Others v. the Czech Republic, cited above, § 184).",
"84. In the Court’s view, the salient question is therefore whether the Government complied with their positive obligation to take steps to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation in the school (see paragraphs 24 and 77 above and, mutatis mutandis, Horváth and Kiss, cited above, § 116 and § 127 ) thereby breaking their circle of marginalization and allowing them to live as equal citizens from the early stages of their life (see paragraph 38 above). In this regard, the Government stated that the authorities took immediate action to address the applicant’s segregation. However, the Court notes that the decision to remove the ethnicity criterion for the pupils that benefited from the food support programme, in an effort to attract pupils of all ethnicities in the school, was adopted on 22 February 2017 (see paragraph 10 above), almost one and a half years after the Commissioner’s decision of 22 September 2015. The Government did not put forward an explanation for this delay, or the delay in the implementation of the second measure ostensibly carried out to diversify the student body of the school, namely the renovation of the school building which ended in September 2019, four years after the Commissioner’s decision. In the Court’s view, these delays were incompatible with the time sensitivity of a situation where children were segregated and with the Commissioner’s decision that measures be taken “immediately” (see paragraph 8 above).",
"85. Most importantly, the Government did not set forth any objective reason for failing to implement two of the measures that were discussed in the Ministry’s letters of 14 December 2015 and 14 April 2017 (see paragraphs 9 and 11 above), namely the extension of the food support programme to four additional schools in the area – which could presumably encourage some of the Roma/Egyptian pupils of the school to move to other schools – and the merger of the “Naim Frashëri” school with three other schools (see paragraphs 9 and 11 above). Both these measures were likely to have a more immediate beneficial effect on the Roma and Egyptian children. In this regard, the Court is unable to accept the authorities’ justification that the merger was not implemented due to the reconstruction of the “Naim Frashëri” school, as the reconstruction work lasted only for a limited period of time (see paragraph 12 above). By as late as the 2019/20 academic year the Roma/Egyptian pupils continued to represent 90% of the schools’ pupils.",
"86. In view of the Government’s argument that the segregation complained of was caused by the concentration of the Roma/Egyptian population in particular neighbourhoods near the segregated school, the authorities’ proposal to merge the latter with non-segregated schools in the city appeared a very pertinent solution indeed. Such a merger could have contributed to the creation of schools where the ratio between Roma/Egyptian and other pupils was reasonably proportional to the city-wide ratio for elementary schools. The authorities had already implemented similar solutions in respect of segregated schools elsewhere in the country where in addition they had also provided transportation for the pupils (see paragraphs 16, 37 and 43 above). While it is not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation, it is nevertheless difficult to understand the reasons why this approach was not implemented in the present case too.",
"87. The Court observes that it has already found a violation of the prohibition of discrimination in a similar context where the State had failed to implement desegregating measures (see Lavida and Others, cited above, § 73 ). It considers that in the present case too, the delays and the non-implementation of appropriate desegregating measures cannot be considered as having had an objective and reasonable justification.",
"88. There has accordingly been a violation of Article 1 of Protocol No. 12 to the Convention.",
"APPLICATION OF ARTICLES 41 and 46 OF THE CONVENTIONArticle 41 of the Convention",
"Article 41 of the Convention",
"Article 41 of the Convention",
"89. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"90. The applicants claimed 4,500 euros (EUR) for each child applicant in respect of non-pecuniary damage.",
"91. The Government submitted that the claim is unreasonable and unsubstantiated.",
"92. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Lavida and Others, cited above, § 80), the Court considers it reasonable to award EUR 4,500 per applicants’ household in respect of non-pecuniary damage.",
"Costs and expenses",
"93. The applicants did not submit any claim for costs and expenses. Accordingly, the Court does not award them any sum under that head.",
"Default interest",
"94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.",
"Article 46 of the Convention",
"95. Article 46 of the Convention provides:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”",
"96. The Court reiterates that, by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that where the Court finds a breach in a judgment it imposes a legal obligation on the respondent State, whether or not the applicant has requested just satisfaction, to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress the effects as far as possible. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46, provided that such means are compatible with the conclusions and the spirit of the Court’s judgment (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 221, 20 September 2018, with further references). In view of the violation found in the present case, the Court considers that measures to be taken must ensure the end of the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school, as ordered by the Commissioner’s decision of 22 September 2015."
] |
36 | S.L. and J.L. v. Croatia | 7 May 2015 | This case concerned a deal to swap a seaside villa for a less valuable flat. The Social Welfare Centre had to give its consent to the deal as the owners of the villa – the two applicants – were minors. The Social Welfare Centre agreed to the proposed swap without rigorously examining the particular circumstances of the case or the family. The lawyer acting on behalf of the children’s parents also happened to be the son-in-law of the original owner of the flat. Before the Court, the applicants complained that the Croatian State, through the Social Welfare Centre, had failed to properly protect their interests as the owners of a villa which was of significantly greater value than the flat they had been given in exchange. | The central question in this case was whether the State took the best interests of the children into account in accepting the property swap. As minors their interests were supposed to be safeguarded by the State, in particular through the Social Welfare Centre and it was incumbent on the civil courts to examine the allegations concerning the swap agreement which raised the issue of compliance with the constitutional obligation of the State to protect children. The Court held that in the applicants’ case there had been a violation of Article 1 (protection of property) of Protocol 1 to the Convention, finding that the domestic authorities had failed to take the necessary measures to safeguard the proprietary interests of the children in the real estate swap agreement or to give them a reasonable opportunity to effectively challenge the agreement. | Children’s rights | Protection of property (Article 1 of Protocol No. 1) | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants are sisters who were born in 1987 and 1992 respectively and live in P.",
"A. Background to the case",
"6. In June 1997 the applicants, represented by their mother V.L., concluded a real estate agreement with B.P. in which they expressed their intention of buying a villa of 87 square metres and the adjacent courtyard of 624 square metres in V., a seaside neighbourhood of P. (hereinafter: the “house”). The agreement stated that the house was in poor condition as certain individuals had lived there for several years without any legal basis and had ruined the furniture and installations.",
"7. The agreement was formalised in a real estate purchase contract of 17 December 1997 by which the applicants acquired ownership of the house for an amount of 450,000 Croatian kunas (HRK).",
"8. On 26 November 1999 the applicants registered their ownership of the house and the plot of land in the land register in equal shares.",
"B. The real estate swap agreement",
"9. On an unspecified date V.L. requested from the relevant Social Welfare Centre (hereinafter: the “Centre”) the authorisation to sell the house owned by the applicants, such authorisation being required under the relevant domestic law in cases where a parent wishes to dispose of a child ’ s property (see paragraph 39 below).",
"10. As a result of that request, on 10 April 2000 V.L. and her husband Z.L. ( the father of the second applicant) were interviewed at the Centre. They stated that they had bought the house in 1997 for HRK 450,000 and that they had already spent approximately 80,000 Deutsche marks (DEM) renovating it. However, the house required some further investment for which they lacked the necessary means and thus they intended to sell it and to live with one of their parents. They further explained that they owned a retail business and that they had no problems with their children, who both had excellent marks at school. V.L. and Z.L. also promised that they would open a bank account on behalf of their children, into which they would deposit the money from the sale of the house. They pointed out that they had contacted a real estate agency, which was looking for a potential buyer. They also agreed that V.L. would conclude the sale contract once they had managed to find a buyer.",
"11. In February 2001 Z.L. was arrested and held in detention in connection with a suspected attempted murder and the unlawful possession of firearms. He was later indicted on the same charges in the P. County Court ( Županijski sud u P. ), which on 10 October 2001 found him guilty and sentenced him to six years ’ imprisonment. During the criminal proceedings his defence lawyer was M.I, a lawyer practising in P.",
"12. On 15 October 2001 M.I. submitted a request to the Centre seeking authorisation for a real estate swap agreement between the applicants and a certain D.M., who was in fact M.I. ’ s mother-in-law. He provided powers of attorney signed by V.L., Z.L. and E.B. ( the father of the first applicant) authorising him to obtain the Centre ’ s consent to a swap real estate agreement.",
"13. Together with his request, M.I. provided a draft swap agreement stipulating that D.M. would transfer to the applicants her four - room flat of 78. 27 square metres, situated on the fourth floor of a residential building in P. (hereinafter: the “flat”), while the applicants would transfer their ownership of the house to D.M. The draft swap agreement also stated that the values of the properties to be exchanged were the same and that the parties waived their right to object that they had sustained damage as a result of giving the exchanged property away at below half of its real value. M.I. also submitted another document, a supplement to the swap agreement, in which the parties to that agreement acknowledged that V.L. and Z.L. had invested significant sums of money in the house and that, on the basis of the amounts shown on certain available invoices, D.M. would compensate them for those investments.",
"14. V.L. was invited to the Centre for an interview on 23 October 2001 in connection with M.I. ’ s request. She stated that her husband had meanwhile been imprisoned and that their retail business had started to go badly, leading her to close it in August 2001. She also explained that she was unemployed and that this situation had affected the applicants, who were no longer doing so well at school. She further stated that she had been obliged to borrow money to pay the bills for the house and that the overall situation had prompted her and Z.L. to exchange the house for a flat in P. with the additional obligation on the part of the flat- owner to pay them the difference in value between the two properties, amounting to some 100,000 DEM according to her estimate. Lastly, V.L. pointed out that E.B., the father of the first applicant, had given his consent to the swap agreement. She also undertook to register the ownership of the flat in the applicants ’ names.",
"15. On 13 November 2001 the Centre gave its authorisation for the swap agreement, whereby the applicants would transfer their ownership of the house to D.M. while the latter would transfer her ownership of the flat and a garage to the applicants. The decision drafted by the Centre specified that V.L. was obliged to provide the Centre with a copy of the swap agreement.",
"16. In its statement of reasons behind the decision, the Centre pointed out that it had taken note of the powers of attorney provided to M.I. by the applicants ’ parents, V.L. ’ s statement of 23 October 2001, birth certificates for the applicants and land registry certificates for the properties, and the draft swap agreement. It had also noted the fact that Z.L. had been convicted at first-instance of the offence of attempted murder and unlawful possession of firearms. Based on this information, the Centre concluded that the swap agreement was not contrary to the best interests of the applicants since their property rights would not be extinguished or reduced as they would become the owners of a flat which would provide fully suitable living accommodation.",
"17. On the same day, the Centre gave its authorisation for the supplementary document to the swap agreement by virtue of which D.M. would pay the applicants 5,000 DEM each on account of the difference in value between the exchanged properties. As a condition of this decision, V.L. was obliged to provide the Centre with a bank statement attesting that the payment had been made. In its statement of reasons, the Centre referred to a request made by V.L. for the conclusion of a supplement to the swap agreement and the statement she had given to the Centre. The Centre also found that this would not be contrary to the interests of the applicants.",
"18. The above two decisions issued by the Centre on 13 November 2001 were forwarded to the lawyer M.I.",
"19. On 16 December 2001 the applicants, represented by V.L., concluded the real estate swap agreement with D.M. before a Public Notary in P., and the applicants thereby transferred their ownership of the house to D.M. while the latter transferred her ownership of the flat and the garage to the applicants. The swap agreement contained a clause under which the parties agreed that there was no difference in the value of the exchanged properties, and that they had no further claims on that account. It also set down the value of the properties at some HRK 400,000.",
"20. Based on this contract, the applicants and D.M. duly registered their ownership of the properties with the land registry.",
"21. On 28 December 2001 lawyer M.I. submitted to the Centre a certificate from the land registry showing that the applicants had registered their ownership of the flat and bank statements showing that they had received the amount of 5,000 DEM each.",
"22. On 2 and 12 March 2002 the P. Tax Office ( Ministarstvo financija, Porezna uprava ) declared a tax obligation of HRK 20,000 for each of the parties ‒ based on the declared value of the transaction involved in the swap agreement ‒ which was divided by half in respect of the applicants, who were thus obliged to pay HRK 10,000 each.",
"C. The applicants ’ civil proceedings",
"23. On 17 November 2004 the applicants, represented by Z. L. as their legal guardian, brought an action against D.M. in the P. Municipal Court ( Općinski sud u P. ), asking the court to declare the swap agreement null and void ( ništav ).",
"24. During the proceedings the applicants argued that the swap agreement had effected the exchange of the ownership of the house ‒ which comprised two flats, each measuring 87 square metres, was only five minutes ’ walk from the sea and was worth approximately 300,000 euros (EUR) ‒ for a flat and a garage worth in total no more than EUR 70,000. Given that at the time when the contract was concluded they were only fourteen and nine years old, the Centre should have defended their rights and should not have given its consent to a swap agreement of that kind. In this respect they pointed out that section 265 § 1 of the Family Act listed specific instances in which the property of a minor could be disposed of, and that no such instance had existed in their case. Moreover, the Centre had failed to carry out an on-site inspection or to commission an expert report which would have allowed it to estimate the value of the house and adopt a proper decision concerning the request for authorisation of the swap agreement. The applicants therefore considered that, by failing to take such vital measures, the Centre had allowed an unlawful and immoral property exchange to be executed. In their view, this had resulted in ab initio invalidity of the exchange. The applicants also pointed out that their legal guardian Z.L. had not been party to the discussions concerning the swap agreement. They therefore proposed that the trial court examine several witnesses, including the participants to the swap agreement, the employees of the Centre, the first applicant ‒ who was by that time already seventeen years old ‒ and several other witnesses who were aware of the circumstances of the case, and commission an expert report establishing the value of the properties.",
"25. On 1 March 2005 the P. Municipal Court dismissed the applicants ’ request to take any of the proposed evidence on the grounds that the case could be decided on the basis of the documents from the case file.",
"26. On 15 April 2005 the P. Municipal Court dismissed the applicants ’ civil action. It argued that it was not in a position to re-examine the Centre ’ s decision to authorise the swap agreement, since that was an administrative decision which could only have been challenged in administrative proceedings. Thus, given that such a decision existed, the P. Municipal Court could not find the swap agreement to be unlawful or contrary to the morals of society. It also pointed out that the swap agreement could possibly be only a voidable contract ( pobojan ) but no claim to that effect had been made by the applicants.",
"27. The applicants challenged that judgment by means of an appeal lodged before the P. County Court, arguing that the first-instance court had failed to examine any of their arguments and had thus erred in its decision concerning the validity of the swap agreement.",
"28. On 19 March 2007 the P. County Court dismissed the applicants ’ appeal as ill-founded, endorsing the reasoning of the first-instance court.",
"29. The applicants then lodged an appeal on points of law before the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 8 June 2007. The second applicant was represented by V.L., and the first applicant, having in the meantime reached the age of majority, was able to conduct the legal action herself.",
"30. In their appeal on points of law the applicants argued, inter alia, that the P. Municipal Court had failed to examine any of the relevant evidence and had incorrectly assessed the circumstances of the case. In particular, it had failed to take into account that the Centre had negligently allowed the swap agreement to be concluded without taking into account the value of the properties and the nature of their family circumstances at the time, namely the fact that Z.L. was in detention and that V.L. was known as a person with a problem of drug abuse.",
"31. On 19 December 2007 the Supreme Court dismissed the applicants ’ appeal on points of law as ill-founded and endorsed the decisions of the lower courts, which found that the civil courts were not in a position to re-examine the Centre ’ s final administrative decision allowing the conclusion of the swap agreement. Moreover, it did not appear to the Supreme Court that the Centre had failed in its protection of the best interests of the applicants.",
"32. The applicants then lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ) reiterating their previous arguments before the lower courts. The second applicant was represented by V.L.",
"33. On 9 June 2010 the Constitutional Court declared the applicants ’ constitutional complaint inadmissible as manifestly ill-founded.",
"D. Other relevant information",
"34. A report by the Ministry of Social Policy and Youth ( Ministarstvo socijalne politike i mladih ) of 30 January 2014 submitted to the Court suggests that the Centre was not aware of V.L. ’ s drug abuse problem nor had it been alerted concerning M.I. ’ s conflict of interest.",
"35. According to a report by the Ministry of Health ( Ministarstvo zdravlja ) of 7 February 2014, V.L. started her drug addiction therapy on 12 December 2003 and terminated it in 2004. She then started again in 2007 and she was still undergoing therapy at the present time.",
"36. The information available from the e-land registry concerning property in Croatia shows that the house and the land on which it is located measure 225 square metres with an adjacent courtyard of 476 square metres, all of which is registered in the name of D.M. as owner.",
"III. Nature and scope of the obligations of States parties",
"13. Each State party must respect and implement the right of the child to have his or her best interests assessed and taken as a primary consideration, and is under the obligation to take all necessary, deliberate and concrete measures for the full implementation of this right.",
"14. Article 3, paragraph 1, establishes a framework with three different types of obligations for States parties:",
"(a) The obligation to ensure that the child ’ s best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children;",
"(b) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child ’ s best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.",
"(c) The obligation to ensure that the interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.”",
"2. Charter of Fundamental Rights",
"44. The Charter of Fundamental Rights of the European Union (2010/C 83/02) in its relevant part provides:",
"Article 24 The rights of the child",
"“ ...",
"(2) In all actions relating to children, whether taken by public authorities or private institutions, the child ’ s best interests must be a primary consideration.",
"... ”"
] | [
"II. RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW",
"A. Relevant domestic law",
"1. Constitution",
"37. The relevant provision of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010, 05/2014 ) reads :",
"Article 48",
"“The right of ownership shall be guaranteed ...“",
"Article 63",
"“The State shall protect ... children and youth ... ”",
"Article 65",
"“ Everyone shall have the duty to protect the children ... ”",
"2. Civil Obligations Act",
"38. The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 111/1993, 3/1994, 7/1996, 91/1996 and 112/1999) provide:",
"Permissible [legal] basisSection 51",
"“(1) Each contractual obligation shall have a permissible [legal] basis [ causa ].",
"(2) A basis is not permissible if it contravenes the Constitution, fundamental principles of law, or morals.",
"...”",
"Contract null and void on grounds of its [legal] basisSection 52",
"“Where there is no [legal] basis [for a contract] or where its [basis] is not permissible, the contract is null and void.”",
"NullitySection 103",
"“A contract which is contrary to the Constitution, fundamental principles of law, or morals is null and void, unless there is some other [applicable] sanction or the law provides differently in a particular case.”",
"Unlimited right to plead nullitySection 110",
"“The right to plead nullity shall be inextinguishable.”",
"Voidable contractSection 111",
"“A contract shall be voidable where one of its parties lacked legal capacity, where it was concluded on the basis of misconceptions, or where so provided under this Act or other special legislation.”",
"Termination of the rightSection 117",
"“(1) The right to claim that a contract is voidable shall lapse one year after it was learned that there are reasons making it voidable ...",
"(2) In any case, that right shall lapse three years after conclusion of the contract.”",
"Obvious disproportionality in amount givenSection 139",
"“(1) If at the time of the conclusion of the contract there was an obvious disproportionality in the amount given, the damaged party may claim that the contract is voidable if that party did not know, or had no reason to know, of its real value.",
"(2) The right to claim that the contract is voidable shall lapse one year after its conclusion.",
"(3) Waiver of this right shall be without any legal effect.”",
"3. Family Act",
"39. The relevant part of the Family Act ( Obiteljski zakon, Official Gazette no. 162/1998), as in force at the relevant time, provided:",
"Section 121",
"“(1) Legal capacity shall be obtained by the individual ’ s coming of age or by the conclusion of a marriage before legal adulthood.",
"(2) A person who is eighteen years old is legally an adult.",
"... ”",
"Section 192",
"“A special guardian shall be appointed to a child who is in the care of [biological] or adoptive parents, in the event of a dispute between the child and the parents, for the purposes of concluding a contract between them, and in other cases where the interest of the child runs contrary to the interest of the parents.”",
"Section 265",
"“(1) Subject to the consent of the competent Social Welfare Centre, parents may dispose of or encumber the property of a child who is a minor for the purposes of the child ’ s maintenance, medical treatment, upbringing, schooling, education or other important needs.",
"(2) The consent of the Social Welfare Centre is also necessary for the taking of certain procedural actions before the court or another state body concerning the child ’ s property.”",
"4. Real Estate Transfer Tax Act",
"40. The relevant provision of the Real Estate Transfer Tax Act ( Zakon o porezu na promet nekretnina, Official Gazette no. 69/1997) provides:",
"Section 9",
"“(1) The tax basis for a real estate transaction is the market value of the real estate at the moment of its acquisition.",
"(2) The market value of the real estate is considered to be the value which the real estate has or could have on the market at the time of its acquisition. The market value of the real estate shall be established, in principle, on the basis of the document of acquisition.",
"... ”",
"5. Civil Procedure Act",
"41. The relevant part of the Civil Procedure Act (Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, 57/2011, 148/2011, 25/2013 and 89/2014) provides:",
"Section 428a",
"“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.",
"(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.",
"(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”",
"B. Relevant international law",
"1. Convention on the Rights of the Child",
"42. The relevant provision of the United Nations Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Croatia on 8 October 1991 (Official Gazette – International Agreements no. 12/1993), provides:",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"... ”",
"43. The Committee on the Rights of the Child has recently explained the content of this obligation in its “ General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)” (CRC/C/GC/14, 29 May 2013) in the following terms:",
"“ A. The best interests of the child: a right, a principle and a rule of procedure",
"1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child, and applies it is a dynamic concept that requires an assessment appropriate to the specific context.",
"...",
"4. The concept of the child ’ s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. The Committee has already pointed out that “an adult ’ s judgment of a child ’ s best interests cannot override the obligation to respect all the child ’ s rights under the Convention.” It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the “child ’ s best interests” and no right could be compromised by a negative interpretation of the child ’ s best interests.",
"6. The Committee underlines that the child ’ s best interests is a threefold concept:",
"(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.",
"(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child ’ s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.",
"(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child ’ s best interests; what criteria it is based on; and how the child ’ s interests have been weighed against other considerations, be they broad issues of policy or individual cases.",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION",
"45. The applicants complained about the failure of the State to protect their property interests in the alleged unlawful and immoral real estate swap agreement. They relied on Article 1 of Protocol No. 1, which reads:",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"A. Admissibility",
"1. Abuse of the right of individual application",
"(a) The parties ’ arguments",
"46. The Government submitted that in the applicants ’ initial application to the Court the latter had stated that the house measured 174 square metres, whereas in fact it measured only half that, namely 87 square metres. They had also failed to disclose that they had received the additional payment of 10,000 DEM corresponding to their parents ’ investment in the house, and had falsely stated that V.L. had been a registered drug addict at the time relevant to the events. In the Government ’ s view, all these facts had been relevant to the case and, by failing to disclose them correctly, the applicants had therefore abused their right of individual application.",
"47. The applicants maintained their complaints, explaining, in particular, that the house in fact consisted of two floors and that the ground floor measured approximately 80 square metres. Thus, the Government ’ s reference to 87 square metres applied only in relation to the ground plan but not the overall surface area of the house, which they considered to be relevant. They also pointed out that this could have been seen from the changes to that effect in the land register.",
"(b) The Court ’ s assessment",
"48. The notion of “abuse”, within the meaning of Article 35 § 3 (a) of the Convention, must be understood as any conduct on the part of the applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). An application may exceptionally be rejected on that ground if, among other things, it is knowingly based on untrue facts (see, as a recent example, F.A. v. Cyprus (dec.), no. 41816/10, §§ 39, 40, 42 and 43, 25 March 2014; and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014 ), the most egregious example being applications based on forged documents (see, for instance, Jian v. Romania (dec.), no. 46640/99, 30 March 2004; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; and Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007). However, any deliberate attempt to mislead the Court must be established with sufficient certainty (see, amongst many others, Gross, cited above, § 28).",
"49. In the case at issue the Court does not take the view that the applicants deliberately provided false information concerning the surface area of the house or the receipt of the additional payment, since this information was apparent from the documents available to the Court. In any event it forms part of the dispute between the parties as to whether or not there has been a breach of Article 1 of Protocol No. 1 in relation to the swap agreement. As such, it can be the subject of the parties ’ arguments and counter - arguments, which the Court can accept or reject, but cannot in itself be regarded as an abuse of the right of individual application (see Udovičić v. Croatia, no. 27310/09, § 125, 24 April 2014; and Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 185, 8 July 2014). This is also true in respect of the changes in the land register concerning the surface area of the property (see paragraph 36 above). Similarly, the Court notes that the question of whether V.L. ’ s drug abuse problem was known to the Centre is another contentious issue which had already been argued at the domestic level, and in any event does not appear central to the case (see paragraphs 30 and 32 above). Accordingly, irrespective of whether or not she had been registered as a drug addict in a particular database of the competent authorities, it cannot be said that the applicants abused their right of individual application by pursuing those arguments before the Court.",
"50. The Government ’ s objection should thus be rejected.",
"2. Non-exhaustion of domestic remedies",
"(a) The parties ’ arguments",
"51. The Government pointed out that the applicants ’ guardians, namely their parents, had failed to challenge on behalf of their children the Centre ’ s decision authorising the swap agreement, which they could have done through the available administrative remedies, thereby raising all their complaints concerning the aforementioned agreement. The decision authorising the swap agreement had been duly served on their representative and they had therefore been at liberty to challenge it before the competent bodies. Moreover, the applicants ’ parents had failed to lodge a civil claim in order to establish that the swap agreement was voidable, as provided under Article 139 of the Civil Obligations Act. Instead, they had erroneously lodged a civil action asking for the swap agreement to be declared null and void, which had prevented the domestic courts ‒ which held that the claim was ill-founded ‒ to reclassify their action as a claim under Article 139 of the Civil Obligations Act. In the Government ’ s view, their capacity for using such remedies had perhaps been hampered by the fact that Z.L. had been in detention at the time, but that could not explain his failure to undertake the necessary inquiries and actions concerning the swap agreement, or the failure of V.L. and E.B. to challenge the Centre ’ s decision and the conclusion of the swap agreement, as provided under the relevant domestic law.",
"52. The applicants considered that they had properly exhausted the domestic remedies, and maintained that it had been incumbent on the Centre to protect their interests in relation to the conclusion of the swap agreement, which it had failed to do. In particular, it had been impossible for them to lodge a complaint concerning the Centre ’ s decision authorising the swap agreement when the decision had been served exclusively on M.I., whose conflict of interest meant that he had no reason to complain about the aforementioned decision.",
"(b) The Court ’ s assessment",
"53. The Court considers that the question of the exhaustion of domestic remedies as argued by the parties should be joined to the merits, since it is closely linked to the substance of the applicants ’ complaints.",
"3. Conclusion",
"54. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ arguments",
"55. The applicants contended that it had been self- evident that the house had a significantly higher value than the flat which they had received from D.M. on the basis of the real estate swap agreement. They explained that the amount of HRK 450,000 (approximately EUR 60,000), for which their parents had bought the house, had not corresponded to its real value as they had bought it in 1997 ‒ in circumstances of post-war uncertainty ‒ from its previous owners, who had left Croatia and were living in Belgrade at the time. In any event, the applicants argued that it was undisputed that their parents had invested some 80,000 DEM (approximately EUR 40,000 ) in the house which, together with the amount which they had paid for it, amounted in total to some EUR 100,000. It had thus been unclear why the Centre had consented to a swap agreement by which they had received a flat worth approximately EUR 55,000. Moreover, the applicants took the view that the Centre had been well aware that their father had been in prison at the time, that their mother had had drug abuse problems, and that the lawyer M.I. had a conflict of interest. Nonetheless, the Centre had never attempted to interview their father nor had it commissioned any expert report assessing the value of the property or conducted an on-site inspection to assess all the circumstances of the property exchange. Similarly, the tax authorities had assessed the value of the property exchange solely on the basis of the value indicated in the swap agreement without carrying out any further inquiries. In these circumstances ‒ in which their parents had not been able to protect their rights and interests properly ‒ the applicants considered that the State authorities had been under an obligation to approach the case with the requisite diligence, taking into account the State ’ s incumbent duty to prevent any actions which could run contrary to the applicants ’ best interests.",
"56. The Government accepted that the domestic authorities had had a positive obligation to protect the best interests of the applicants, who had been only children at the time of the conclusion of the swap agreement. The Government, however, considered that the State authorities had duly complied with that obligation. The Government pointed out that the swap agreement had been concluded in very difficult circumstances for the applicants ’ family, given that at the time their father had been in detention pending criminal trial on very serious charges and their mother had had financial problems, all of which had affected the applicants themselves. Thus, the Centre ’ s decision authorising the swap agreement, which had been intended to secure a normal upbringing and education for the applicants, had been the only possible solution. As to the value of the properties, the Government pointed out that the flat was only about ten square metres smaller than the house and, unlike the house, needed no further investment or renovation. Moreover, the applicants had received an additional sum of 10,000 DEM on account of the difference in value between the two properties. In the Government ’ s view, the tax assessment of the value of the property exchange also suggested that neither party to the swap agreement had sustained any damage thereby. In any case, it was not only the value of the property which had been a relevant factor but rather the applicants ’ family circumstances had warranted the swap agreement to which the Centre had consented. The Government conceded that the Centre had failed to commission an expert report assessing the value of the house, but considered that there had been no reason to do so since the Centre had been able to assess the relevant facts on the basis of the documents in the case file. Moreover, the Centre had had no reason to doubt that the applicants ’ well-being was being safeguarded by V.L., as at the time nothing suggested that she had had any problems with drug abuse. Similarly, the Centre had had no reason to believe that the lawyer M.I. had been in the conflict - of - interest situation, as he had appeared before it as an authorised representative of the applicants ’ parents.",
"2. The Court ’ s assessment",
"(a) General principles",
"57. The Court notes at the outset that it is undisputed in the present case that the questions relating to the applicants ’ proprietary interests concerning the real estate swap agreement fall to be examined under Article 1 of Protocol No. 1.",
"58. While the essential object of Article 1 of Protocol No. 1 is to protect the individual against unjustified interference by the State with the peaceful enjoyment of his or her possessions, it may also entail positive obligations requiring the State to take certain measures necessary to protect property rights, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his or her effective enjoyment of his or her possessions (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII, and cases cited therein; Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004 ‑ XII; Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004-V; Păduraru v. Romania, no. 63252/00, § 88, ECHR 2005-XII; Bistrović v. Croatia, no. 25774/05, § 35, 31 May 2007; and Zolotas v. Greece (no. 2), no. 66610/09, § 47, CEDH 2013). In particular, allegations of a failure on the part of the State to take positive action in order to protect private property should be examined in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, which lays down the right to the peaceful enjoyment of possessions (see Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, § 213, 28 February 2012).",
"59. Although the boundaries between the State ’ s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition the applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the part of the State or in terms of interference by a public authority which needs to be justified, the criteria to be applied do not differ in substance. In both the case of an interference with the peaceful enjoyment of possessions and that of an abstention from action, a fair balance must be struck between the demands of the general interests of the community and the requirement to protect the individual ’ s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52, and Kotov v. Russia [GC], no. 54522/00, § 110, 3 April 2012).",
"60. In order to assess whether the State ’ s conduct satisfied the requirements of Article 1 of Protocol No. 1, the Court must have regard to the fact that the Convention is intended to guarantee rights that are practical and effective. It must go beneath superficial appearances and look into the reality of the situation, which requires an overall examination of the various interests in issue; this may call for an analysis of, inter alia, the conduct of the parties to the proceedings, including the steps taken by the State (see Beyeler v. Italy [GC], no. 33202/96, § 114, ECHR 2000 ‑ I; Novoseletskiy v. Ukraine, no. 47148/99, § 102, 22 February 2005).",
"61. Furthermore, the positive obligations imply, in particular, that States are obliged to provide judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any cases concerning property matters (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I, and Chadzitaskos and Franta v. the Czech Republic, nos. 7398/07, 31244/07, 11993/08 and 3957/09, § 48, 27 September 2012), including those between private parties (see Zehentner v. Austria, no. 20082/02, §§ 73 and 75, 16 July 2009). The proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see Jokela v. Finland, no. 28856/95, § 45, ECHR 2002 ‑ IV, and cases cited therein, and Zehentner, cited above, § 73).",
"62. The Court has also held that where children are involved, their best interests must be taken into account (see, for example, X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014). Indeed, the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere, which expresses one of the fundamental values of that Convention (see paragraphs 42 and 43 above ).",
"63. The Court ’ s case-law shows that these considerations are of significance also in the area of protection of the child ’ s proprietary interests that falls under Article 1 of Protocol No. 1. Thus, the Court must assess the manner in which the domestic authorities ’ acted in protecting the child ’ s proprietary interests against any malevolent or negligent actions on the part of others, including their legal representatives and natural parents (see Lazarev and Lazarev v. Russia (dec.), no. 16153/03, 24 November 2005).",
"(b) Application of these principles to the present case",
"64. The Court notes that the central question in the case at issue is the alleged failure of the State to take adequately into account the best interests of the applicants and to protect their property rights in the allegedly unlawful and immoral real estate swap agreement. While it is true that under the relevant domestic law the precondition for such an agreement was the consent of the Centre ‒ which could also raise an issue from the perspective of the State ’ s negative obligations (see Lazarev, cited above) ‒ the Court considers that, in the circumstances, it is more appropriate to analyse the case from the perspective of the State ’ s positive obligations, bearing in mind that the boundaries between the State ’ s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition and yet the applicable principles are nonetheless similar (see paragraph 59 above).",
"65. The Court observes that it is undisputed between the parties that prior to the impugned real estate swap agreement the applicants were the owners of the house in which they lived with their mother V.L., and their legal guardian Z.L., who is the father of the second applicant. The house was purchased by V.L. and Z.L. in 1997, although the ownership was from the very outset registered as vesting in both applicants in equal shares (see paragraph 8 above). It thus represented the applicants ’ possession legally protected from an unjustified interference or action by any third party, including the applicants ’ parents (see paragraph 37 above, Article 48 of the Constitution; and paragraph 39 above, section 265 of the Family Act).",
"66. The house is a seaside villa consisting of two floors plus an adjacent courtyard, located in a seaside neighbourhood of P. At the time of its acquisition by the applicants, the house was in poor condition. Thus, in addition to paying HRK 450,000 (approximately EUR 60,000) as the purchase price of the house, V.L. and Z.L. invested additional funds of 80,000 DEM (approximately EUR 40,000) in its renovation (see paragraphs 6-8, and 54-55 above).",
"67. The Court notes that the applicants ’ ownership of the house was exchanged for the ownership of a flat and a garage in P. The flat at issue is a four-room flat located on the fourth floor of a residential building in P. (see paragraph 13 above). This exchange occurred by the disposition of the applicants ’ parents and consent of the Centre which was involved in the case due to the fact that at the relevant time the first applicant was fourteen years old and the second applicant was nine years old, which meant that their parents could dispose of their property only with the consent of the Centre (see paragraph 39 above).",
"68. In this connection the Court observes a complex set of factual circumstances in which the real estate swap agreement took place. In particular, the Court notes that V.L. and Z.L. first approached the Centre in 2000 asking for its consent to the sale of the applicants ’ house, but without specifying to whom or for what amount (see paragraph 10 above). Meanwhile, V.L. and Z.L. fell into financial difficulties and Z.L. was arrested and held in detention pending criminal proceedings on charges of attempted murder and unlawful possession of firearms, for which he was sentenced to six years ’ imprisonment (see paragraphs 11 and 14 above).",
"69. It was within these circumstances that lawyer M.I., acting as the representative of V.L., Z.L. and E.B. ( the father of the first applicant), submitted a formal request to the Centre in October 2001 asking for consent to a real estate swap agreement whereby the applicants would transfer their house to a certain D.M. while she would transfer her ownership of the flat to the applicants.",
"70. The Court notes that the circumstances in which V.L., Z.L. and E.B. authorised M.I. to act on their behalf for the real estate swap agreement are not fully clear. M.I. had been the defence lawyer to Z.L. in the above-mentioned criminal proceedings against him, and D.M., who was the other party to the swap agreement, was M.I. ’ s mother-in-law. Furthermore, the powers of attorney in favour of M.I. were issued for the purpose of obtaining the Centre ’ s consent to an unspecified real estate swap agreement (see paragraph 12 above), and it does not appear that V.L., while interviewed at the Centre in connection with M.I. ’ s request, was ever presented with the specific details of the draft swap agreement in question (see paragraph 14 above). This, therefore, leaves unexplained the discrepancy in her statement as to the difference in value between the house and the flat ‒ estimated at some 100,000 DEM (see paragraph 14 above) ‒ and the amount of 10,000 DEM which the Centre eventually accepted as the amount that the applicants should receive in that regard (see paragraph 17 above).",
"71. It is equally unclear why the Centre, when giving its consent to the swap agreement, also mentioned a garage as forming part of the property exchange when no garage had been mentioned in the draft swap agreement submitted by lawyer M.I. (see paragraphs 13 and 15 above) and nothing to that effect had been mentioned by V.L. during her interview at the Centre. Moreover, the Centre did not interview any of the other parties with a direct interest in the swap agreement, namely Z.L. and E.B., which in turn raises the issue of whether, and to what extent, they were aware of the substance of the draft swap agreement in question.",
"72. The Court further observes that the draft swap agreement contained a clause stating that the value of the exchanged property was equal and that the parties waived their right to object that they had sustained damage as a result of giving the exchanged property away at below half of its real value. The draft swap agreement was supplemented by a document in which the parties thereto acknowledged that V.L. and Z.L. had made significant investments in the house and that D.M. would compensate for those investments in an unspecified amount (see paragraph 13 above).",
"73. Eventually, this draft was formalised in the swap agreement of 16 December 2001 under which the applicants transferred their ownership of the house to D.M. while she transferred her ownership of the flat and a garage to the applicants. This version of the swap agreement contains a clause under which the parties agreed that there was no difference in value between the exchanged properties, and that they had no further claims on that account. The value of the property exchange was assessed at some HRK 400,000 (see paragraph 19 above). Based on this swap agreement, the applicants acquired ownership of the flat and the garage in exchange for their ownership of the house. In addition, they each received 5,000 DEM on account of the difference in value between the two properties (see paragraphs 17, 20 and 21 above).",
"74. In these circumstances, in assessing the protection of the applicants ’ property rights under Article 1 of Protocol No. 1, the initial concerns are raised with regard to the actual relative value of the exchanged properties (see, inter alia, Lazarev, cited above). While, in principle, it is not for the Court to substitute itself for the national courts and to deal with such matters, it is unfortunate that the domestic courts dismissed all the applicants ’ evidence in the civil proceedings and thus left this question unexplained (see paragraph 25 above).",
"75. The Court therefore observes that it is undisputed between the parties that V.L. and Z.L. purchased the house for HRK 450,000 (approximately EUR 60,000) and that they additionally invested some 80,000 DEM in the house (approximately EUR 40,000). If nothing else, this fails to explain how the value of the house could have corresponded to the value of the flat and the garage ‒ estimated at a total of some HRK 400,000 (approximately EUR 55,000; see paragraphs 19 and 55-56 above) ‒ and an additional amount of 10,000 DEM (approximately EUR 5,000).",
"76. As to the Government ’ s reference to the tax assessment of the properties, the Court notes that the assessment was based only on the declared value of the transaction from the swap agreement (see paragraph 22 above) while Article 1 of Protocol No. 1 requires an assessment that goes beneath superficial appearances and looks into the reality of the situation (see, for example, Bistrović, cited above, § 35). Similarly, in view of the fact that the Centre took no action in assessing the reality of the circumstances of the property exchange (see paragraph 79 below), the Court cannot accept the Government ’ s argument that the flat needed no further investment or renovation and was in a better condition than the house. In these circumstances, given that the real estate swap agreement on the face of it raises an issue of the equality of giving which remained unexplained by the domestic authorities, it is difficult to adhere to the argument of equal value of the exchanged properties.",
"77. Against the above background, given that under the relevant domestic (see paragraph 39 above; section 265 of the Family Act) and international law ( see paragraph 62 above) the applicants, as children, could legitimately have expected the domestic authorities to take measures to safeguard their rights, the Court must assess whether the State authorities took the necessary measures to safeguard their proprietary interests in the event of the alienation of their property (see Lazarev, cited above). It will thus, in view of the principle that the best interests of the child must be taken as a primary consideration (see paragraphs 42 and 62 above), asses the actions taken by the Centre and the manner in which the competent domestic courts have approached the matter once it had been brought to their attention.",
"78. As to the conduct of the Centre, the Court notes that following M.I. ’ s request for authorisation of the swap agreement, the only action taken by the Centre in assessing the circumstances of the case was the questioning of V.L. (see paragraph 14 above). None of the other legal guardians was interviewed or informed about the draft swap agreement, though the Government have at no point suggested that it had not been possible to arrange their questioning.",
"79. Furthermore, the Centre failed to take any action to assess the actual condition or the value of the properties which could reasonably have been expected given the reality of the circumstances of the property exchange and the available information. In particular, the Centre had been informed of the purchase price of the house and the applicants ’ parents ’ further investment in its renovation, which, as noted above, amounted to some EUR 100,000 in total (see paragraph 66 above). In spite of this knowledge, without conducting further assessments through, for example, an on-site inspection or an expert report, the Centre accepted that the total value of the house could be assessed and the exchange carried out at a value of some EUR 60,000 in total (HRK 400,000 and 10,00 0 DEM; see paragraph 75 above).",
"80. The Court is likewise not persuaded that the Centre approached the applicants ’ particular family situation with the necessary diligence, in terms of assessing whether their proprietary interests were adequately protected against malevolent and/or negligent actions on the part of their parents (see Lazarev, cited above). In particular, the Centre was well aware of the fact that Z.L. was in detention and had been convicted on serious charges in criminal proceedings, and that V.L. was facing financial problems, all of which could have prompted them to take injudicious actions to the detriment of the applicants ’ property.",
"81. It this connection the Court observes that when V.L. was interviewed in the Centre she alleged poor financial situation of her family which allegedly affected the applicants ’ upbringing and results in school. Whereas this would be an aspect of importance in the assessment of the overall situation surrounding the impugned real estate swap agreement, the Court notes that the Centre took no further measures to verify or evaluate V.L. ’ s submissions concerning her financial situation, nor did it interview Z.L. or consult the relevant authorities concerning their particular situation. Thus, for instance, it did not accordingly verify the applicants ’ school results nor did it interview the applicants although the first applicant was at the time fourteen years old and thus could have provided relevant information concerning her family ’ s situation.",
"82. Moreover, the Centre gave no consideration to whether, in the particular circumstances of the case, a special guardian should have been appointed who could have impartially and independently protected the applicants ’ interests against all those involved in the impugned swap agreement, including their parents (see paragraph 39 above; section 192 of the Family Act ).",
"83. In these circumstances, the Court finds that the Centre did not asses adequately the applicants ’ family situation and the possible adverse impact of the impugned real estate swap agreement on their rights. It thereby failed to evaluate whether the circumstances of the real estate swap agreement complied with the principle of the best interests of the child in the applicants ’ particular case.",
"84. As to the civil proceedings before the competent courts in which the applicants challenged the validity of the real estate swap agreement, the Court firstly notes that the procedural position of the applicants, as minors, in the administrative proceedings before the Centre was fully in the hands of their legal representatives, V.L. and Z.L., who were represented by M.I., a lawyer who had a conflict of interest. The applicants were thus unable to take any autonomous procedural actions, such as challenging the Centre ’ s decision authorising the swap agreement (compare Zehentner, cited above, § 76), nor, as noted above, had the authorities appointed a guardian ad litem who could have independently protected the applicants ’ interests against all those involved in the swap agreement.",
"85. In these circumstances, the civil proceedings instituted by the applicants represented were the only means by which the circumstances of the property exchange could have been scrutinised. Nevertheless, even this possibility remained in the hands of their legal representatives at least until one of the applicants reached the age of majority and was able to take the legal actions herself, namely by lodging an appeal on points of law before the Supreme Court in 2007 (see paragraph 29 above).",
"86. However, the civil courts failed to appreciate the particular circumstances of the case and dismissed the applicants ’ civil action solely on the grounds that the Centre ’ s decision authorising the swap agreement had not been challenged in the administrative proceedings (see paragraphs 25-26, 28 and 31 above). The civil courts thereby ignored the applicants ’ position in the administrative proceedings ( see paragraph 83 above); the evidence concerning M.I. ’ s conflict of interest as well as the applicants ’ family circumstances, namely, at the time of the civil proceedings already disclosed, V.L. ’ s drug addiction and her financial problems; and Z .L. ’ s criminal conviction in the period leading up to the conclusion of the swap agreement. They also ignored the allegations of the Centre ’ s failure to protect the applicants ’ best interests in relation to the conclusion of the swap agreement.",
"87. In the Court ’ s view, all the allegations concerning the conclusion of the swap agreement ‒ if nothing else ‒ raised the issue of compliance with the relevant constitutional obligation of the State to protect children (see paragraph 37, Articles 63 and 65 of the Constitution ), as a result of which it was incumbent on the civil courts to examine the allegations carefully (see paragraph 38, sections 103 and 110 of the Civil Obligations Act ) in accordance with the principle of the best interests of the child (see paragraph 43 above).",
"88. Consequently, the Court sees no relevance in the civil courts ’ reference to the applicants ’ possibility of claiming that the swap agreement was perhaps only voidable ‒ on which the Government also relied (see paragraphs 2 6 and 51 above) ‒ since the applicants, as minors, were not able to lodge such a claim autonomously within the relevant statutory prescription period of one year after the conclusion of the swap agreement (see paragraph 38 above; sections 111 and 13 9 of the Civil Obligations Act; and compare Stagno v. Belgium, no. 1062/07, §§ 32-33, 7 July 2009). The Court therefore dismisses the Government ’ s preliminary objection concerning the non-exhaustion of domestic remedies (see paragraph 53 above).",
"89. Taking the above into account, the Court finds that the domestic authorities failed to take the necessary measures to safeguard the proprietary interests of the applicants, as children, in the impugned real estate swap agreement and to afford them a reasonable opportunity to effectively challenge the measures interfering with their rights guaranteed by Article 1 of Protocol No. 1.",
"90. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"91. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"92. In their initial application the applicants requested the Court to order restitutio in integrum and claimed the amount of “at least” 300,000 euros (EUR) in respect of pecuniary damage. They did not claim any costs and expenses.",
"93. The Government contended that claim.",
"94. The Court is of the view that the question of the application of Article 41, concerning pecuniary damage, is not ready for decision (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves that question and the further procedure and invites the Government and the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach."
] |
37 | Folgerø and Others v. Norway | 29 June 2007 (Grand Chamber) | In 1997 the Norwegian primary school curriculum was changed, with two separate subjects – Christianity and philosophy of life – being replaced by a single subject covering Christianity, religion and philosophy, known as KRL. Members of the Norwegian Humanist Association, the applicants attempted unsuccessfully to have their children entirely exempted from attending KRL. Before the Court, they complained in particular that the authorities’ refusal to grant them full exemption prevented them from ensuring that their children received an education in conformity with their religious and philosophical convictions. | The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 to the Convention. It found in particular that the curriculum of KRL gave preponderant weight to Christianity by stating that the object of primary and lower secondary education was to give pupils a Christian and moral upbringing. The option of having children exempted from certain parts of the curriculum was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life, and the potential for conflict was likely to deter them from making such requests. At the same time, the Court pointed out that the intention behind the introduction of the new subject that by teaching Christianity, other religions and philosophies together, it would be possible to ensure an open and inclusive school environment, was in principle consistent with the principles of pluralism and objectivity embodied in Article 2 of Protocol No. 1. | Children’s rights | Right to education (Article 2 of Protocol No. 1) | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The present application was lodged by parents, who are members of the Norwegian Humanist Association ( Human-Etisk Forbund ), and their children, who were primary - school pupils at the time of the events complained of in the present case: Mrs Ingebjørg Folgerø ( born in 1960), Mr Geir Tyberø ( born in 1956) and their son, Gaute A. Tyberø ( born in 1987); Mrs Gro Larsen ( born in 1966), Mr Arne Nytræ ( born in 1963) and their two sons, Adrian Nytræ ( born in 1987) and Colin Nytræ ( born in 1990); Mrs Carolyn Midsem ( born in 1953) and her son, Eivind T. Fosse ( born in 1987). Initially the Association had also joined the application, but it subsequently withdrew.",
"8. On 26 October 2004 the Court struck the application out in so far as it concerned the Association and declared the application inadmissible on grounds of non-exhaustion in respect of the applicant children (for which reason, the term “applicants” used elsewhere in the present judgment refers to the applicant parents). The Court moreover observed that, while the applicant parents had complained under the Convention in particular about the absence of a right to full exemption from the KRL subject (see paragraph 16 below), they had also challenged before the Court the limited possibilities and the modalities for obtaining partial exemption. However, as can be seen from the Supreme Court ’ s judgment, the applicant parents ’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The Supreme Court found no ground for determining whether the teaching of the appellants ’ children had occurred in a manner which violated the relevant human rights treaties. In the light of the foregoing, the Court found that the applicant parents had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of their complaint about the possibilities and modalities for obtaining partial exemption from the KRL subject and declared this part of the parents ’ application inadmissible.",
"In its subsequent decision on admissibility of 14 February 2006, the Court held that, in its examination of the issue regarding full exemption, the above limitations on the scope of the case that followed from the decision of 26 October 2004 did not prevent it from considering the general aspects of the partial- exemption arrangement, notably in the context of the parents ’ complaint under Article 14 of the Convention.",
"A. Factual background to the present case",
"9. Norway has a State religion and a State Church, of which 86% of the population are members. Article 2 of the Constitution provides:",
"“Everyone residing in the Kingdom shall enjoy freedom of religion.",
"The Evangelical Lutheran Religion remains the State ’ s official religion. Residents who subscribe to it are obliged to educate their children likewise.”",
"10. Instruction in the Christian faith has been part of the Norwegian school curriculum since 1739. From 1889 onwards members of religious communities other than the Church of Norway were entitled to be exempted in whole or in part from the teaching of the Christian faith.",
"1. The former Compulsory School Act 1969",
"11. In connection with the enactment of the former Compulsory School Act 1969 ( lov om grunnskolen, 13 June 1969, no. 24, hereafter referred to as “the 1969 Act”), Parliament decided that teaching of the Christian faith should be dissociated from the baptismal instruction of the Church and aimed at teaching the main content of the history of the Bible, the principal events in Church history and basic knowledge of the Evangelical Lutheran Faith for children (section 7 (4) of the Act).",
"12. Under the “Christian object clause” ( den kristne formålsparagraf ) in section 1 of the Act:",
"“Primary school shall, with the understanding and cooperation of the home, assist in giving pupils a Christian and moral education and in developing their abilities, spiritual as well as physical, and giving them good general knowledge so that they can become useful and independent human beings at home and in society.",
"School shall promote spiritual freedom and tolerance, and place emphasis on creating good conditions for cooperation between teachers and pupils and between the school and the home.”",
"13. Teachers were required to teach in accordance with the Evangelical Lutheran faith (section 18(3), added in 1971).",
"14. In accordance with section 12 (6) of the 1969 Act, children of parents who were not members of the Church of Norway were entitled, upon the parents ’ request, to be exempted in whole or in part from lessons on the Christian faith. Pupils who had been exempted could be offered alternative lessons in philosophy.",
"2. Reform",
"15. Between 1993 and 1997 a process of reform of compulsory primary and secondary school took place. In the spring of 1993 Parliament decided to bring the school starting age forward from the age of seven to six and the next spring it extended compulsory school attendance from nine to ten years. A new curriculum was presented to Parliament. The majority of the Parliamentary Committee for Church Affairs, Education and Research proposed that Christianity, other religions and philosophy be taught together. It emphasised the importance of ensuring an open and inclusive school environment, irrespective of the pupils ’ social background, religious creed, nationality, sex, ethnic group or functional ability. School should be a meeting place for all views. Pupils having different religious and philosophical convictions should meet others and gain knowledge about each other ’ s thoughts and traditions. School should not be an arena for preaching or missionary activities. It was noted that since 1969 teaching of the Christian faith had been dissociated from the State Church ’ s baptismal instruction. The subject should give knowledge and insight but should not be a tool for religious preaching. The Committee ’ s majority further considered that guidelines for exemptions should be worked out in order to achieve a uniform practice and that minority groups should be consulted. Exemptions should be limited to parts of the subject, especially material of a confessional character and participation in rituals.",
"16. Subsequently, a white paper ( St.meld. nr. 14 for 1995-96) on Christianity, religion and philosophy ( kristendomskunnskap med religions- og livssynsorientering, hereafter referred to as “the KRL subject”) was presented, in which the Ministry of Church Affairs, Education and Research ( Kirke-, utdannings- og forskningsdepartementet; as from 1 January 2002 the Ministry of Education and Research ( Utdannings- og forskningsdepartementet ) – hereafter “the Ministry”) indicated the following guidelines for making exemptions:",
"“No pupil should feel that being exempted is unpleasant or a stigma;",
"No pupil should be pressurised to stand out as a representative of a specific philosophy of life and the school should therefore display great caution in class or at the school in its handling of a request for exemption;",
"It should not be automatic for certain pupils to be exempted from certain parts of the syllabus;",
"If the circumstances lend themselves to it and the parents/pupil so wish, the background and reasons for an exemption can be taken up in the lessons.",
"An exemption does not mean a freedom to be ignorant ...”",
"17. The majority of the above-mentioned parliamentary committee endorsed the curriculum in the main and pointed out that Christianity should form the central part of the KRL subject ( Innst.s.nr 103 for 1995- 96 ). It further stated:",
"“The majority would also underline that the teaching should not be value- neutral. The aim that the teaching should not be preaching should never be interpreted to mean that it should occur in a religious/ethical vacuum. All teaching and education in our primary schools shall take the school ’ s object clause as a starting point and, within this subject, Christianity, other religions and philosophy shall be presented according to their own special features. The subject should place emphasis on the teaching of Christianity.”",
"18. A minority of one proposed that, for all primary- school pupils, there should be a right to full exemption from the KRL subject and to alternative teaching.",
"19. In the course of preparing the amendments to the law, the Ministry commissioned Mr E. Møse, then a High Court Judge, to make an assessment of compulsory education in the KRL subject from the angle of Norway ’ s obligations under public international law. In his report of 22 January 1997, he concluded:",
"“The object clause of the Primary School Act, whether taken alone or together with Article 2 of the Constitution and other special rules on the Church and schools, does not provide a basis for establishing that the teaching of Christianity under the new syllabus will of legal necessity become preaching, educative or influential in favour of the Evangelical Lutheran Religion. The legislature may choose to make provision for education in the form of preaching to pupils who are of this creed, but not to others. That would be inconsistent with our international obligations and Article 110 c of the Constitution on the protection of human rights.",
"What emerges, from a legal point of view, from the somewhat unclear concept of ‘ confessional basis ’, is that a natural consequence of the State Church system is that the legislator lets instruction in religion or philosophy include the Evangelical Lutheran thoughts, not other forms of Christianity. The law on the new subject, which includes a part on Christianity, has opted for this. ... The solution has been opted for because the majority of the population in Norway is affiliated to this creed. It is evidently motivated by objective reasons. It cannot be ruled out by human rights treaties, provided that the teaching is otherwise pluralistic, neutral and objective.”",
"20. As regards the issue of exemption from the KRL subject, Mr Møse stated:",
"“In the situation as it emerges I find that a general right of exemption would be the safest option. This would mean that international review bodies would not undertake a closer examination of thorny questions that compulsory education raises. However, I cannot say that a partial exemption would violate the conventions, provided that the operation of the system falls within the framework of the relevant treaty obligations. A lot would depend on the further legislative process and the manner of implementation of the subject.”",
"21. Sections 7 and 13 of the 1969 Act were amended by an Act of 19 June 1997 (no. 83), which came into effect on 1 July 1997. The new provisions, plus an object clause similar to section 1 of the former 1969 Act, were subsequently included in sections 2-4 and 1-2 respectively of the Education Act 1998 ( Lov om grunnskolen og den videregående opplæring av 17. juli 1998 nr. 61 – “the Education Act 1998 ”), which came into force on 1 August 1999.",
"22. Section 1-2(1) provided:",
"“The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing, to develop their mental and physical abilities, and to give them good general knowledge so that they may become useful and independent human beings at home and in society.”",
"23. Section 2-4 read:",
"“Instruction in Christianity, religion and philosophy shall",
"(i) transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith;",
"(ii) transmit knowledge of other Christian communities;",
"(iii) transmit knowledge of other world religions and philosophies, and ethical and philosophical subjects;",
"(iv) promote understanding and respect for Christian and humanist values; and",
"(v) promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions.",
"Instruction in Christianity, religion and philosophy is an ordinary school subject, which should normally bring together all pupils. The subject shall not be taught in a preaching manner.",
"A person who teaches Christianity, religion and philosophy shall take as a starting point the object clause in section 1-2 and should present Christianity, the different religions and philosophy from the standpoint of their particular characteristics. The same pedagogical principles shall apply to the teaching of the different topics.",
"A pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life. This may concern, inter alia, religious activities within or outside the classroom. In the event of a parental note requesting exemption, the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum.”",
"24. From the travaux préparatoires it can be seen that the expression “religious activities” was meant to cover, for example, prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature.",
"25. In accordance with a circular by the Ministry of 10 July 1997 (F ‑ 90 ‑ 97), a parental note to the school requesting exemption should contain reasons setting out what they considered amounted to practice of another religion or adherence to another philosophy of life. The pupil should be granted an exemption after the parents had specified the reasons. If the request was rejected, the parents had a right of appeal to the State Education Office in the county concerned. The appeal was sent via the school, which then had an opportunity to alter its decision.",
"26. The requirement of giving reasons was further specified in a ministerial circular of 12 January 1998 (F-03-98), according to which no reasons were required for making an exemption from clearly religious activities. Beyond that, with regard to matters falling outside the main rule for making exemptions, stricter requirements applied in respect of reasons.",
"27. In connection with the preparation of the KRL subject, associations representing minority convictions expressed strong objections, notably that the subject was dominated by Evangelical Lutheran Christianity and contained elements of preaching. The Norwegian Humanist Association commented, inter alia, that the subject had a confessional basis ( konfesjonsforankring ) and that the possibility foreseen for obtaining exemption from only parts of the subject was inadequate. At its national congress in May 1997 the Association decided to invite Parliament to reject the government ’ s proposal to limit the right of exemption.",
"28. From autumn 1997 the KRL subject was gradually introduced into the primary- school curriculum, replacing the subject of Christianity and philosophy of life. During the school year 1999/ 2000, the subject was introduced at all levels.",
"3. Evaluations of the KRL subject",
"29. On 18 October 2000 the Ministry issued a press release about the completion of two evaluation reports on the KRL subject, one entitled “ Parents ’, pupils ’ and teachers ’ experiences with the KRL subject” ( Foreldres, elevers og læreres erfaringer med KRL-faget ), provided by Norsk Lærerakademi, the other entitled “A subject for every taste? An evaluation of the KRL subject” ( Et fag for enhever smak? En evaluering av KRL-faget ) by the Høgskulen i Volda and Diaforsk. Parliament had requested that a survey of the implementation of the exemption rules be prepared after a three-year period. Both reports concluded that the partial- exemption arrangement was not working as intended and should therefore be thoroughly reviewed. The second report listed the following “Main conclusions”:",
"“In this part of our report we have discussed whether there is concordance between KRL ’ s intentions, principles and exemption schemes on the one hand and its practical implementation in schools nationwide on the other, and whether parental rights can be said to be ensured when the teaching and exemption scheme are organised the way they are. The perspective of parental rights, which is central to the project ’ s mandate, has made it necessary to focus especially on the experiences various groups of parents have had with the subject and with the exemption scheme.",
"All things considered it should be said that the great majority of the parents we have been in contact with, who belong to the Church of Norway, are satisfied with the subject or have no strong opinions about it. However we have found powerful resistance to important aspects of the subject among other groups of parents. The lasting antipathy to the subject from parents belonging to religious/ faith minorities means that KRL can hardly be said to integrate and include as intended.",
"The principal and empirical surveys provide grounds for the following main conclusions:",
"1. There is broad agreement among parents that it is important to have some common teaching in the subject concerning different religions and beliefs, but there is no agreement about",
"• what the contents and objectives of the common teaching should be;",
"• in which year the pupils should be taught about religions other than their own.",
"2. In practice some of the subject ’ s intentions are ensured at all surveyed schools, but at none of them are all the fundamental intentions ensured. Deficient implementation of the central intentions underlying the subject can be explained by",
"• tensions in the subject description itself and between the various intentions underlying the subject, making it difficult to implement;",
"• lack of resources and problems with implementation presuppose changes at schools.",
"3. The current exemption scheme does not work so that parental rights are ensured in practice. This is due to the following reasons among others :",
"• the information schools give about the exemption scheme is in many ways not suited to safeguarding the possibility of exemption;",
"• the information given about KRL classes is of too general a nature for parents to be able to notify their intention regarding an exemption. For example, information about working methods is hardly ever given. Besides, the lesson plans generally come too late for parents to have a practical opportunity of asking for an exemption;",
"• schools interpret the exemption regulations too strictly compared with the clarifications given both by Parliament and the Ministry. For instance, an exemption is often granted only in respect of those activities which are ‘ clearly religious activities ’. Furthermore several schools report attitudes which give the impression that it is practically impossible to be granted an exemption;",
"• schools offer very little differentiated teaching to pupils who are to be exempted from parts of the subject, and pupils with an exemption mostly sit passively in the classroom;",
"• in addition, a number of parents from minority- language backgrounds do not have the language competence necessary to exercise their rights even though they would like an exemption. In many cases this causes distrust in school/ home relations. A considerable number of parents from minority backgrounds say they want full exemption but will not apply because they are afraid of a conflict with the school that may harm their children;",
"• the integration of themes and subjects helps KRL become invisible in the timetable so that in practice it is very difficult to ask for an exemption.",
"4. Changes should be made which still ensure some teaching for the whole class, while ensuring parental rights in practice. This only seems possible under certain conditions.",
"• Arrangements should be made in order to facilitate teaching about the different religions and beliefs and promote dialogue and mutual respect in some tuition for the whole class. Efforts should probably be made to have flexible models that can be adjusted to the special conditions prevailing for lower primary, upper primary and lower secondary levels respectively in different parts of the country and for different groups of pupils;",
"• Considering the problems we can now see at several schools, it should be possible to provide for full exemption. This would be the safest solution in respect of international conventions and probably also the one that in the long run would be best suited to ensuring support and legitimacy for a subject that is focused on religion and belief.",
"We have established that the variations we have found in teaching in different parts of the country, at some schools and in different classes, give us reason to ask if KRL is one or more than one new subject.”",
"B. Judicial proceedings brought by some of the applicants",
"30. In the meantime, on 14 March 1998 the Norwegian Humanist Association, together with eight sets of parents who were members of the Association and whose children went to primary school, brought proceedings before Oslo City Court ( byrett ) on account of administrative refusals of the parents ’ applications for full exemption from the teaching of the KRL subject. They claimed that the refusal of full exemption violated the parents ’ and the children ’ s rights under Article 9 of the Convention and Article 2 of Protocol No. 1, taken on their own or in conjunction with Article 14. They also relied on, amongst other provisions, Articles 18 and 26 of the 1966 United Nations International Covenant on Civil and Political Rights and Article 13 § 3 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights.",
"31. By a judgment of 16 April 1999, the City Court rejected the State ’ s objection that the Association lacked a legal interest and hence did not have legal standing. However, on the substantive issues the City Court found for the State and rejected the claim.",
"32. The Association and the parents appealed to the Borgarting High Court ( lagmannsrett ), which by a judgment of 6 October 2000 upheld the City Court ’ s judgment.",
"33. On a further appeal by the applicants, the Supreme Court ( Høyesterett ), by a judgment of 22 August 2001, unanimously dismissed the appeal in so far as it concerned the Association on the ground that it lacked a legal interest sufficient to have standing in the case. In so far as it concerned the other appellants, it unanimously dismissed their appeal and upheld the High Court ’ s judgment.",
"34. In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Stang Lund, stated from the outset that “[the] case concerns the validity of the administrative decisions rejecting the parents ’ applications for full exemption for their children from the primary and secondary school ( KRL ) subject”. He defined the issue to be determined as being “whether instruction in the [ KRL ] subject with a limited right to exemption [was] contrary to Norway ’ s international legal obligations to protect, inter alia, freedom of religion and belief”.",
"35. Thereafter, Mr Justice Stang Lund undertook an extensive analysis of the legislative history and the position under international human rights law, notably the relevant provisions and case-law of the European Convention and the 1966 International Covenant on Civil and Political Rights (“ the ICCPR ”). Dealing in turn with each of the relevant provisions of the Education Act 1998, Mr Justice Stang Lund made the following observations about the Christian object clause in section 1-2(1).",
"“The object clause applies to all teaching in primary and lower secondary schools. The provision is a general one, and its scope may be difficult to determine. It may raise questions relating to the conventions ’ provisions regarding freedom of religion and parental rights; see Judge Møse, pages 35 et seq. of Proposition No. 38 (1996- 97) to the Odelsting [the larger division of Parliament ]. As far as the KRL subject is concerned, the provision must be viewed in conjunction with section 2-4(2), which establishes that this subject is an ordinary school subject for all pupils, and that instruction in the subject shall not involve preaching. The object clause must be interpreted and applied in such a way that it does not conflict with the conventions that have been incorporated pursuant to section 2 ( see also section 3 ) of the Human Rights Act.",
"As a result of changes and amendments in subject syllabuses and national standard curricula over time, the expression ‘ Christian and moral upbringing ’ must be interpreted as meaning that Christian and humanist values are to be viewed in conjunction with each other. Both the Christian and the humanist traditions underscore the importance of truth, human dignity, charity, democracy and human rights. These are values common to almost everyone in Norway, regardless of religion or philosophy of life. The conventions do not require that teaching in schools must be value neutral; see the judgment of the European Court of Human Rights in the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark ( 7 December 1976, § 53, Series A no. 23 ).",
"The object clause establishes that all school education shall take place in cooperation and agreement with the home. Any effort by primary and lower secondary school teachers to help give pupils a Christian upbringing can only be made with the parents ’ consent and in cooperation with the home. Interpreted in this way, the provision is not incompatible with Article 9 of the European Convention and Article 18 § § 1 to 3 of the ICCPR regarding freedom of thought, conscience and religion or with Article 2 of Protocol No. 1 to the European Convention and Article 18 § 4 of the ICCPR regarding parents. The reference to the object clause in section 2 ‑ 4(3) which prescribes that teachers of the KRL subject shall take the Christian object clause of the primary and lower secondary school as their point of departure thus has no independent significance for the issue of whether there is a violation of the conventions.”",
"36. As regards section 2-4(1) to (3) of the Education Act 1998, Mr Justice Stang Lund stated as follows.",
"“The appellants have emphasised that the Act requires the teaching to give pupils a thorough knowledge of the Bible and of Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, while it merely requires knowledge of other world religions, beliefs and ethical and philosophical topics.",
"I refer to the fact that it may be inferred from the practice of the European Court of Human Rights that the States Parties themselves decide the scope and content of teaching; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996 ‑ VI. Thus, Article 9 of the ECHR and Article 2 of Protocol No. 1 do not preclude compulsory instruction in the content of various religions and beliefs and in the history of religions and ethics, provided that such instruction is given in an objective, critical and pluralistic manner. In this respect, I refer to my earlier review and summary of the decisions and comments of the convention bodies. The compulsory instruction must cover different religions and beliefs. The greater emphasis placed in section 2-4(1) on knowledge of Christianity than on knowledge of other religions and beliefs is, in my opinion, within the limit of the discretion accorded by the conventions to the States Parties. The requirement that compulsory instruction must be objective, critical and pluralistic cannot be interpreted as meaning that there must be a specific, proportional division of instruction between different religions and different philosophies of life. In the light of the history, culture and traditions of the individual State Party, it must be acceptable for certain religions or beliefs to be more dominant than others.",
"Indoctrination or other preaching of a specific religion or a specific philosophy of life will be contrary to the European Convention and the ICCPR; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis, cited above, § 28, and point 6 of the comment of the UN Human Rights Committee of 20 July 1993. Accordingly, section 2-4(2) of the Education Act prescribes that instruction in the KRL subject shall not involve preaching.",
"The appellants, supported, inter alia, by Judge Møse ’ s report (page 29 of Proposition no. 38 (1996-97) to the Odelsting ), have argued that instruction that communicates a specific religious view in a way that is liable to influence pupils to adopt a specific faith is also a violation of the convention provisions regarding freedom of religion and parental rights. I agree that such communication might involve a violation. However, the expression ‘ liable to ’ may be interpreted in such a way as to give it greater scope than that which it derives from the decisions of the European Court of Human Rights. I shall therefore keep to the criteria that have been developed in the Court ’ s practice. In connection with the introduction of the KRL subject, the travaux préparatoires show that the Ministry and the majority of Parliament were extremely concerned to emphasise that the subject was to be an ordinary school subject for all pupils. This has been expressly stated in the wording of the Act; see section 2-4 (2), first sentence. The legislator has also stated that the KRL subject shall be a subject designed to provide knowledge; see, for instance, page 6, second column, and page 1 0 of Proposition no. 38 (1996- 97) to the Odelsting. Section 2-4 (3) provides that Christianity, other religions and philosophies of life shall be presented on the basis of their distinctive characteristics. On the other hand, the Parliament ’ s Standing Committee on Education, Research and Church Affairs stated that instruction shall not be value neutral; see page 4 of Recommendation no. 103 (1995- 96) to Parliament. This in itself cannot be contrary to the conventions since, as I have established earlier, neither the ECHR nor the ICCPR is interpreted as meaning that instruction shall be neutral as regards values. ”",
"37. As to section 2-4(4) of the Education Act 1998, Mr Justice Stang Lund held that, if interpreted against the background of the relevant provisions of the Convention and the ICCPR and section 3 of the Human Rights Act, it must be understood to the effect that pupils had a right to be exempted and that their parents had no obligation to let their children follow lessons on religion and philosophy regarded as preaching or indoctrinating in the sense of those treaties. The children could therefore be absent from such classes. The question as to how large a part of the syllabus would be affected in this way would have to be decided in each concrete case depending on how the teaching was planned and implemented. In the view of Mr Justice Stang Lund, the provision on exemption was not contrary to any requirements pertaining to religious freedom and parental rights. The Convention requirement that the teaching should be objective, critical and pluralistic did not preclude compulsory education in the content of the different religions and philosophies of life or giving a particular religion or philosophy, in view of the Contracting State ’ s history, culture and traditions, a more prominent place than others. As already mentioned, the Education Act 1998 provided that the subject should be an ordinary school subject. According to the preparatory documents, it was to be a knowledge - based subject. The Act required that the teaching be neutral and not preaching. Therefore it did not appear that the provisions in section 2-4 regarding the contents of the teaching were contrary to the Convention.",
"38. Mr Justice Stang Lund further considered the parts of the school curriculum (the Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999, referred to below as “the Curriculum”) that, in the appellants ’ submission, gave preference to the Christian faith and influenced pupils to opt for Christianity. In relation to Norway ’ s international obligations, the Curriculum, which had its legal basis in sections 2 - 6 and 2 ‑ 8 of the Education Act 1998 and the relevant regulation of 28 June 1999, had the same legal status as other regulations. However, he observed, what mattered was that pupils gained understanding of the plurality of convictions and thoughts, and that the teaching did not present one faith as being superior to others. It ought to be acceptable, in the light of a Contracting State ’ s history, culture and traditions, that one or more religions or philosophies of life be given a more prominent place than others.",
"39. As to the appellants ’ objections to influencing pupils through the use of pictures, songs, drama, music and stories from the Bible and religious texts, Mr Justice Stang Lund found that it ought to be possible to impart neutrally to pupils the traditions and “means of transmitting knowledge” ( måte å formidle på ) of the various religions without running counter to international human rights law. The Curriculum placed emphasis on openness, insight, respect and dialogue and on the promotion of understanding and tolerance in discussion of religious and moral issues and forbade preaching. Within the framework of the Curriculum, the teaching of the KRL subject could be carried out without any conflict with the relevant provisions of international human rights law.",
"40. As to the appellants ’ argument that the school manuals, notably volumes 2, 3, 5 and 6 of Bridges, amounted to preaching and were capable of influencing the pupils, Mr Justice Stang Lund observed that, while several definitions of problems and formulations used in Bridges could be understood as if the Christian faith provided the answer to ethical and moral questions, no further information had been submitted to the Supreme Court as to how the teaching in relation to this material had been planned and implemented.",
"41. In this context Mr Justice Stang Lund noted that the appellants ’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The arguments and evidence adduced in relation to each decision to refuse full exemption had been aimed at highlighting how the subject functioned in general. The appellants had not gone deeply into the validity of the individual decision. Because of the way the case had been presented, there was no ground for determining whether the teaching of the appellants ’ children had occurred in a manner which violated the relevant human rights treaties. The case concerned the validity of the decisions refusing full exemption from the KRL subject. The appellants had not shown it to be probable that the teaching had been planned and carried out in a manner that, in accordance with these conventions, warranted exemption from all teaching of the subject in question.",
"42. Finally, Mr Justice Stang Lund went on to review the argument of discrimination.",
"“Pursuant to section 2-4 of the Education Act, parents must send written notification in order for their child to be exempted from parts of the instruction at the individual school. Even if applications for exemption are most likely to concern parts of the KRL subject, a limited right to exemption applies to all subjects and activities. The Act does not stipulate that grounds must be given for the application. Practice as regards requiring grounds has varied to date.",
"The State has argued that instruction in primary and lower secondary schools is to a considerable extent divided up into topics that cut across subject boundaries. In so far as parts of the KRL subject are integrated with other subjects, full exemption from instruction in the KRL subject will not be sufficient. It is also the view of the State that the KRL subject covers many topics which do not give grounds for exemption, pursuant either to the conventions or to section 2-4 (4). The exemption system is designed and practised in such a way that the content of the instruction is the decisive factor. In the State ’ s view, therefore, the prohibition against discrimination imposed by conventions cannot apply to requirements regarding the provision of grounds for applications for exemption.",
"The Ministry has explained the requirement as regards grounds and the guidelines for exemption in two circulars. In Circular F-90-97 dated 10 July 1997, page 5, the Ministry stated:",
"‘ When parents request an exemption, written notification to this effect shall be sent to the school. The notification must contain grounds supporting what they perceive to be the practice of another religion or adherence to another philosophy of life in the instruction.",
"If the parents apply for an exemption from parts of the instruction which they perceive to be the practice of another religion or adherence to another philosophy of life, the pupils shall be granted exemption after the parents have explained what it is they consider to have such an effect in the instruction. Parents whose notification to the school regarding exemption is not upheld are entitled to appeal against the municipal administrative decision to the National Education Office in the county concerned. The appeal shall be sent through the school, which is thereby given the opportunity to reverse its administrative decision. ’",
"The Ministry enlarged on the requirement of grounds in Circular F-03-98 dated 12 January 1998, page 3:",
"‘ The Ministry ’ s basic rule is that when parents apply for an exemption from activities that are clearly religious, exemption ( partial exemption) shall be granted. In such cases, the parents are not required to give any grounds. In the case of applications for exemption from activities that are not clearly religious, more must be required as regards the parents ’ grounds. Such cases are not covered by the main rule as to what exemptions may be applied for. Moreover, the travaux préparatoires make provision for an assessment of whether there are reasonable grounds on which to request an exemption. Reference is made to Recommendation no. 95 (1996- 97) to the Lagting [smaller division of Parliament] in which it is stated: “ The majority is of the opinion that pupils shall be exempted from such parts of the instruction at the individual school as, on the basis of their own religion or own philosophy of life, it is reasonable to perceive as the practice of another religion or adherence to another philosophy of life. ” However, account must be taken of the fact that many parents consider issues relating to faith and philosophies of life to lie within the realm of private life. The right to private life is also protected by international conventions. ’",
"The Ministry then reviews examples of areas from which pupils may be exempted and states on page 4:",
"‘ The religious and philosophical convictions of parents shall be respected in the entire Curriculum provided by the school. This means that the rules for exemption apply to all compulsory education. In general, the issue that must be assessed by the school is whether the Curriculum in practice is liable to influence pupils to adopt a specific faith or philosophy of life, or may otherwise be perceived as participation in religious activity or adherence to a philosophy of life.",
"In specific terms, this may, for instance, have significance with regard to dance classes organised as part of Physical Education; dancing with a partner is incompatible with the faith of some persons, while movement to music is acceptable. In the Arts and Handicraft subject, it will be necessary to exercise caution as regards illustrations of God and the prophets; see the discussion of “ Illustrations – ban on images ” in the Guide to the KRL subject (p. 22). ’",
"I will add that in connection with the evaluation of the KRL subject, the Ministry emphasised the importance of changing the content, methodology and organisation of the subject to ensure that as many children and young people as possible could participate in the whole subject. The reason the Ministry nevertheless decided to maintain the limited right of exemption was to be certain that the rights of parents and freedom of religion were safeguarded satisfactorily, and that they were exercised in a way that found understanding; see page 51, first column, of Report no. 32 (2000-01) to Parliament.",
"I note that the right to exemption from all or parts of the compulsory Curriculum in the KRL subject in primary and lower secondary schools will result in a difference between parents in relation to the school system. Parents and pupils who wish to apply for an exemption must follow the Curriculum closely and apply for an exemption when they consider exemption to be necessary in order to safeguard the rights of the child and their own rights. The school initially decides whether to grant an exemption. The question is whether this difference in treatment is in pursuit of a legitimate aim and whether the aim is proportionate to the means employed.",
"According to the practice of the European Court of Human Rights, as mentioned earlier, Article 2, second sentence, of Protocol No. 1 has been interpreted as meaning that the convictions must attain a certain level of cogency, seriousness, cohesion and importance ( see the Court ’ s judgments in Campbell and Cosans v. the United Kingdom ( 25 February 1982, § 36, Series A no. 48 ) and Valsamis [(cited above], § 25) ). The statements in these judgments support the requirement by the States Parties that parents provide somewhat more detailed grounds when the activity from which they are applying for an exemption does not immediately appear to be practice of a specific religion or adherence to a different philosophy of life.",
"If an applicant must give detailed information about his or her own religion or philosophy of life, however, this may be a violation of Article 8 of the Convention and Article 17 of the ICCPR regarding the right to respect for private life and possibly also Article 9 of the Convention and Article 18 § 1 of the ICCPR regarding freedom of religion. I underscore that differential treatment on the ground of religion and political or other opinions is the core of the prohibition against discrimination.",
"As I have explained, the basic reason for introducing compulsory lessons in the KRL subject was that the government and a majority of Parliament considered it to be significant for the communication of a common foundation of knowledge, values and culture in primary and lower secondary school. The importance of an open, inclusive school environment was emphasised. Implementation of compulsory primary and lower secondary education must include a right to notify a desire to exercise the right to exemption, and in any event the application must state in general terms the parts of the Curriculum from which exemption is desired. It is clear to me that the common curriculum in the KRL subject and the requirement of a written application to exercise the right to an exemption are means of pursuing legitimate aims, and that it is not a disproportionate measure to require that parents who wish to apply for an exemption from parts of the subject must follow the Curriculum and give notification when they desire an exemption. I will add that this is contingent on the school authorities taking the necessary steps to enable parents to follow the Curriculum. The common, compulsory Curriculum requires that parents be kept well informed about the KRL subject and the programme and methods of the Curriculum at all times, and if appropriate be informed of other activities with a religious content.",
"The parties have not gone into detail concerning the specific requirements regarding grounds and the grounds that are given in the various applications for exemption from the KRL subject. I shall therefore confine myself to declaring that there is no ground for assuming that a possible violation of the prohibition against discrimination in this case may have the consequence of invalidating the administrative decisions to deny full exemption from lessons in the KRL subject.”",
"C. Petition by the parties to the above proceedings, and their children, to the Court and to the United Nations Human Rights Committee",
"43. On 15 February 2002 the applicant parents and children lodged their application under the Convention with the Court.",
"44. Subsequently, on 25 March 2002, four other sets of parents who had also been parties to the above -mentioned domestic proceedings lodged together with their respective children a communication (no. 1155/2003) with the United Nations Human Rights Committee under the Protocol to the 1966 International Covenant on Civil and Political Rights.",
"45. On 3 November 2004 the Committee rejected the respondent State ’ s objection that, as three other sets of parents had lodged a similar complaint before the Court, “the same matter” was already being examined by the latter. The Committee declared the communication admissible in so far as it concerned issues raised under Articles 17, 18 and 26 of the Covenant. As to the merits, the Committee expressed the view that the present framework of the KRL subject, including the regime of exemptions, as it had been implemented in respect of the complainants (“authors”), constituted a violation of Article 18 § 4 of the Covenant. The Committee reasoned as follows.",
"“14.2. The main issue before the Committee is whether the compulsory instruction of the CKREE [ [1] ] subject in Norwegian schools, with only limited possibility of exemption, violates the authors ’ right to freedom of thought, conscience and religion under Article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to Article 18, paragraph 4. The scope of Article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. Instruction in religion and ethics may in the Committee ’ s view be in compliance with Article 18, if carried out under the terms expressed in the Committee ’ s General Comment No. 22 on Article 18: ‘ [A]rticle 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way ’, and ‘ public education that includes instruction in a particular religion or belief is inconsistent with Article 18, paragraph 4, unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians ’. The Committee also recalls its Views in Hartikainen et al. v. Finland, where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. It is within this legal context that the Committee will examine the claim.",
"14.3. Firstly, the Committee will examine the question of whether or not the instruction of the CKREE subject is imparted in a neutral and objective way. On this issue, the Education Act, section 2-4, stipulates that: ‘ Teaching on the subject shall not involve preaching. Teachers of Christian Knowledge and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section 1-2, and present Christianity, other religions and philosophies of life on the basis of their distinctive characteristics. Teaching of the different topics shall be founded on the same educational principles .’ In the object clause in question it is prescribed that the object of primary and lower secondary education shall be ‘ in agreement and cooperation with the home, to help to give pupils a Christian and moral upbringing ’. Some of the travaux préparatoires of the Act referred to above make it clear that the subject gives priority to tenets of Christianity over other religions and philosophies of life. In that context, the Standing Committee on Education concluded, in its majority, that: the tuition was not neutral in value, and that the main emphasis of the subject was instruction on Christianity. The State Party acknowledges that the subject has elements that may be perceived as being of a religious nature, these being the activities exemption from which is granted without the parents having to give reasons. Indeed, at least some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion (see para. 9.18). It also transpires from the research results invoked by the authors, and from their personal experience, that the subject has elements that are not perceived by them as being imparted in a neutral and objective way. The Committee concludes that the teaching of CKREE cannot be said to meet the requirement of being delivered in a neutral and objective way, unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective.",
"14.4. The second question to be examined thus is whether the partial- exemption arrangements and other avenues provide ‘ for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians ’. The Committee notes the authors ’ contention that the partial- exemption arrangements do not satisfy their needs, since teaching of the CKREE subject leans too heavily towards religious instruction, and that partial exemption is impossible to implement in practice. Furthermore, the Committee notes that the Norwegian Education Act provides that ‘ on the basis of written notification from parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life ’.",
"14.5. The Committee notes that the existing normative framework related to the teaching of the CKREE subject contains internal tensions or even contradictions. On the one hand, the Constitution and the object clause in the Education Act contain a clear preference for Christianity as compared to the role of other religions and worldviews in the educational system. On the other hand, the specific clause on exemptions in section 2-4 of the Education Act is formulated in a way that in theory appears to give a full right of exemption from any part of the CKREE subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life. If this clause could be implemented in a way that addresses the preference reflected in the Constitution and the object clause of the Education Act, this could arguably be considered as complying with Article 18 of the Covenant.",
"14.6. The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, in so far as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, in so far as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services (para. 9.18). While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable.",
"14.7. In the Committee ’ s view, the difficulties encountered by the authors, in particular the fact that Maria Jansen and Pia Suzanne Orning had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee ’ s view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of Article 18, paragraph 4, of the Covenant in their respect.”",
"In view of this finding, the Committee was of the opinion that no additional issue arose under other parts of Article 18 or Articles 17 and 26 of the Covenant. It gave the respondent State ninety days within which to provide “information about the measures taken to give effect to the Committee ’ s Views ”.",
"D. Follow-up measures",
"46. In the light of the United Nations Human Rights Committee ’ s “Views ”, the Norwegian government decided to take measures to modify the KRL subject, and notably to propose changes to the Education Act 1998 and the Curriculum. According to Circular F-02-05, this included the following elements.",
"(i) Deleting in section 2-4(3) the reference to the Christian object clause in section 1-2.",
"(ii) Giving the various religions and philosophies of life the same qualitative description in the aims of the subject, while maintaining the current proportions of various religions and philosophies of life in the central teaching material.",
"(iii) Making the provision on partial exemption in current section 2-4 (4) the subject of a separate provision, ensuring that the exemption arrangement take sufficient account of the parents ’ rights and the need to protect minorities; simplifying the provisions on applications for exemption; specifying in the Act the obligation of schools to provide information and circulating information to schools about the practice of the exemption arrangement.",
"(iv) Drawing up a new curriculum making a clear division between those elements that could be viewed as the practice of religions and those elements that could not, while maintaining the distribution between the different parts of the subject.",
"(v) Emphasising the choice of working methods in the introduction to the Curriculum and in the guidelines for the subject, in order to limit the possibility that parts of the teaching could be experienced as the practice of a religion.",
"Varied and engaging working methods should contribute to the dissemination of all aspects of the subject. It was emphasised that working methods that could be perceived as being close to the practice of a religion required special care on the part of teachers, including the provision of adapted teaching.",
"(vi) The proposed changes would be implemented from the school year 2005/ 06. The introduction of the measures from autumn 2005 generated the need for strengthening the skills and competence of the teachers. The government would commence the work of developing skills and competence as soon as a new curriculum had been finalised.",
"(vii) A high degree of flexibility should be displayed in relation to parents ’ wishes for adapted teaching for their child/children. If necessary, the option of full exemption on a temporary basis should be available for those parents who so wished pending implementation of the proposed permanent arrangements.",
"On the basis of the government ’ s decision, the Ministry started reviewing the necessary changes. Following proposals by the Ministry on 29 April 2005, endorsed by the government on the same date ( Ot.prp.nr.91 (2004 ‑ 05) ), on 17 June 2005 Parliament adopted certain amendments and additions to the Education Act 1998 which came into force with immediate effect. As a result, a few adjustments were made to section 2-4(1) (notably, the word “faith” was replaced by “understanding of Christianity”; the requirement of thoroughness was extended to knowledge of other Christian communities) and the reference in section 2-4(3) to the object clause in section 1-2 was deleted (see paragraph 23 above). Moreover, the provisions on partial exemption in section 2-4 (4) were moved to a new and separate section 2-3A, with some clarifying additions and changes. This included, inter alia, replacing the expression “religious activities” (in former section 2-4(4)) with the word “activities” and extending the ground for partial exemption to cover also activities that the parents, from the point of view of their own religion or philosophy of life, perceived as being offensive or insulting (in addition to those that they perceived as amounting to the practice of another religion or adherence to another philosophy of life)."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"47. The relevant provisions of the Education Act 1998 are cited above.",
"48. The requirement for parents to give reasons for an application for a partial exemption is described in the citations from Circulars F-90-97 and F ‑ 03-98, reproduced in the Supreme Court ’ s judgment in paragraph 42 above. The latter circular also contained the following passages, which are of relevance for the present case.",
"“ 4. Solution: differentiated teaching and local adjustment of the Curriculum",
"4.1. Adjusted teaching and local work on the Curriculum as an underlying principle",
"Section 13 (10) of the Compulsory School Act provides that a school that receives notification concerning an exemption shall as far as possible, and especially at the primary- school level, seek solutions by providing for ‘ differentiated teaching within the Curriculum ’.",
"The differentiated teaching mentioned in the Act is closely related to the adaptation of teaching principle that is generally emphasised in the School Curriculum [ Læreplanverket, L97 ] and embodied in section 7 of the Compulsory School Act. In the principles and guidelines, importance is attached to the principles of community and adjustment within the unified school system framework. Formulations there include the following:",
"Individual adjustment is necessary to ensure that equivalent provision is made for all pupils. For this purpose, all aspects of the school course – syllabus, working methods, organisation and teaching aids – must be adjusted in accordance with the pupils ’ capabilities.",
"It is further stated that this opens up opportunities for different treatment and depth of study of the syllabus, and for variations in kinds of material, difficulty, quantity, speed and progression ( see L97/L97S).",
"...",
"4.2. Differentiation within the KRL syllabus – differentiation of activities, not of knowledge",
"According to the statute, a school that receives notification concerning an exemption shall seek solutions in which provision is made for differentiated teaching within the Curriculum. The municipal obligation to provide differentiated teaching applies as extensively as possible and particularly at the primary- school stage. The reasons for the statute state that the differentiated teaching shall be provided according to the same curriculum, and is not to be differentiation of knowledge but differentiation of activities. Since there is no exemption from knowledge of the subject, pupils with an exemption shall receive instruction within the framework of the curriculum.",
"In cases to which partial exemption applies, the alternative is not another subject or another curriculum, but other activities and other ways of working with the KRL syllabus. The school must convey the knowledge in question to the pupils by means of a different methodological approach. Exemption can nevertheless be granted from certain main topics which entail specific activities. An example is the main topic in which pupils are required to learn the Ten Commandments by heart ( Christian faith and ethics, sixth grade). One cannot, however, be exempted from knowing about the Ten Commandments.",
"The differentiated course of instruction must have regard for the pupils ’ religious or philosophical background, and help as far as possible to ensure that all pupils have worked with the same areas of knowledge in the grade in question, but using adjusted working methods.",
"How great the need for differentiation is depends locally on",
"– which religious or philosophical groups the parents belong to, and",
"– what kinds of activity they request exemption from.",
"...",
"6. Differentiation in encounters with specific activities",
"The Guide to the KRL subject contains an introduction to ways of working with the subject, and also deals with the questions discussed below. Some of the questions are dealt with more exhaustively here however. See also the concrete examples for each school year given in the guide.",
"We give examples below of how to work with various activities, and take up other questions that may arise:",
"6.1. Prayers, creed, and other important religious texts",
"Some activities – such as learning by heart and reciting creeds, commandments and prayers (LS97, pp. 96 and 101, and L97S, pp. 101- 09) may be perceived by some parents and guardians as the exercise of and/or adherence to a particular religion. When notification is given concerning an exemption from such activities, the school will offer differentiated instruction to enable the pupil to work with that kind of material in a different way.",
"If the parents find this satisfactory, they can choose to allow their children to be present when prayers or creeds from other religions are recited, provided the children are helped to maintain the necessary distance from the material and from what is taking place (see in this connection the section above on the roles of participant and spectator). Such activities can also be scheduled for individual working periods and for work in groups in which different approaches to the material are adopted.",
"6.2. Hymn singing",
"While arrangements are made for pupils who belong to the Christian tradition to sing hymns and to gain insight through that activity into an important feature of their religious and cultural tradition, necessary regard must be had for pupils who do not belong to that tradition. Hymn singing can also take place outside the Christian knowledge and religious and ethical education periods, for instance in music periods. Hymns can be incorporated into song periods, when they are placed in their musical context and seen as an important part of our sung cultural heritage.",
"Pupils who have been granted an exemption for hymn singing must be given other ways of working with hymns, as the case may be in separate groups. They can for instance listen to a hymn and be given such assignments as what is the hymn text about? Can you relate the content of the hymn to a particular festival, and if so, why? Why is this hymn important within the Christian tradition? Another possibility would be to use hymns and songs as a theme for project work, involving looking more closely at songs, hymns and music and their functions in the different religions.",
"See also the Guide to the KRL subject, p. 23.",
"6.3. Attendance at rituals/visits to churches or other religious assembly buildings",
"Some parents may wish to have their children exempted from entering a church or other centre of divine worship whatever the connection. Others will distinguish between attending a divine service or the like, and being in a church or other religious assembly building on an excursion in a teaching situation. Whatever position the parents may take, cooperation between schools and homes is of major importance whenever such visits are scheduled.",
"Excursions",
"In the fourth grade, pupils are to be made acquainted with the lay-out, fixtures and furnishing of churches and with certain important Christian symbols ( programme item: Christian festivals, religious symbols, the life of the local Christian congregation ). Most pupils will acquire this knowledge by means of pedagogically arranged excursions to the local church. The focus is on the informative and objective aims. Information may for instance be conveyed relating to the church building, church decoration, symbols, and the functions of various objects.",
"Some parents/guardians may request exemption for their children from participation in such excursions because a visit to a church is regarded as participation in a religious activity.",
"For pupils who cannot visit a church, for instance, arrangements must be made for other activities and assignments at school. These should relate to the same area, so that the pupils are given access to parts of the same knowledge as they would have acquired on a church visit. Assignments can, for instance, be given relating to information booklets, if any, publications concerned with local history, or drawings, or pictures and posters showing or concerning the church in question.",
"See the example on p. 44 of the Guide to the KRL subject.",
"School services",
"The description of the aims of the primary- school stage (L97, p. 94, and L97S, p. 100) states that pupils should visit a church in the local community and attend a divine service. It is emphasised that such attendance is part of the school ’ s teaching (not an element of the church ’ s baptismal preparation). Some pupils who belong to traditions other than the Christian tradition may seek exemption from participation, for instance in a school service and the related activities. Such pupils must be offered differentiated teaching. If the pupils are present at the service, this can be arranged by, for instance, assigning them to observe the functions of the various stages of the liturgy in relation to the whole, to note how the hymns relate to the main theme of the service, or to see whether/how images, colours, texts and music all help to shed light on the theme of the service.",
"Other parents may notify complete exemption from any attendance at a divine service. Those pupils must be made acquainted with the Christian service by means other than attendance, for instance through classroom teaching with a focus on pictures, music and texts.",
"What has been said here about church visits can also apply to visits to mosques, synagogues, temples or other houses of religious assembly.",
"Illustration and the prohibition of images",
"See the more detailed discussion on p. 22 of the Guide to the KRL subject.",
"Especially challenging stories, parallel figures",
"See the more detailed discussion on pp. 30, 32, 50 and 52 of the Guide to the KRL subject.",
"6.4. Other areas",
"The Ministry has received questions concerning other aspects of the course in Christian knowledge and religious and ethical education, including:",
"Dramatisations",
"Plays, mime and dramatisations can contribute to sympathetic insight into the teaching material and to unity among pupils. Such approaches can at the same time involve the kinds of activity from which some parents/guardians wish to have their children exempted. This could for instance apply to dramatisations which include holy persons, such as Nativity plays.",
"Some may argue that it is the ‘ acting part of the work ’ from which exemption is being sought. That problem can be solved by giving the pupils concerned other important tasks connected with the dramatisation. Sets have to be constructed; lighting and sound need to be planned, set up and tested; programmes need to be prepared. An announcer and narrators are needed. Journalists are needed to interview the active participants in the programme, to describe the activities, and to edit the class newspaper for publication after the performance. These are some of the important assignments that can be carried out by pupils who are not going to have tasks relating directly to the dramatisation. These are also means whereby they can be naturally integrated into the class community, while at the same time having the opportunity to adopt a spectator ’ s stance with regard to the material being presented and its mode of presentation.",
"Other parents may say that their children are not to be included either in the dramatisation or in work connected with it. This must be respected, and other assignments must be prepared for those pupils.",
"...",
"7. Cooperation between schools and homes – openness and objectivity",
"If parents are to feel confident that teaching in the subject does not conflict with their own convictions, close cooperation between schools and homes is necessary.",
"On the basis of knowledge of the religious and philosophical backgrounds of parents, teachers can endeavour to plan their teaching so as to reduce the need for exemption to a minimum. A teaching plan for the subject should be drawn up as early as possible. In the plan the school should describe the offers of differentiation that are generally made in connection with different religious and philosophical backgrounds. When the plan is presented to the parents, it gives them the opportunity to consider the need, if any, for exemption from particular activities.",
"To request partial exemption, parents must send written notification to the school. They must state which activities in the school ’ s teaching they perceive as the exercise of another religion or adherence to another philosophy of life. Parents should then decide whether to opt for the general offer of differentiation, if the school has made such an offer, or, in addition, if appropriate, ask for a more individually adapted offer of differentiation. By means of the dialogue established in this connection between homes and schools, the specific teaching provisions for the pupils can be determined.",
"If parents notify the school that they want an exemption from the distinctly religious activities, described in the reasons for the legislation as ‘ reciting creeds or prayers, learning religious texts by heart, taking part in hymn singing, and attending rituals or divine services in different congregations ’ such notification will apply in general to that type of activity. A new notification for each individual religious activity is thus not necessary.",
"In the cooperation between schools and homes, school staff must show respect for the fact that pupils have different religious backgrounds. Special attention must be paid to this in contacts with linguistic and cultural minorities.",
"8. Administrative procedures",
"Municipal decisions concerning notifications of exemption are individual decisions under the Public Administration Act, and can accordingly be appealed to National Education Offices in accordance with section 34 (3) of the Compulsory School Act. A municipality can delegate its decision-making authority to the school principal. Matters must be considered in sufficient depth before decisions are taken; see section 17 of the Public Administration Act.",
"...",
"10. Textbooks as one of several teaching aids in the subject",
"The Ministry wishes to emphasise that it is the Curriculum that is binding on the teaching, not the textbooks. The textbooks on the subject are only one of several teaching aids that can be used to achieve the aims of the subject.",
"The textbooks used in compulsory school must be approved. Even if a textbook has been approved, there is a risk that it contains errors. When teachers have their attention called to possible errors in textbooks, they must look into the matter more closely so that the teaching given is correct.",
"Although the regulatory special review of books on the subject has been revoked ( section 4 of the former textbook regulation), the Ministry notes that the arrangement for the review of textbooks will be continued. The textbooks will be considered by religious and philosophical communities, among others, to ensure that the religions and philosophies of life are presented in accordance with their distinguishing characteristics.”",
"49. Norway ’ s Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999 ( referred to as “the Curriculum” ) stated:",
"“The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies. Important items in the Curriculum are accordingly the classical Bible stories and other biblical material, the main lines of development and major personalities in the history of Christianity, and the fundamentals of the Christian faith and Christian ethics. The subject also comprises the principal features of other living religions and philosophies of life and some of the major questions raised in philosophy and general ethics concerning the nature of man. The same pedagogical principles should be applied in the teaching of Christianity and in that of the other religions and orientations. The subject must be approached openly and contribute to insight, respect and dialogue across the boundaries between faiths and philosophies, and promote understanding and tolerance in religious and moral questions. The classroom is no place for the preaching of any particular faith. The subject gives knowledge about a faith, not instruction in it. It must also sustain the individual pupil ’ s sense of identity and cultural attachment, while at the same time furthering dialogue within a shared culture.",
"In order to meet different faiths and views of life with understanding, one needs to be able to place them in a context that is already familiar. The subject thus has various functions in compulsory school: to transmit a tradition, to maintain a sense of identity, and to build bridges which give insight and promote dialogue.",
"...",
"The structure of the subject",
"The primary stage",
"The intermediate stage",
"The lower",
"secondary stage",
"Bible study",
"Well-known",
"stories from",
"the Bible",
"Major narratives",
"in the Bible",
"Biblical genres,",
"the Bible",
"as Scripture,",
"Bible History",
"History of Christianity",
"Important single episodes",
"Early history:",
"trends, persons, cultural",
"expressions",
"Modern History: trends, person,",
"cultural",
"expressions",
"Contemporary Christian view of life",
"Festivals, symbols, Christianity",
"in the community",
"Christian faith",
"and ethics",
"Christian",
"Confessions, similarities",
"and differences",
"Other religions",
"Other religions",
"and orientations, stories",
"and festivals",
"Islam, Judaism, Hinduism,",
"Buddhism,",
"Secular orientation",
"Religious",
"expressions in our time",
"Ethics/philosophy",
"Ethical awareness: mine and yours,",
"me and others",
"Ethical awareness: values",
"and choices",
"Philosophical interpretations",
"of man: values and norms",
"Because the subject is new and intended for all pupils, it is essential that parents and pupils of different persuasions are well acquainted with the syllabus and its contents. To reassure parents with regard to the contents of the syllabus, importance has been attached to formulating the syllabus so that parents will find it easy to see what subject matter pupils will be encountering at the various stages. ”",
"50. The Curriculum set out the general aims of the subject and listed the objectives and main subject elements for grades 1 to 4, 5 to 7 and 8 to 10.",
"The general aims of the subject were described as:",
"“ • to make pupils thoroughly acquainted with the Bible and with Christianity as cultural heritage and as a living source of faith, morality, and a view of life;",
"• to make pupils familiar with the Christian and humanist values on which school education is based;",
"• to acquaint pupils with other world religions and orientations as living sources of faith, morality, and views of life;",
"• to promote understanding, respect and the capacity for dialogue between people with different views on questions of faith and ethical orientation of life; and",
"• to stimulate pupils ’ personal growth and development. ”",
"After setting out the objectives for grades 1 to 4, the Curriculum listed the main subject elements for these grades, each of which comprised the following titles : “Biblical narrative”; “ Narrative material from Church history ”; “Christian festivals, religious symbols, and the life of the local Christian community”; “Development of moral awareness: Me and others”. As to “ Other religious and ethical orientations” it included “Judaism”, “Islam”, “Hinduism”, “Buddhism”, “Humanism” and “Greek mythology”.",
"The Curriculum further set out the subject- related objectives for grades 5 to 7, which included this passage:",
"“ Christian faith and ethics",
"Pupils should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther ’ s Small Catechism.",
"Other religions",
"Pupils should study the main features of and important narratives from Islam, Judaism, Hinduism, and Buddhism.",
"Secular orientations",
"Pupils should know about secular orientations, the development of the humanist tradition, and the modern humanist view of life.”",
"The main subject elements for grades 5 to 7 encompassed : “Bible History”, “Early history of Christianity” (“the Middle Ages” for grade 6, and “the Reformation period” for grade 7), “Christian faith and ethics”. As to “Other religions”, the subject included “Islam” for grade 5, “ Judaism ” for grade 6, and “ Hinduism ” and “ Buddhism ” for grade 7. In addition, grades 5 to 7 contained elements for “Development of moral awareness: Values and choices” and “Secular orientations”.",
"For grade 6 it was stated, inter alia :",
"“ Christian faith and ethics",
"Pupils should have the opportunity to",
"– learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon on the Mount;",
"– learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today. ”",
"There was no equivalent in the list of items to “become acquainted with” in regard to “Other religions, Judaism”.",
"After indicating the subject- related objectives for grades 8 to 10, the Curriculum listed the main subject elements, namely, “The history of the Bible, literary genres in the Bible”; “The modern history of Christianity”; “Various contemporary interpretations of Christianity”; “Religious expressions in our time”; and “ Philosophical interpretations of man, values and norms”.",
"COMPLAINTS",
"51. The applicant parents complained that the refusal of the competent domestic authorities to grant their children a full exemption from the KRL subject violated the parents ’ rights under the Convention. The children ’ s compulsory attendance at religious instruction unjustifiably interfered with their parents ’ right to freedom of conscience and religion under Article 9 of the Convention. It further violated the parents ’ right under Article 2 of Protocol No. 1, second sentence, to ensure such education and teaching in conformity with their own religious and philosophical convictions.",
"52. In addition, the inconveniences resulting from the general aspects of the exercise of the right to partial exemption meant that non-Christian parents were faced with a greater burden than Christian parents, who had no reason for seeking an exemption from the KRL subject, which was designed in accordance with the premises of the majority. In their view this amounted to discrimination. Thus, there had also been a violation of Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1",
"53. The applicant parents complained under both Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1 on account of the refusals by the domestic authorities to grant their children full exemption from the compulsory KRL subject dealing with Christianity, religion and philosophy taught during the ten-year compulsory schooling in Norway.",
"54. The Court, leaving aside the fact that the children ’ s complaints under Article 9 of the Convention were declared inadmissible on 26 October 2004, considers that the parents ’ complaint falls most suitably to be examined under Article 2 of Protocol No. 1, as the lex specialis in the area of education, which reads:",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"A. The parties’ submissions",
"1. The applicants",
"55. The applicants maintained that the KRL subject was neither objective, nor critical nor pluralistic for the purposes of the criteria established by the Court in its interpretation of Article 2 of Protocol No. 1 in Kjeldsen, Busk Madsen and Pedersen v. Denmark (7 December 1976, Series A no. 23). In this context they also referred to the criteria of “neutral and objective” enunciated by the United Nations Committee in Hartikainen v. Finland in relation to the corresponding provision in Article 18 § 4 of the International Covenant on Civil and Political Rights. The Curriculum’s main intention being to strengthen the pupils ’ religious identity, the legal framework with a Christian object clause, a curriculum that fully adopted a religious outlook and praised the Christian belief and tradition, together with textbooks that contained traditional Christian preaching clearly indicated, in sum, that the Curriculum was not objective.",
"56. The issue whether the contested Norwegian primary- school subject constituted a violation of the relevant human rights standards on freedom of religion, parental rights, freedom of privacy and prohibition of discrimination ought to be seen in the broader context of a society with an extreme Christian predominance. Norway had a State religion, a State Church, with constitutional prerogatives being afforded to the Christian (Evangelical Lutheran) Faith. There was a Christian object clause for State schools and pre - schools. There were State Church priests in the armed forces, prisons, universities and hospitals. There were daily Christian devotions and services in State broadcasting. No less than 86% of the population belonged to the State Church, the Church of Norway.",
"57. Nevertheless, the right to freedom of religion for non-Christians had been taken care of in different ways, inter alia, by an exemption arrangement from the previous Christian Knowledge subject in State schools. This right to a general exemption – which had been enjoyed for more than 150 years – had been repealed when the KRL subject was introduced in 1997. One of the intentions of the government was to have all pupils together in the classroom when important issues like the combating of prejudice and discrimination, or better understanding of different backgrounds, were taught.",
"58. The applicants did not disagree with the general intention to promote intercultural dialogue – quite the contrary, they considered that many of the aims expressed by the government upon establishing the new subject were very good ones and strongly agreed with them. The problem was that the KRL subject simply did not achieve those aims, unlike the “philosophy of life” subject which the applicants favoured.",
"59. Referring to the mention of religious activities in the rule on partial exemption in section 2-4 of the Education Act 1998, the applicants found it hard to understand how this could be reconciled with the requirements that the teaching be “objective and neutral” or even “pluralistic and critical”.",
"60. The applicants disputed the contention that the KRL subject involved only a few activities that could be perceived as being of a religious nature. The Curriculum, the textbooks that were used in schools and all the information regarding the implementation of the Curriculum indicated that the main object of the subject – to strengthen the pupils ’ own Christian foundation – was also the main thread in the tuition. The principal intention behind the introduction of the KRL subject had been to secure the religious foundation for the majority of pupils who adhered to Christianity. Otherwise the introductory provision in the Education Act 1998 would not have been formulated as an obligation for the teacher to provide tuition in accordance with the Christian object clause.",
"61. The relevant textbooks contained parts that could be conceived as professing Christianity. Although the textbooks had not been formally designated as part of the subject ’ s legal framework, they had acquired official status by having been controlled and authorised by an official State agency, the Norwegian Textbook Agency ( Norsk Læremiddelsentral ).",
"62. A cornerstone in the partial - exemption arrangement was the separation between normative and descriptive knowledge. The pupils could be exempted from taking part in certain activities, but not from knowing the contents of the activities or tuition in question. They could be exempted from reciting from the Bible, singing songs, saying prayers, etc., but not from knowing what was recited, sung, prayed, etc. The whole idea behind the exemption arrangement had been that it was possible to maintain a mental “ separation ” between knowledge and participation. It presupposed that one could “ learn ” the text ( notably prayers, psalms, Biblical stories and statements of belief) without being subjected mentally to what constituted or might constitute unwanted influence or indoctrination. However, the evaluations made of the KRL subject had shown that that distinction had not been understood in practice, not even by the teachers. The parents in these applications had explained in their written testimonies how this separation did not function with regard to their children. Thus, partial exemption had not been a possible option for them.",
"63. When parents claimed partial exemption from parts of the tuition other than the religious activities listed on the form, they had to give “brief” reasons for their request in order to enable the schools to consider whether the activity might reasonably be perceived as being the practice of another religion or adherence to another philosophical conviction under section 2 ‑ 4 (4) of the Education Act 1998. It was not easy for all parents to have detailed knowledge of and to single out those parts of the tuition they disapproved of and to apply for an exemption, especially when the whole structure of the KRL subject was based on a religious conception which in principle was contrary to the applicants ’ philosophy of life.",
"64. For the applicants, it was highly unsatisfactory that their opinions and deeply personal philosophical conviction in this area should be communicated to and examined by school teachers and administrators. Even though the parents might not have had an obligation to state formally their own personal conviction, it was likely that this would have been revealed in the reasons that they provided in order to obtain a partial exemption. In the applicants ’ experience, this had been unworthy and undignified.",
"65. In practice, the partial exemption application procedure would apply to non-Christian parents only. Some of them were immigrants, with little or insufficient knowledge of the Norwegian school system and language and skills in conducting a theoretical dialogue about a religion with which they were not acquainted. For the applicants, however, all being ethnic Norwegians, this was not the case. Even so, despite some having excellent oral and written communication skills and some even being well acquainted with the Norwegian school system, it had been hard for them to communicate satisfactorily with the school administration in the exemption application procedure. One difficulty had related to revealing what the parents found to be inconsistent with their own philosophy of life. Another problem had been the practical arrangement of the subject. In order to distinguish which parts of the tuition they sought exemption from, the parents had to know exactly what tuition would be offered, at what time, what parts of the textbook would be applied and what activities were to be expected. They would have to follow the Curriculum and the tuition carefully, perhaps by “ interviewing ” their child on the progress and the contents of the Curriculum step by step. Even if the themes to be taught might seem acceptable in theory, the parents would have to make enquiries into how the teacher presented the material. The evaluation reports showed that it had been very hard to obtain relevant information in good time, which had also been the experience of the applicants.",
"66. Moreover, as a result of the partial- exemption arrangement, the relationship between parent and child suffered. The children ’ s function as a “ go-between ” between the parents and the school and the children ’ s feeling of pressure from being different from others had caused frustration and conflicts of loyalty between the applicants and their children, as had their sense of stigmatisation.",
"67. The partial- exemption arrangement had not worked for the applicants, who had tried this option but without it offering a practical remedy for them. The arrangement had implied exposure of their own philosophy of life – directly or indirectly – and had forced them to know in detail the elements of another philosophy of life (in order to be able to apply for an exemption). They had been heavily burdened by monitoring the tuition, passing on messages, giving reasons, and by frustration and stigmatisation. The applicants had experienced how their children had suffered under the pressure of being different from other children, acting as “go-betweens” between the home and the school and living with conflicts of loyalty. An exempted pupil might be removed from the classroom and placed in a separate room or might remain in the classroom and be told not to listen or to participate in the activity concerned. The arrangement offered ample potential for conflict and stigmatisation.",
"68. This being the case, the applicants had had no option other than to apply for full exemption, but had been denied this and had had to comply with a partial- exemption arrangement that did not operate in a manner that respected their rights.",
"69. In the applicants ’ view, the best way to combat prejudices and discrimination and to cater for mutual respect and tolerance, which was also an expressed aim of the new subject, was not by forcing people of non-Christian traditions and philosophies to participate in classes that predominantly featured the Christian religion. A better way would have been to maintain the former system with one subject for the majority of pupils coming from Christian families, including information on other philosophies of life, and one non-confessional subject based on common heritage, philosophy and a general history of religions and ethics for the others. Even better would have been to refrain from the Christian superiority integral to the Norwegian school system and to create a common, neutral and objective religion and philosophy of life subject without any form of religious activity or particular Christian privileges.",
"2. The Government",
"70. The Government stressed that it followed from the Court ’ s Kjeldsen, Busk Madsen and Pedersen judgment that no violation of Article 2 of Protocol No. 1 could be established on account of the absence of a right to full exemption from the KRL subject. As acknowledged in that judgment ( § 53), most knowledge-based education might raise issues of conviction. Parents were not even permitted to object to such education because, otherwise, “all institutionalised teaching would run the risk of proving impracticable”. A right to full exemption such as that claimed by the applicants here would even more clearly render institutionalised and mandatory teaching impracticable.",
"71. The Government submitted that, bearing in mind the Court ’ s partial decision on admissibility of 26 October 2004 delimiting the scope of the case, there were two issues arising. The first issue was whether the KRL subject in general involved the imparting of information and knowledge in a manner which objectively might be perceived as indoctrinating, that is, not objective, neutral and pluralistic. Should this be the case, the second issue would be whether a possibility of obtaining a full exemption was the only viable alternative that would accommodate the parents ’ wishes. The Court ’ s assessment of the KRL subject ought to be objective, rather than relying on the applicants ’ perceptions, and be based on the presumption that the KRL subject had been taught in conformity with existing regulations and guidelines. The applicants ’ perceptions of the KRL subject seemed to differ from what could objectively be inferred from the facts.",
"72. The KRL subject was designed to promote understanding, tolerance and respect among pupils of different backgrounds, and to develop respect and understanding for one ’ s own identity, the national history and values of Norway, and for other religions and philosophies of life. Accordingly, the KRL subject was an important measure for the fulfilment of Norway ’ s obligations under Article 13 § 1 of the United Nations Covenant on Economic, Social and Cultural Rights and Article 29 § 1 of the United Nations Convention on the Rights of the Child.",
"73. Approximately half the Curriculum pertained to the transmission of thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, and of knowledge of other Christian communities. The other half, approximately, was devoted to the transmission of knowledge of other world religions and philosophies, ethical and philosophical subjects, the promotion of understanding and respect for Christian and humanist values, and of understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions. Therefore, if the applicants – on behalf of their children – were to obtain full exemption, the children would be deprived of knowledge not only of Christianity but also of other religions and other philosophies of life and ethical and philosophical issues. In the view of the Government, the mere fact that the subject provided knowledge of world religions, philosophies of life, and ethical and philosophical topics, and that its purpose was to promote understanding of humanist values and dialogues between people with differing views, should be sufficient to conclude that a clause allowing for full exemption could not be required under the Convention. Such a requirement would prevent all compulsory tuition concerning not only religions, but also other philosophies of life and ethical issues. It would be untenable and run counter to Norway ’ s positive obligations under other international human rights treaties. On this ground alone it should be safe to conclude that parents could not claim a right under the Convention to a full exemption from KRL studies for their children.",
"74. The Government disagreed with the view implied by the applicants that the alleged lack of proportion could give rise to an issue under Article 9 of the Convention or Article 2 of Protocol No. 1. First of all, teaching pupils knowledge of Christianity could not in itself raise an issue under the Convention, as long as the instruction was carried out in an objective, pluralistic and neutral manner. Secondly, in current Norwegian society there were legitimate reasons for devoting more time to the knowledge of Christianity than to other religions and philosophies of life. These reasons had been set out in the travaux préparatoires documents, in the Curriculum and in the subsequent evaluation of the KRL subject.",
"75. The Christian object clause in section 1-2 of the Education Act 1998 could not, in the Government ’ s view, give rise to concerns under Article 9 of the Convention or Article 2 of Protocol No. 1. Firstly, the clause provided that it should apply only “in agreement and cooperation with the home”. Thus, any aid by schools in providing a Christian upbringing could only be given with the consent of the parents. Secondly, under section 3 of the Human Rights Act, section 1-2 of the Education Act 1998 ought to be interpreted and applied in accordance with the international human rights treaties that had been incorporated into domestic law through the Human Rights Act. Consequently, the Christian object clause did not authorise preaching or indoctrination of any kind in Norwegian schools.",
"76. Even if the KRL subject had been intended to be taught in a pluralistic, objective and critical manner, this fact should not exclude activities that could be perceived by parents as being religious, such as excursions to churches, synagogues, mosques or temples or attendance at rituals and religious services in various religious communities. Nor would it make it necessary to provide a possibility of obtaining full exemption from the KRL subject.",
"77. The problem of possible inclusion of activities that might run counter to the philosophical or religious convictions of parents had been given serious and significant thought by the government in the deliberations on how best to design the KRL subject. Both the government and the legislature recognised the parents ’ rights to ensure their children education and teaching in conformity with their own religious and philosophical convictions, but at the same time acknowledged that society had a legitimate interest in and an obligation to enhance mutual respect, understanding and tolerance between pupils with different backgrounds as regards religion or philosophy of life. Also, the interests of the pupils themselves in developing and strengthening their own identity and in widening their horizons through gaining knowledge of new religions and philosophies of life were recognised.",
"78. The Convention safeguarded against indoctrination, not against acquiring knowledge: all information imparted through the school system would – irrespective of subject matter or class level – to some degree contribute to the development of the child and assist the child in making individual decisions. Likewise, even objective, critical and pluralistic information on religion and philosophies of life would provide a backdrop against which the individual child could form his or her own thoughts and identity. The mere fact that such information and knowledge might contribute to the development of the child was not in contravention of the Convention. On the contrary, the Convention should also ensure the child ’ s right to education.",
"79. The travaux préparatoires clearly reflect that the chosen solution regarding exemptions outlined below was the result of a well-balanced compromise between these two interests. The dilemma these competing interests represented was solved through the establishment of three mechanisms that were intended to cater for the rights of parents to ensure their children education and teaching in conformity with their own religious and philosophical convictions: firstly, and perhaps most importantly, the provision contained in section 2-4 (4) of the Education Act 1998, which allowed for exemption from parts of the courses; secondly, differentiated teaching aimed at remedying problems encountered on the basis of parents ’ religious or philosophical convictions; thirdly, the parents ’ possibility of obtaining an administrative and/or judicial review if they perceived the education or teaching as not being in conformity with their convictions.",
"80. The requirement under section 2-4 of the Education Act 1998 that parents must apply for exemption from the KRL subject did not give rise to an interference with their privacy in the sense of Article 8 of the Convention. Reasons for the parents ’ request had to be given only with regard to activities that did not immediately appear to be the practice of a specific religion or adherence to a different philosophy of life. In cases where reasons had to be given, the parents were not required to provide information about their own religious or philosophical convictions.",
"81. In any event, the conditions imposed by the exemption clause could not be considered disproportionate or unreasonably burdensome, and thus warrant a right of full exemption. As argued above, requests for exemption did not need to be justified by the parents in cases where the activities clearly might be perceived to be of a religious nature. Reasons had to be given only if more extensive exemptions were sought and even then the reasons did not have to be comprehensive.",
"82. The Government also submitted that the applicants were not obliged to enrol their children in State schools. Individuals, groups of individuals, organisations, congregations or others could, upon application, establish their own schools or provide parental instruction in the home. Therefore, the Norwegian Humanist Association, or parents who did not want their children to participate in the KRL subject despite the partial- exemption clause, were at liberty to avoid the problem by establishing alternative schools, either on their own or in cooperation with others of the same conviction. This was a realistic and viable alternative as regards economic risk as well, as more than 85% of all expenditure connected to establishing and running private schools was publicly funded.",
"83. The applicants ’ affirmation that no Christian parents had applied for exemption or forwarded complaints with regard to the KRL subject was unfounded. Although the Government kept no statistics on the cultural background of parents who sought exemption from the KRL subject, it emerged that several Christian communities had established private schools on account of their dissatisfaction with the tuition of Christianity provided in State schools. Several of these schools had been established after the KRL subject had been introduced in 1997. There were now eighty-two registered private schools with a philosophy-of-life background. Since 2001, thirty-one of all thirty-six applications concerned the establishment of new Christian private schools. It would therefore be safe to assume that certain parents with a Christian philosophy of life had been dissatisfied with certain elements of the KRL subject and had applied for exemptions.",
"B. Assessment by the Court",
"1. General principles",
"84. As to the general interpretation of Article 2 of Protocol No. 1, the Court has in its case-law (see, in particular, Kjeldsen, Busk Madsen and Pedersen, cited above, § § 50 - 54; Campbell and Cosans v. the United Kingdom, 25 February 1982, § § 36-37, Series A no. 48; and Valsamis v. Greece, 18 December 1996, § § 25-28, Reports of Judgments and Decisions 1996 ‑ VI ) enounced the following major principles:",
"(a) The two sentences of Article 2 of Protocol No. 1 must be interpreted not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 5 2 ).",
"(b) It is on to the fundamental right to education that is grafted the right of parents to respect for their religious and philosophical convictions, and the first sentence does not distinguish, any more than the second, between State and private teaching. The second sentence of Article 2 of Protocol No. 1 aims in short at safeguarding the possibility of pluralism in education, which possibility is essential for the preservation of the “ democratic society ” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 50).",
"(c) Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents ’ convictions, be they religious or philosophical, throughout the entire State education programme (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 51). That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the “ functions ” assumed by the State. The verb “respect” means more than “ acknowledge ” or “ take into account ”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “ opinions ” and “ ideas ”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, cited above, §§ 25 and 27, and Campbell and Cosans, cited above, §§ 36- 37).",
"(d) Article 2 of Protocol No. 1 constitutes a whole that is dominated by its first sentence. By binding themselves not to “ deny the right to education ”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 52, and Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, Series A no. 6, pp. 3 1 -32, § 4 ).",
"(e) It is in the discharge of a natural duty towards their children – parents being primarily responsible for the “ education and teaching ” of their children – that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education ( see Kjeldsen, Busk Madsen and Pedersen, ibid. ).",
"(f) Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Valsamis, cited above, § 27).",
"(g) However, the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era ( see Valsamis, cited above, § 28). In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53).",
"(h) The second sentence of Article 2 of Protocol No. 1 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents ’ religious and philosophical convictions. That is the limit that must not be exceeded ( ibid. ).",
"(i) In order to examine the disputed legislation under Article 2 of Protocol No. 1, interpreted as above, one must, while avoiding any evaluation of the legislation ’ s expediency, have regard to the material situation that it sought and still seeks to meet. Certainly, abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents ’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism ( ibid., § 54).",
"2. Application of those principles to the present case",
"85. In applying the above principles to the case under consideration the Court will have regard to the decisions on admissibility of 26 October 2004 and 1 4 February 2006, defining the scope of the case to be examined on the merits (see paragraph 8 above). The question to be determined is whether the respondent State, in fulfilling its functions in respect of education and teaching, had taken care that information or knowledge included in the Curriculum for the KRL subject be conveyed in an objective, critical and pluralistic manner or whether it had pursued an aim of indoctrination not respecting the applicant parents ’ religious and philosophical convictions and thereby had transgressed the limit implied by Article 2 of Protocol No. 1. In examining this question, the Court will consider, in particular, the legislative framework of the KRL subject as it applied generally at the time when the case stood before the national courts.",
"86. From the outset it should be observed that Article 2 of the Constitution, which in its first paragraph guarantees freedom of religion, provides in its second paragraph that the Evangelical Lutheran Religion is to be the State ’ s official religion and confers on its adherents an obligation to educate their children likewise (see paragraph 9 above).",
"87. What is central to the present case is the legal framework as laid down, in particular, in sections 1-2(1) and 2-4 of the Education Act 1998, Circulars F-90-97 and F-03-98 issued by the Ministry, and the relevant parts of the Ten- Year Compulsory Schooling Curriculum. Regard should also be had to the legislative intentions behind the KRL subject as expressed during the preparatory works. In this connection it should be noted that the issue whether the teaching of the applicants ’ children had occurred in a manner contrary to the Convention falls outside the ambit of the cases as delimited by the decision on admissibility of 26 October 2004. This also applies to their argument that the school manuals had amounted to preaching and had been capable of influencing the pupils.",
"88. Turning to the drafting history first, it should be reiterated that a prevailing intention behind the introduction of the KRL subject was that, by teaching Christianity, other religions and philosophies together, it would be possible to ensure an open and inclusive school environment, irrespective of the pupil ’ s social background, religious creed, nationality or ethnic group and so on. The intention was that the school should not be an arena for preaching or missionary activities but a meeting place for different religious and philosophical convictions where pupils could gain knowledge about their respective thoughts and traditions (see paragraph 15 above). In the view of the Court, these intentions were clearly consonant with the principles of pluralism and objectivity embodied in Article 2 of Protocol No. 1.",
"89. The said intentions were indeed reflected in section 2-4 of the Education Act 1998 (see paragraph 2 3 above). As can be seen from its wording, the provision laid emphasis on the transmission of knowledge about not only Christianity but also other world religions and philosophies. It moreover stressed the promotion of understanding and respect for, and the ability to maintain dialogue between, people with different perceptions of beliefs and convictions. It was to be an ordinary school subject that should normally bring together all pupils and should not be taught in a preaching manner. The different religions and philosophies were to be taught from the standpoint of their particular characteristics and the same pedagogical principles were to apply to the teaching of the different topics. From the drafting history it emerges that the idea was that the aim of avoiding sectarianism and fostering intercultural dialogue and understanding could be better achieved with an arrangement, such as here, bringing pupils together within the framework of one joint subject rather than an arrangement based on full exemption and splitting pupils into sub-groups pursuing different topics (see paragraph 1 5 above). Moreover, it should be noted that, as follows from the statement of principle in paragraph 84 (g) above, the second sentence of Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education. That being so, the fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the Court ’ s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination (see, mutatis mutandis, Angeleni v. Sweden, no 104 9 1/83, Commission decision of 3 December 1986, Decisions and Reports 51 ). In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State ’ s margin of appreciation in planning and setting the curriculum.",
"90. However, the Court observes that, while stress was laid on the teaching being knowledge-based, section 2-4(3) provided that the teaching should, subject to the parents ’ agreement and cooperation, take as a starting- point the Christian object clause in section 1-2(1), according to which the object of primary and lower secondary education was to help give pupils a Christian and moral upbringing (see paragraphs 2 2 -2 3 above).",
"91. It is further to be noted that the Christian object clause was compounded by a clear preponderance of Christianity in the composition of the subject.",
"92. In this regard, reference should be made to the stated aim in section 2-4(1)(i) of the Education Act 1998 to “transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith” (emphasis added). In contrast, no requirement of thoroughness applied to the knowledge to be transmitted about other religions and philosophies (see paragraph 2 3 above).",
"In addition, pursuant to section 2-4(1)(ii), the transmission of knowledge of other Christian communities was an aim.",
"The difference as to emphasis was also reflected in the Curriculum, where approximately half of the items listed referred to Christianity alone whereas the remainder of the items were shared between other religions and philosophies. The introduction stated that “The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies [emphasis added]” (see paragraph 4 9 above).",
"93. It is unclear whether the word “Faith” in item (i) implied qualitative differences compared to non-Lutheran faiths and other philosophies (see paragraph 2 3 above). In any event, the above factors laying stress on Christianity must have had implications for the operation of another stated aim in section 2-4(1), namely to “(iv) promote understanding and respect for Christian and humanist values [emphasis added]” ( ibid. ), indicating something more and other than the mere transmission of knowledge. In this regard, it may be noted that the Curriculum contained certain nuances regarding the teaching objectives, for example, pupils in grades 5 to 7 “should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther ’ s Small Catechism” [emphasis added]. Regarding other religions, however, “pupils should study the main features of and important narratives from Islam, Judaism, Hinduism and Buddhism”; and pupils should know about secular orientation, the development of humanist traditions” and so on [emphasis added]. For grade 6 it was stated that “[p]upils should have the opportunity to learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon of the Mount, [ and ] learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today”. There was no equivalent in the list of items “to become acquainted” with in regard to “Other religions, Judaism” (see paragraph 50 above ).",
"94. Moreover, section 2-4(4) implied that pupils could engage in “religious activities”, which would in particular include prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature (see paragraphs 2 3 - 2 4 above). While it was not foreseen that such activities should relate exclusively to Christianity, but could also concern other religions, for example a visit to a mosque in the case of Islam, the emphasis on Christianity in the Curriculum would naturally also be reflected in the choice of educational activities proposed to pupils in the context of the KRL subject. As was recognised in the partial - exemption rule in section 2-4 of the Education Act 1998 and Circular F-03-98, it would be reasonable for parents to notify their intention regarding an exemption for the kinds of religious activities referred to above. In the Court ’ s view, it can be assumed that participation in at least some of the activities concerned, especially in the case of young children (see, mutatis mutandis, Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V), would be capable of affecting pupils ’ minds in a manner giving rise to an issue under Article 2 of Protocol No. 1.",
"95. Thus, when seen together with the Christian object clause, the description of the contents and the aims of the KRL subject set out in section 2-4 of the Education Act 1998 and other texts forming part of the legislative framework suggest that not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies. In view of these disparities, it is not clear how the further aim, set out in item (v), to “ promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions ” could be properly attained. In the Court ’ s view, the differences were such that they could hardly be sufficiently attenuated by the requirement in section 2-4 that the teaching follow a uniform pedagogical approach in respect of the different religions and philosophies (see paragraph 2 3 above).",
"96. The question then arises whether the imbalance highlighted above could be said to have been brought to a level acceptable under Article 2 of Protocol No. 1 by the possibility for pupils to request partial exemption from the KRL subject under section 2-4(4) of the Education Act 1998. Under this provision “ [ a ] pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life”.",
"In this regard the Court reiterates that, as pointed out in its admissibility decision of 14 February 2006, the limitations on the scope of the case that followed from the decision of 26 October 2004 declaring parts of the application inadmissible do not prevent it from considering the general aspects of the partial- exemption arrangement in its examination of the complaint regarding the refusal of full exemption (see paragraph 8 above).",
"97. In this connection the Court notes that the operation of the partial- exemption arrangement presupposed, firstly, that the parents concerned be adequately informed of the details of the lesson plans to be able to identify and notify to the school in advance those parts of the teaching that would be incompatible with their own convictions and beliefs. This could be a challenging task not only for parents but also for teachers, who often had difficulty in working out and dispatching to the parents a detailed lesson plan in advance (see paragraph 2 9 above). In the absence of any formal obligation for teachers to follow textbooks (see point 10 in the citation at paragraph 4 8 above), it must have been difficult for parents to keep themselves constantly informed about the contents of the teaching that went on in the classroom and to single out incompatible parts. To do so must have been even more difficult where it was the general Christian leaning of the KRL subject that posed a problem.",
"98. Secondly, pursuant to Circular F-03-98, save in instances where the exemption request concerned clearly religious activities – where no grounds had to be given – it was a condition for obtaining partial exemption that the parents give reasonable grounds for their request (see the citation from the Circular in the Supreme Court ’ s reasoning at paragraph 4 2 above). The Court observes that information about personal religious and philosophical conviction concerns some of the most intimate aspects of private life. It agrees with the Supreme Court that imposing an obligation on parents to disclose detailed information to the school authorities about their religious and philosophical convictions may constitute a violation of Article 8 of the Convention and possibly also of Article 9 ( ibid. ). In the present instance, it is important to note that there was no obligation as such for parents to disclose their own convictions. Moreover, Circular F-03-98 drew the school authorities ’ attention to the need to take duly into account the parents ’ right to respect for their private life ( ibid. ). The Court finds, nonetheless, that inherent in the condition to give reasonable grounds was a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions. The risk of such compulsion was all the more present in view of the difficulties highlighted above for parents in identifying the parts of the teaching that they considered as amounting to the practice of another religion or adherence to another philosophy of life. In addition, the question whether a request for exemption was reasonable was apparently a potential breeding ground for conflict, a situation that parents might prefer simply to avoid by not expressing a wish for exemption.",
"99. Thirdly, the Court observes that even in the event that a parental note requesting partial exemption was deemed reasonable, this did not necessarily mean that the pupil concerned would be exempted from the part of the curriculum in question. Section 2-4 provided that “the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum”. A detailed outline with examples of how differentiated teaching was to be implemented may be found in Circular F ‑ 03-98, from which it can be seen that the teacher was to apply, in cooperation with the parents, a flexible approach, having regard to the parents ’ religious or philosophical affiliation and to the kind of activity in issue. The Court notes in particular that for a number of activities, for instance prayers, the singing of hymns, church services and school plays, it was proposed that observation by attendance could suitably replace involvement through participation, the basic idea being that, with a view to preserving the interest of transmitting knowledge in accordance with the curriculum, the exemption should relate to the activity as such, not to the knowledge to be transmitted through the activity concerned (see paragraph 4 8 above). However, in the Court ’ s view, this distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such. Besides, on a purely practical level, parents might have misapprehensions about asking teachers to take on the extra burden of differentiated teaching (see paragraph 2 9 above).",
"100. In the light of the above, the Court finds that the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from making such requests. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced by differentiated teaching. This could hardly be considered consonant with the parents ’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” ( see Öcalan v. Turkey [GC], no. 46221/99, § 135, ECHR 2005 ‑ IV ).",
"101. According to the Government, it would have been possible for the applicant parents to seek alternative education for their children in private schools, which were heavily subsidised by the respondent State, as it funded 85% of all expenditure connected to the establishment and running of private schools. However, the Court considers that, in the instant case, the existence of such a possibility could not dispense the State from its obligation to safeguard pluralism in State schools which are open to everyone.",
"102. Against this background, notwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1.",
"Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 8 AND 9 AND ARTICLE 2 OF PROTOCOL No. 1",
"103. The applicants argued that the system of partial exemption entailed difficulties and burdens for the parents that gave rise to discrimination. In contrast, the previous system with a general exemption and a non-confessional, pluralistic philosophy of life subject for those exempted would have satisfied both the school obligations and the parental rights as protected by the Convention.",
"104. The Government disputed the contention that requiring parents to request exemption from particular elements of the KRL subject (partial exemption) amounted to discrimination in violation of Article 14. The exemption clause of the Education Act 1998 was non-discriminatory. Exemptions were available to the same extent for all parents, regardless of, in the words of Article 14, “sex, race, colour, language, religion, political or other opinion, national or social origin ... ”. The exemption clause did not draw a line between Christians on the one hand and non-Christians on the other hand. Other subjects, such as history, music, physical education and social studies, might also give rise to religious or ethical issues. The exemption clause included in section 2-4 of the Education Act 1998 applied to all subjects. In the reasoning of the parents, allowing for only partial exemption from these subjects would also be discriminatory. In the Government ’ s view, the only viable system both for those subjects and for the KRL subject was to allow for partial exemptions. If that were to constitute discrimination, Article 14 would render the implementation of most compulsory education impossible.",
"105. The Court, having regard to its findings above (see paragraphs 96 to 102 above), does not find it necessary to carry out a separate examination in relation to Article 14 of the Convention taken in conjunction with Articles 8 and 9 and Article 2 of Protocol No. 1.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"106. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"107. The applicants sought no compensation for pecuniary damage but claimed an amount in respect of non-pecuniary damage, the amount of which was to be determined by the Court according to its own discretion, for suffering and distress caused by the violation of the Convention in their case.",
"108. The Government did not offer any comments on the above claim.",
"109. The Court ’ s finding of a violation will have effects extending beyond the confines of this particular case, since the violation found stems directly from the contested legal framework and not from its manner of implementation. In view of the readiness expressed by the Government to review the KRL subject, the Court is of the opinion that its finding of a breach of Article 2 of Protocol No. 1 constitutes sufficient just satisfaction for the purposes of Article 41 of the Convention.",
"B. Costs and expenses",
"110. The applicants further sought the reimbursement of legal costs and expenses totalling 979,798 Norwegian kroner (“NOK”, approximately 117,000 euros (“EUR”)), in respect of the following items:",
"(a) NOK 308,558 incurred before the domestic courts;",
"(b) NOK 637,066 for the lawyer ’ s work in the proceedings before the Court from 2002 to 2006;",
"(c) NOK 34,174 for the travel expenses for counsel, advisers and the applicants in connection with the oral hearing in Strasbourg on 6 December 2006.",
"The above amounts included value- added tax (“VAT”).",
"111. The Government stated that they had no objection to the above claims.",
"112. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award items (a) and (c ) in their entirety. As to item (b), however, the Court, noting that parts of the application were declared inadmissible, is not satisfied that all the costs and expenses were necessarily incurred in order to obtain redress for the violation of the Convention. It considers it reasonable to award a total sum of EUR 70,000 for the applicants ’ costs and expenses (inclusive of VAT).",
"C. Default interest",
"113. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
38 | Ali v. the United Kingdom | 11 January 2011 | The applicant was excluded from school during a police investigation into a fire at his school, because he had been in the vicinity at the relevant time. He was offered alternative schooling and, after the criminal proceedings against him were discontinued, his parents were invited to a meeting with the school to discuss his reintegration. They failed to attend and also delayed deciding on whether they wanted him to return to the school. His place was given to another child. | The Court noted that the right to education under the Convention comprised access to an educational institution as well as the right to obtain, in conformity with the rules in each State, official recognition of the studies completed. Any restriction imposed on it had to be foreseeable for those concerned and pursue a legitimate aim. At the same time, the right to education did not necessarily entail the right of access to a particular educational institution and it did not in principle exclude disciplinary measures such as suspension or expulsion in order to comply with internal rules. In the instant case, the Court found that the exclusion of the applicant had not amounted to a denial of the right to education. In particular, it had been the result of an ongoing criminal investigation and as such had pursued a legitimate aim. It had also been done in accordance with the 1998 Act and had thus been foreseeable. In addition, the applicant had only been excluded temporarily, until the termination of the criminal investigation into the fire. His parents had been invited to a meeting with a view to facilitating his reintegration, yet they had not attended. Had they done so, their son’s reintegration would have been likely. Further, the applicant had been offered alternative education during the exclusion period, but did not take up the offer. Accordingly, the Court was satisfied that his exclusion had been proportionate to the legitimate aim pursued and had not interfered with his right to education. There had, therefore, been no violation of Article 2 (right to education) of Protocol No. 1 to the Convention. | Children’s rights | Right to education (Article 2 of Protocol No. 1) | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1987 and lives in Milton Keynes.",
"6. The applicant attended The Lord Grey, a maintained secondary (foundation) school (“the school”) (see paragraph 23 below). On 8 March 2001 a fire was discovered in a waste paper basket in a classroom. The fire brigade took the view that the fire had been started deliberately and the police were informed. The applicant and two other pupils were identified as being in the vicinity of the classroom at the time the fire was started. The Deputy Head advised the three boys that they should not return to the school until the police investigation was completed. Contrary to the statutory procedure for school exclusions set out in sections 64 – 68 of the School Standards and Framework Act 1998 (“the 1998 Act”) and the Department for Education and Skills Circular 10/99 (“the DfES circular”), no time limit was placed on the applicant's exclusion (see paragraphs 22 – 24 below).",
"7. On 21 March 2001 the Head Teacher wrote to the applicant's parents to tell them that he remained excluded from school until 5 April 2001. She offered to provide extra work for the applicant and stated that if his parents so wished, they could write to the Chairman of Governors to discuss the matter with them. This letter did not comply with the 1998 Act and the DfES circular as it failed to advise the applicant's parents that they had a right of appeal to the Governors of the School. Moreover, the Governors also failed in their duty to hold a hearing to confirm the exclusion or re-instate the applicant as required under the 1998 Act.",
"8. On 25 April 2001 the Deputy Head Teacher wrote to the applicant's parents to exclude him further until 15 May 2001. The letter was drafted in similar terms to that of 21 March 2001, and for the same reasons it failed to comply with the statutory requirements in the 1998 Act and the DfES circular.",
"9. During the period of exclusion, the school had been sending the applicant revision-based, self-assessing work in mathematics, English and science. This continued until 14 May 2001, the date of the applicant's final Standard Assessment Tests (“SATs”). He was permitted to attend school from 8 to 14 May 2001 in order to sit these examinations.",
"10. On 8 May 2001 the Personnel and Resourcing Committee of the Governing Body of the school met and were informed that the three pupils suspected of involvement in the fire had been excluded. Contrary to the requirements of the 1998 Act, the Governing Body did not convene a Governor's Disciplinary Committee or consider either the exclusion of the applicant or whether he should be reinstated.",
"11. The applicant was charged with the offence of arson against the school and he entered a not-guilty plea. On 25 May 2001 the Deputy Head Teacher wrote again to the applicant's parents. She indicated that as some of the witnesses in the case were students at the school, the applicant and the other two boys could not be permitted to return until the proceedings were concluded. She further indicated that she was making a referral to the access panel for alternative provision for the applicant's education. Finally, she advised the applicant's parents that he was being excluded for a further twenty days from 14 May 2001 and that the school would continue to set work as appropriate. The applicant's parents were asked to contact the school to arrange to collect the work. They did not contact the school and no work was set after 14 May 2001.",
"12. On 25 May 2001 a form referring the applicant to the Local Education Authority (“LEA”) for the provision of alternative education was finalised, although it was not received by the LEA until 8 June 2001.",
"13. Under the 1 998 Act there was a standard 45- day maximum period for fixed term exclusions. That 45 - day period expired on 6 June 2001.",
"14. On 18 June 2001 the Crown Prosecution Service notified the applicant's solicitors that the prosecution had been discontinued on the ground that there was insufficient evidence for there to be a realistic prospect of conviction. The following day the applicant attended court and the proceedings were formally ended. He then went to the school to meet with the Head Teacher, who advised him that she would act to arrange his re-entry as soon as she received written confirmation of the cessation of criminal proceedings. She received a fax to this effect from the court on 22 June 2001 and official notification from the police on 3 July 2001. On 3 July 2001 she wrote to the applicant's parents, inviting them to attend a meeting on 13 July 2001 to facilitate his re-integration. The invitation was extended again on 4 July 2001.",
"15. The LEA's access panel met on 19 June 2001, unaware that proceedings against the applicant had been discontinued. The panel recommended that the applicant should be provided with tuition by the Pupil Referral Unit (“PRU”) until a decision was taken on his future at the school. The PRU offers part-time education to children who are out of school, generally because they have been excluded, but it is not required to provide the full national curriculum. On 27 June 2001 the LEA's Flexible Learning Co-ordinator wrote to the applicant's parents to inform them that the PRU would provide tuition until term ended on 20 July 2001 while the school resolved the exclusion issue. The school alleged, and the domestic courts subsequently accepted, that the Flexible Learning Co-ordinator had again contacted the applicant's parents in early July 2001 and they had declined the offer of tuition. The applicant's parents, however, deny that any offer was made at the beginning of July.",
"16. The applicant's parents did not attend the meeting with the Head Teacher on 13 July 2001. The reason for non-attendance was heavily contested but the judge at first instance concluded that they had chosen to stay away. One of the other two boys did attend and was admitted back to the school. However, as a consequence of their non-attendance, the Head Teacher wrote to the applicant's parents to advise them that she was removing the applicant from the school roll. The school governors and the LEA were also copied in. The applicant's name remained on the roll until the middle of October 2001 although he was not provided with any education by the school during this period.",
"17. In September 2001 the applicant was due to begin the first term of the first year of his GCSE studies. He did not return to the school. At the end of September 2001, the LEA's welfare service completed a notification of absence. On 5 October 2001 the LEA wrote to the Head Teacher, stating that the applicant was in Bangladesh and that a place at the school was not required for him. The judge at first instance accepted that this was wrong: the applicant had not been in Bangladesh and had been at home all along. Neither the school nor the LEA contacted the applicant again before removing his name from the roll, and the applicant and his parents were not subsequently informed of the removal.",
"18. In mid-October 2001 the applicant's family met with the Flexible Learning Co-ordinator. At this stage they were unsure about whether they wished the applicant to return to the school. They were advised to decide quickly, and to arrange interviews either at the school or at other schools so that he could resume his education on a full-time basis. From about the third week in October, the applicant's parents made it clear that he wished to return to the school. On 6 November 2001 the applicant's father wrote to the Head Teacher formally to request his re-instatement. On 14 November 2001 the Deputy Head Teacher replied, advising that the applicant's name had been removed from the roll, that his place had been allocated to a student on the waiting list and that the school was now oversubscribed in his year group. The applicant's father was advised to contact the LEA to find another school place. On 20 January 2002 the applicant was admitted to a new school, the Leon School.",
"19. The applicant issued a free-standing human rights claim against the school in the County Court, claiming, inter alia, that his right to education had been violated contrary to Article 2 of Protocol No. 1 to the Convention. The LEA was not a party to the proceedings. The case was transferred to the High Court. In rejecting the application, the judge held that the school was not the cause of the respondent's lack of suitable education between 13 July and the end of the summer term on 20 July because his family had declined the LEA's offer of tuition. The cause of the respondent's lack of schooling or education during the autumn of 2001 was more complex to ascertain but it was the LEA's responsibility to provide suitable education and there were educational facilities available to him. Thus although the decisions to exclude the respondent and to remove him from the roll were unlawful in domestic law, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under Article 2.",
"20. On appeal, the Court of Appeal found that the provision of self-assessing work during the first 45 days of exclusion amounted to sufficient access to education to answer the applicant's Convention claim. However, the Court of Appeal held that the respondent's right to education was denied between 7 June and 13 July, notwithstanding that the school was still offering to provide him with substitute work to do at home, a matter held to be relevant only to damages. In relation to the last phase of the respondent's exclusion, from 14 July 2001 – 20 January 2002, the Court of Appeal regarded removal of the respondent's name from the school roll as improper, although giving rise to no separate legal consequences. But the respondent's exclusion during this period was, as the judge held, unlawful and unreasonable. In para 64 of the judgment the Court of Appeal concluded:",
"“So characterised, the exclusion of [the respondent] from 14 July until he was finally placed in a new school amounts, in my judgment, to a further denial of his Convention right to education. It was complete and it was prolonged. It was not terminated by the deletion of [the respondent's] name from the school roll because there was no lawful ground for deletion. To the extent that it may nevertheless have been acquiesced in, the damage may be mitigated. But this is not our present concern, and it will require (if the case goes that far) a factual inquiry into a number of things including the family's state of knowledge and understanding.”",
"21. In paragraph 68, the Court of Appeal rejected the school's further and fundamental argument that:",
"“ ... the bare existence of the education authority's fallback duty, together with [the respondent's] right to seek to enforce it, relieves the school either of its obligations or of the legal consequences of failing to discharge them. On the contrary, it is on the two public authorities who are the present respondents (or put more realistically, the school) that the state has chosen to devolve the material elements of the obligation which it has undertaken to provide universal secondary education. It is the head teacher and the governing body who in law bear the primary duty to educate a child who has been accepted in their school and, as a corollary, not to exclude him except as authorised by law.”",
"22. The school was granted leave to appeal to the House of Lords. In the course of the proceedings, the applicant did not contest the lower courts'rejection of his complaint that the period of exclusion between 9 March 2001 and 6 June 2001 had violated his rights under Article 2 of Protocol No. 1. In relation to the period of exclusion after 6 June 2001, the House of Lords unanimously held, albeit for different reasons, that there had been no violation of Article 2 of Protocol No. 1. The majority accepted that the applicant's exclusion from school was at times unlawful, but held that there would be a denial of the Convention right only if there were a systemic failure of the education system which resulted in the applicant's not having access to a minimum level of education. As regards the scope of Article 2 of Protocol No. 1, Lord Hoffman stated that:",
"“This does not however guarantee access to any particular educational institution the domestic system does provide: see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a right to remain in any particular institution. Everyone is no doubt entitled to be educated to a minimum standard ( R (Holub) v Secretary of State for the Home Department [2001] 1 WLR 1359, 1367) but the right under article 2 extends no further.”",
"23. The House of Lords found that in this case there was no systemic failure of the education system : the applicant's parents failed to collect work from the school; the offer of tuition from the PRU was declined; the applicant's parents failed to attend the meeting at the school on 13 July 2001; and finally, during the autumn the LEA's attempts to secure the applicant's re-admission to school were thwarted by his parents'uncertainty. Baroness Hale of Richmond, however, was concerned that the applicant had been let down badly by the school, although she also allowed the appeal because, in view of the judge's findings, it would not have been just to require the school to pay damages when the applicant's parents had refused various offers of tuition. Nevertheless she indicated that this was the paradigm of a case in which it would be just and appropriate to grant the applicant a declaration that the school had acted in a way that was incompatible with his rights under Article 2 of Protocol No.1."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"24. Section 10 of the Education Act 1996 (“the 1996 Act”) places on the Secretary of State for the Home Department the general duty of promoting education for the people of England and Wales. This obligation has been largely discharged by LEAs. Pursuant to sections 13 – 18 of the 1996 Act, the LEA has a general responsibility for education and is required to secure that efficient primary and secondary education are available to meet the needs of the population of their area. Section 19(1) of the 1996 Act further provides that each LEA shall make arrangements for the provision of suitable education at school for those children of compulsory school age who, by reason of exclusion, may not otherwise receive suitable education. Moreover, the DfES circular further provides that the LEA should ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile.",
"25. Foundation schools were established under section 20 of the School Standards and Framework Act 1998 (“the 1998 Act ”). They have wider self-governing functions than other maintained schools. Pursuant to section 15 of the 1998 Act, LEAs can only intervene in the management of a Foundation school if there has been a serious breakdown in the way the school is managed or governed, or the safety of the pupils or staff is threatened. General responsibility for the conduct of the school lies with the governing body (section 38 of the 1998 Act), while the Head Teacher is responsible for the internal organisation, management and control of the school (section 61 of the 1998 Act and Regulation 5(1) of the Education (School Government) (Terms of Reference) ( England ) Regulations 2000).",
"26. The legislative provisions concerning school exclusions are contained in sections 64 – 68 of the 1998 Act and the DfES circular. Pursuant to these sections, a Head Teacher of a maintained school may exclude a pupil for a fixed period or permanently, but the pupil may not be excluded for one or more fixed periods which amount to more than 45 days in one school year. Exclusions should be for the shortest time necessary, and should not be used for, inter alia, punishing pupils for the behaviour of parents. Where a pupil is excluded, the Head Teacher must take reasonable steps to inform relevant persons (in this case, the parents) of the period of exclusion, the reasons for the exclusion, and that he or she may make representations to the governing body. If a pupil is excluded for more than 5 days in any one term, the Head Teacher must inform the LEA and the governing body. The governing body must then consider the circumstances in which the pupil was excluded, any representations made by a relevant person, and, where practical, whether the pupil should be reinstated. The LEA must make arrangements for enabling the relevant person to appeal against any decision of the governing body not to reinstate a pupil who has been permanently excluded.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 TO THE CONVENTION",
"27. The applicant complained that his exclusion from school violated his right to education, as provided in Article 2 of Protocol No. 1 to the Convention, which reads as follows:",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"28. The Government contested that argument.",
"A. Admissibility",
"29. The Government submitted that the applicant had failed to exhaust domestic remedies. Had he taken up the offer of alternative education at the PRU and considered it to be insufficient to meet his entitlement under Article 2 of Protocol No. 1 to the Convention, he could have brought judicial review proceedings against the Local Education Authority relying on Article 2 of Protocol No. 1 together with the Human Rights Act 1998. Similarly, if the LEA had failed in its obligation to provide section 19 education at all, judicial review proceedings could have been brought. In fact, no such proceedings were brought and at no time did the applicant seek to join the LEA to the domestic court proceedings.",
"30. The Government therefore argued that the application should be declared inadmissible.",
"31. The applicant, on the other hand, submitted that the judgment of the House of Lords showed that he had exhausted the remedies open to him in domestic law. Had he taken up the offer of education at the PRU and brought judicial review proceedings, the relevant question for the court would have been whether the education provided at the PRU was “suitable”. The applicant's case throughout had been that it was not suitable because it did not cover the whole national curriculum, and this was the exact point litigated before the High Court, the Court of Appeal and the House of Lords.",
"32. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003).",
"33. The Court observes that in the proceedings before the House of Lords, the applicant did not contest the lower courts'rejection of his complaint that the period of exclusion between 9 March 2001 and 6 June 2001 violated his rights under Article 2 of Protocol No. 1. Consequently, in relation to this period of exclusion, the Court finds that the applicant has not exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention.",
"34. The applicant's complaints concerning the period of exclusion which began on 6 June 2001 and ended on 20 January 2002 were raised in the proceedings before the House of Lords. The Government, however, have submitted that the applicant should have taken up the offer of education at the PRU and then applied for permission to judicially review, on human rights grounds, the adequacy of the alternative education provided. Instead, the applicant brought a free-standing human rights claim against the school, in the course of which he submitted that the alternative education was inadequate. In substance, therefore, this issue was fully litigated before the domestic courts, which held that the alternative education was adequate and that there had been no violation of the applicant's Convention rights.",
"35. The Court therefore rejects the Government's submission and finds that in relation to the complaints concerning the period of exclusion between 6 June 2001 and 2 0 January 2002, the applicant has exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention.",
"Merits",
"The parties'submissions",
"( a ) The applicant",
"36. The applicant submitted that the House of Lords had interpreted Article 2 of Protocol No.1 too narrowly in holding that there would only be a violation where there was a “systemic failure of the education system”. Instead, he contended that a failure by a public authority to deliver to an individual the education which it was his right to receive under the domestic law was also capable of violating Article 2 of Protocol No. 1. This would be the case whether there was a total failure to deliver education, as happened to the applicant between 8 May 2001 and 20 January 2002, or a partial failure where only a wholly inadequate education was available, as was the case for the applicant between 8 March 2001 and 8 May 2001.",
"37. The applicant submitted that the Court's jurisprudence indicated that the right to education consisted of three separate rights: a right of access to existing educational establishments; a right to an “effective” education; and a right of official recognition of studies successfully completed ( Case “relating to certain aspects of the laws on the use of languages in education in Belgium”, judgment of 23 July 1968, Series A no. 6 ). In the Belgian Linguistics Case the Court observed that the aim of Article 2 of Protocol No. 1 was to guarantee to individuals the right to avail themselves of the means of instruction provided by the State at a given time. Consequently, the content of the right to education secured by Article 2 of Protocol No. 1 was not fixed by the Article itself; instead, it was prescribed by the provisions of the domestic law of education in each of the Contracting States, subject to the qualification that the domestic law in question must not itself injure the substance of the Convention right.",
"38. The applicant submitted that in the United Kingdom, the national curriculum formed the “means of instruction” which was the substance of how the right to education was delivered in England at the relevant time ( Belgian Linguistics case, cited above, p. 18, § 3 ). In the United Kingdom, schools had a duty under sections 351(4) and 352 of the Education Act 1996 to provide education in accordance with the national curriculum to those whose names were on their rolls, while parents had a duty to ensure that their children of compulsory school age attended the schools at which they were registered. A school at which a child was registered could only refuse the child entry in very limited circumstances, which included where the child had been excluded on disciplinary grounds under section 64 of the 1998 Act. Under section 64 of the 1998 Act it was the Head Teacher who alone had the power to exclude pupils and they could only do so either for a fixed period not exceeding forty-five days in any one school year or permanently. Under section 19(1) of the 1996 Act LEAs had a duty to make arrangements for the provision of suitable education at school or otherwise for children of compulsory school age who had been excluded from school. According to section 19(6) of the 199 6 Act, “suitable education” meant education suitable to the child's age, ability and aptitude.",
"39. The applicant submitted that the exclusions by the school were, from 6 June 2001 at the very latest, totally unlawful acts. The judge at first instance found that this was the case and this finding was not overturned by any of the appeal courts. The applicant accepted that not every unlawful exclusion would be in breach of Article 2 of Protocol No. 1. In particular, he accepted that where a child was unlawfully excluded from school, but was immediately provided with education of the same or a higher standard, there would be no violation of Article 2 of Protocol No. 1. Nevertheless, he submitted that in the present case, to the extent that he was prevented from gaining access to the school at which he was enrolled and which he was entitled under domestic law to attend, he was denied an education in violation of Article 2 of Protocol No. 1 to the Convention.",
"40. The applicant further submitted that if the right to education was to have any real meaning, then it could not be right that any offer of alternative education could be regarded as “ healing ” the breach. Before being capable of “healing” a breach of Article 2 of Protocol No. 1, any alternative educational provision on offer would have to be education of the same type, neither inferior nor part-time, and the pupil should not suffer any disadvantage as a result of having to rely on it.",
"41. Although the applicant disputed that an offer of education at the PRU was made at the beginning of July 2001, he submitted that even if such an offer were made, the alternative education on offer was not capable of healing the breach of Article 2 of Protocol No.1. First, by the date of the alleged offer of alternative education in July 2001, the police had concluded their enquiries, dropped the charges and the fixed-term exclusion period had expired. Consequently, the applicant was entitled to be re-integrated into school and had a right to expect that this would occur. Secondly, by the date of the alleged offer, the applicant had been told by the Head Teacher that he would be re-instated. He was therefore under no obligation to accept alternative, inferior education. Thirdly, the offer of education from the PRU was only an offer of part-time education, for a period of anywhere between five and fifteen hours a week, and it would only offer a limited range of subjects (maths, English and some science). Fourthly, the alleged offer of education from the PRU was for three weeks only; no further offer of education was made. Moreover, the school did not offer the applicant any form of education after 8 May 2001, even though he remained on the school roll until the middle of October 2001.",
"42. Finally, the applicant submitted that the alternative education offered to him was not “suitable” within the meaning of section 7 of the 1996 Act as it did not cover the entire national curriculum at the date of the breach or, from September 2001 onwards, the full range of GCSE subjects that he had chosen.",
"43. The applicant accepted that the breach of his rights under Article 2 of Protocol No. 1 came to an end when he started at the Leon School on 20 January 2002.",
"(b) The Government",
"44. The Government accepted that Article 2 of Protocol No. 1 was applicable to the facts of the case as the applicant was, at the relevant time, a child of compulsory school age and thus prima facie had a right to an education.",
"45. The Government submitted that the starting point for considering whether there had been a violation of Article 2 of Protocol No. 1 was not whether there had been a breach of domestic law: there was no support for such an approach either in the Court's case- law or as a matter of first principle. Instead, the protection of the Convention, being practical and not theoretical, should be concerned with what education was in fact available to the child and not with whether or not the exclusion followed a particular procedure prescribed by the domestic law of the Contracting State. In particular, the key question to be asked was whether the authorities had acted so as to deny a pupil effective access to such educational facilities as the State provided for such pupils.",
"46. The Government further submitted that while the relevance of domestic law had never been directly answered by the Court, the existing case- law was not supportive of the applicant's case. On the contrary, it was well- established that the Convention laid down no specific obligations concerning the extent of the means and the manner of their organisation ( Belgian Linguistics Case, cited above, p. 18, § 3 ). The Government therefore argued that the applicant could not establish a violation of Article 2 of Protocol No. 1 by reference to the breaches of domestic law concerning his exclusion from school.",
"47. Moreover, the Government argued that the applicant's assertion that they were obliged to provide him with an education while he was excluded from the school which was the same as that which he would have received had he not been excluded was inconsistent with principle and with the Court's case- law. This was because the right to education did not require Contracting States to establish education of any particular type or at any particular level. Given that the content of the curriculum was not a matter prescribed by the Convention, and that the Convention laid down no specific obligations concerning the means of instruction (or the number of hours of education to be provided), and given that the Convention did not prevent children from being excluded in relation to disciplinary matters, it was impossible to conclude that a child who had been excluded was entitled, by reason of the Convention right, to the same education that he would have received had he not been excluded.",
"48. While the Government accepted that for the right to education to be meaningful, the quality of education would have to reach a minimum standard, they argued that it did not follow that any such minimum standard was to be set by reference to the level of education provided at the school attended by the applicant immediately prior to exclusion, or by reference to the particular content of the national curriculum at any given time, or by the number of hours that the State happened to define as “full-time” education. On the contrary, the right under Article 2 of Protocol No. 1 was no more extensive than an obligation to provide an education suitable to a child's age, ability and aptitude. The question of whether there had been a violation depended on what education was available to the applicant overall, and not on what education was provided by any particular institution.",
"49. For the reasons given by the House of Lords, the Government submitted that the “very essence” of the applicant's right to education had not been impaired. In particular, they submitted that there was no period of time in which the Local Education Authority would not have provided suitable education for the applicant, and he could not blame the LEA for not repeating offers of education which he had previously refused.",
"50. The Government submitted that the applicant's arguments were made even weaker by the fact that he never availed himself of the education which was offered during the period of exclusion. Still less did he ever complain at the time, whether in legal proceedings or otherwise, that such an education would have been inadequate to satisfy his right to an education under Article 2 of Protocol No. 1.",
"The Court's assessment",
"(a) General principles",
"51. Article 2 of Protocol No. 1 guarantees, inter alia, a right of access to educational institutions existing at a given time (see Belgian Linguistics Case, cited above, p. 28, § 4 and Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, pp. 25-26, § 52). Nevertheless, such access constitutes only a part of the right to education. For the \"right to education\" to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed ( Belgian Linguistics Case, cited above, p. 2 8, § 4).",
"52. The Court recognises that in spite of its importance the right to education is not absolute, but may be subject to limitations. Provided that there is no injury to the substance of the right, these limitations are permitted by implication since the right of access “by its very nature calls for regulation by the State” ( Belgian Linguistics Case, cited above, p. 28, § 5 and Campbell and Cosans v. the United Kingdom, 25 February 1982, § 41, Series A no. 48).",
"53. Admittedly, the regulation of educational institutions may vary in time and in place, inter alia, according to the needs and resources of the community and the distinctive features of different levels of education. Consequently, the Contracting States enjoy a certain margin of appreciation in this sphere, although the final decision as to the observance of the Convention's requirements rests with the Court. In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim. However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of “legitimate aims” under Article 2 of Protocol No. 1 (see, mutatis mutandis, Podkolzina v. Latvia, no. 46726/99, § 36, ECHR 2002-II). Furthermore, a limitation will only be compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005 ‑ XI ).",
"54. Article 2 of Protocol No. 1 does not necessarily entail a right of access to a particular educational institution ( Simpson v the United Kingdom, Application No. 14688/89, 24 February 1998). Moreover, the right to education does not in principle exclude recourse to disciplinary measures such as suspension or expulsion from an educational institution in order to ensure compliance with its internal rules. The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils (see, among other authorities, Campbell and Cosans v. the United Kingdom, cited above, p. 14, § 33; see also, with respect to the expulsion of a cadet from a military academy, Yanasik, cited above, and the expulsion of a student for fraud, Sulak v. Turkey, no. 24515/94, Commission decision of 17 January 1996, DR 84-A, p. 98 ).",
"(b) Application in the present case",
"55. In the United Kingdom, all maintained schools have a duty to provide education in accordance with the national curriculum to every child of compulsory school age on their register. Article 2 of Protocol No. 1 therefore requires that the United Kingdom guarantee to every child of compulsory school age within its jurisdiction, like the applicant in the present case, access to an educational institution or facility which will provide an education in accordance with the national curriculum.",
"56. Although the applicant was not technically excluded for disciplinary reasons or to ensure compliance with the school's internal rules, the Court finds that the exclusion was in pursuit of a legitimate aim. The Court can readily accept that over and above the need to ensure observance with a school's internal rules, a measure resulting in the suspension of a pupil for a temporary period for reasons relating to an imperative not immediately connected with such rules – such as a criminal investigation into an incident at the school – can be considered justified.",
"57. In the present case the Court also finds that the applicant's exclusion from school was foreseeable. The Head Teacher's power to exclude pupils is contained in sections 64 – 68 of the 1998 Act. The applicant's initial exclusion was therefore both lawful and foreseeable, even though there were some procedural irregularities. Although the applicant's exclusion subsequently exceeded the maximum period prescribed by the legislation, the Court finds that the continued exclusion was also foreseeable. At the time of the initial exclusion, the applicant was told that he could not return to the school until the police investigation was completed. The reason for this was clear. Other pupils, and indeed members of staff, were potential witnesses and it would have been inappropriate for the applicant to return to the school while the police investigation was ongoing. Consequently, he could have had no realistic expectation of returning to school on 6 June 200 1.",
"58. In determining whether or not an exclusion resulted in a denial of the right to education, the Court will have to consider whether a fair balance was struck between the exclusion and the justification given for that measure. It will therefore have regard to factors such as the procedural safeguards in place to challenge the exclusion and to avoid arbitrariness; the duration of the exclusion; the extent of the co-operation shown by the pupil or his parents with respect to attempts to re-integrate him; the efforts of the school authorities to minimise the effects of exclusion and, in particular, the adequacy of alternative education provided by the school during the period of exclusion; and the extent to which the rights of any third parties were engaged.",
"59. In the present case, the Court finds that the applicant's exclusion did not amount to a denial of the right to education and was not disproportionate to the legitimate aim pursued. In particular, the Court observes that the applicant was only excluded until the termination of the criminal investigation. Once the Head Teacher received written confirmation of the cessation of the criminal proceedings, she invited the applicant's parents to a meeting to facilitate his re-integration. Had the applicant's parents attended that meeting, it is likely that he would have been re-integrated. In this regard, the Court recalls that one of the applicant's co-accused was re-integrated into the school after attending this meeting. However, not only did the applicant and his parents not attend the meeting, but they made no further effort to contact the school until mid-October. By this stage, the applicant's name had been removed from the roll and his place at the school had been allocated to another pupil. It is therefore clear that the exclusion was for the minimum period necessary, and the fact that the applicant was not reintegrated into the school following the cessation of the criminal investigation was his fault or that of his parents and not that of the school.",
"60. Moreover, the Court recalls that the applicant was offered alternative education during the period of exclusion, although he did not choose to avail himself of this offer. While the alternative education did not cover the full national curriculum, the Court accepts that it was adequate in view of the fact that the period of exclusion was at all times considered temporary pending the outcome of the criminal investigation. Article 2 of Protocol No. 1 does not require schools in the United Kingdom to offer alternative education covering the full national curriculum to all pupils who have been temporarily excluded from school. However, the situation might well be different if a pupil of compulsory school age were to be permanently excluded from one school and were not able to subsequently secure full-time education in line with the national curriculum at another school.",
"61. Finally, while the Court is prepared to accept that the applicant had made a considerable investment in the school, both socially and academically, over the course of a number of years, it cannot ignore the fact that it was the applicant and his family's own intransigence which resulted in his name being removed from the roll. The Court has already noted that had the applicant's parents attended the meeting with the Head Teacher on 13 July 2001, it is likely that he would have been authorised to return to the school following the summer holidays.",
"62. The Court therefore finds that the applicant's exclusion was a proportionate measure and did not interfere with the substance of the right to education.",
"63. It is true that at times mistakes were made and procedures were not properly followed. In particular, the school failed to set a time-limit for the initial period of exclusion; the school failed to notify the applicant and his parents of their right of appeal to the Governors; the Governors failed to hold a hearing; and the period of exclusion was extended beyond the 45-day maximum. However, due consideration must be given to the extremely difficult position in which the school found itself on account of the continuing police investigation. After the expiry of the 45- day period, the legislation required it either to re-integrate the applicant or exclude him permanently. In practice, it could do neither. The applicant could not be re-integrated while the criminal investigation was ongoing, but it would have been equally inappropriate for the school to have excluded him permanently when it had not been established that he had committed any offence.",
"64. Accordingly, the Court finds that there has been no violation of Article 2 of Protocol No. 1 to the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"65. The applicant also complained that, as the majority of the House of Lords found, he had been unlawfully excluded from school in circumstances which wholly denied the protection afforded to him by domestic law. He had therefore been denied an adequate remedy for a breach of his rights under Article 2 of Protocol No.1. Consequently, he complained that there had been a violation of Article 13 of the Convention, which provides as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"66. The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.",
"67. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention."
] |
39 | Papageorgiou and Others v. Greece | 31 October 2019 | This case concerned compulsory religious education in Greek schools. The applicant parents complained that if they had wanted to have their daughters exempted from religious education, they would have had to declare that they were not Orthodox Christians. Furthermore, they complained that the school principal would have had to verify whether their declarations were true and that such declarations were then kept in the school archives. | The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 (right to education) to the Convention, interpreted in the light of Article 9 of the Convention. It stressed in particular that the authorities did not have the right to oblige individuals to reveal their beliefs. However, the system in Greece for exempting children from religious education classes required parents to submit a solemn declaration saying that their children were not Orthodox Christians. That requirement placed an undue burden on parents to disclose information from which it could be inferred that they and their children held, or did not hold, a specific religious belief. Moreover, such a system could even deter parents from making an exemption request, especially in a case such as that of the applicants, who lived on small islands where the great majority of the population owed allegiance to a particular religion and the risk of stigmatisation was much higher. Perovy v. Russia | Freedom of religion | Children’s education and parents’ religious convictions | [
"THE CIRCUMSTANCES OF THE CASE",
"6. The first two applicants in application no. 4762/18 are the parents of the third applicant, a school student who at the time of the application (during the school year 2017/18) was in the third and final grade of the General High School on the small island of Milos. The first applicant in application no. 6140/18 is the mother of the second applicant, a school student who at the time of the application was in the fourth grade of the only primary school on the small island of Sifnos.",
"7. The first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 never submitted, on behalf of their respective children, any application for exemption, either for the school year 2017/18 or for any of the previous school years, from the religious education course to be taught at each grade. Furthermore, they never took any legal action, by filing an application for annulment with the Supreme Administrative Court, against the circular of the Ministry of Education, Research and Religious Affairs dated 23 January 2015, which sets out the procedure for exemption from the religious education course.",
"8. However, in relation to two further decisions of the Minister of Education, Research and Religious Affairs, entitled “General and vocational high school religious education programme”, dated 13 June 2017, and “Primary and middle school religious education programme”, dated 16 June 2017, the applicants in both applications filed an application with the Supreme Administrative Court for annulment on 12 July 2017 – about two months before the start of the school year 2017/18 and during the courts’ summer recess between 1 July and 15 September. They challenged these decisions on the grounds that they did not provide for an objective, critical and pluralist religious education course that would not need the exemption procedure since it would involve all students, not because of a legal obligation, but because it would not harm their religious beliefs.",
"9. In their applications, the applicants also extensively argued that the procedure for exemption from the religious education course, as established by the above-mentioned circular, was contrary to Articles 8, 9 and 14 of the Convention.",
"10. On 12 and 24 July 2017 the applicants asked to have their cases examined by the Holidays Section under the urgent procedure, in accordance with Article 11 of Presidential Decree no. 18/1986, before the start of the new school year 2017/18 on 11 September 2017. However, the Supreme Administrative Court dismissed the requests for lack of importance.",
"11. The application for annulment was scheduled to be heard before the Third Section on 12 October 2017. The hearing was adjourned several times and rescheduled to take place on 9 November 2017, 14 December 2017, 8 February 2018, 22 March 2018, 19 April 2018, 4 May 2018, 1 June 2018 and 21 September 2018.",
"12. The Government submitted that the Third Section had adjourned the hearing because it had anticipated the issuance of judgments by the Plenary on two applications for the annulment of two ministerial decisions regarding the primary, middle and high school religious education programme which had become effective as from the school year 2016/17. The applicants contended that in the decisions postponing the hearing, the Third Section had not mentioned the reason alleged by the Government and could not have done so since the other cases had involved other parties and concerned the curriculum for the school year 2016/17.",
"13. The Supreme Administrative Court, sitting in plenary, published judgments no. 660/2018 (concerning the primary and middle school religious education programme for the school year 2016/17) and no. 926/2018 (concerning the high school religious education programme for the school year 2016/17) in the above-mentioned cases on 20 March 2018, following an appeal led by the Greek Orthodox metropolitan bishop of Pireus, who had challenged the implementation of the reform of religious education classes proposed in the programme. The Plenary held that the ministerial decisions were contrary to Article 4 § 1, Article 13 § 1 and Article 16 § 2 of the Constitution, Article 2 of Protocol No. 1 to the Convention, and Article 14 taken in conjunction with Article 9 of the Convention, as they deprived students abiding by the Orthodox Christian dogma of the right to be exclusively taught the dogmas, moral values and traditions of the Eastern Orthodox Church.",
"14. Following publication of the above-mentioned judgments, the applicants’ application for annulment was struck off the list of the Third Section of the Supreme Administrative Court and brought for a hearing before its Grand Chamber on 4 May 2018. The application was subsequently adjourned anew and scheduled to be heard on 21 September 2018 before the Plenary due to its importance, so that it could be heard jointly with another two applications for annulment lodged by other individuals against the same ministerial decisions as those challenged by the applicants. The other applications, brought by parents of students, a theology teacher, a diocese, a metropolitan bishop and an association, requested the annulment of the same ministerial decisions and syllabuses, but on grounds that were diametrically opposed to those relied on by the applicants. In these applications, the applicants, identifying their religious affiliation as Orthodox Christian, complained, inter alia, that the disputed new religious education programme for the school year 2017/18 sought to “transform the course from an Orthodox confessional one into a ‘religiology’ course ( θρησκειολογικό )”, in breach of Articles 4 and 13 of the Constitution and the applicable relevant legislation.",
"15. The Church of Greece intervened before the Supreme Administrative Court. In their intervention, the Church of Greece stated that their representatives had visited the official State committee six times during the drafting of the new religious education course. They also stated that they wanted the course to be of a confessional nature, as ruled by the Supreme Administrative Court in its judgment no. 660/2018.",
"RELEVANT DOMESTIC LAW AND PRACTICEThe Constitution",
"The Constitution",
"The Constitution",
"16. The relevant Articles of the Constitution read as follows:",
"Article 3 § 1",
"“The dominant religion in Greece is that of the Eastern Orthodox Church ....”",
"Article 4 § 1",
"“All Greeks are equal before the law.”",
"Article 13 § 1",
"“Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.",
"...”",
"Article 16 § 2",
"“Education constitutes a basic mission for the State and shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious conscience and at their formation as free and responsible citizens.”",
"Other legislative texts",
"17. The current Law on Education (Law no. 1566/1985 – “the Education Act”) states that the course entitled “Orthodox Christian Instruction” is mandatory for all schoolchildren throughout primary and secondary education and includes the objective that students should be helped:",
"“[to] develop into free, responsible, democratic citizens ... in whom is instilled faith in their homeland and the genuine elements of Orthodox Christian tradition. Freedom of their religious conscience is inviolable.”",
"18. Section 22 of Law no. 344/1976 on civil status reads as follows:",
"“1. A birth certificate ... shall contain:",
"...",
"b. the place, time, day, month and year of birth.",
"c. the sex of the infant and his or her birth order.",
"...",
"e. the name, surname, nationality, religion, occupation, residence and registration details in the parents’ register ...”",
"19. Parents must provide a copy of their child’s birth certificate to the school. “Religion” as a subject is compulsory in primary, middle and high school, as well as in certificates of studies, under the relevant ministerial decisions.",
"20. The relevant sections of Law no. 1599/1986 on relations between the State and its citizens provide as follows:",
"Section 8 Solemn Declaration ( Υπεύθυνη δήλωση )",
"“1. Facts or elements not evidenced by an identity card or the corresponding documents referred to in section 6 may be brought before any public authority or department with a solemn declaration ...",
"...",
"4. Public sector services which are subject to a solemn declaration can check their accuracy by verifying them against the records of other services.”",
"Section 22(6) False Solemn Declaration",
"“Any person knowingly declaring false facts or denying or concealing the truth with a written statement under section 8 shall be punished by imprisonment of at least three months ...”",
"21. Article 37 of the Code of Criminal Procedure reads as follows:",
"“1. Investigating officials shall promptly inform the competent public prosecutor of any information that they have received in any way whatsoever of an offence [subject to public prosecution].",
"2. Other civil servants, as well those to whom the exercise of a public service has been assigned temporarily, are under the same obligation for the offences referred to in paragraph 1 if they have been informed of them in the exercise of their duties.”",
"22. Section 105 of the Introductory Law to the Civil Code reads as follows:",
"“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”",
"“New School” Programme",
"23. The “New School” programme was introduced in 2011 by the Minister of Education and Religious Affairs and brought about a series of reforms to the curriculum. In particular, in relation to religion, it sought to introduce a more open and pluralistic approach to its teaching, to reflect the increased religious diversity in Greece following mass immigration into the country. Due to political and social tension over the potential change to religious education classes, the “New School” programme was not formally implemented until the 2017/18 school year. In religious education, the programme included studying the Christian traditions of Europe as well as Judaism, Islam, Hinduism, Buddhism, Taoism and Confucianism, with a special focus on Judaism and Islam.",
"24. The sole Article of ministerial decision no. 99058 entitled “General and vocational high school religious education programme” sets out the objectives, teaching hours and methods of teaching of the religious education course as follows:",
"“1. General objectives of high school religious education",
"The design of the new high school religious education programme takes into account:",
"- The general and specific objectives of education, in line with the existing legal framework, which is based on the Greek Constitution and the basic laws on education. ...",
"- The scientific recommendations of modern religious teaching, combined with new theories of learning and teaching methodology.",
"- The pedagogical characteristics of teenage students ...",
"- ...",
"- The educational orientation and contents of the new primary and middle school religious education programme.",
"- The prevailing local religious tradition as a fundamental pillar of students’ religious literacy and its wider religious and cultural framework.",
"- The complexity of the contemporary social and cultural fabric, as formed at local, European and global level, and the specific learning and educational needs arising therefrom.",
"Therefore, the objectives of high school religious education are:",
"(a) to develop personal identity, with inputs from religiousness and its critical understanding, whether one is religiously affiliated or not. The perception of self-image and the role of the self in relation to others are important in adolescence and determine adulthood. Personal identity and the emergence of personality depend on “religious conscience”, which the school nurtures freely mainly through religious education. This brings into play the moral development and behaviour of the teenager, since religious education involves an acquaintance with the diverse and complex phenomenon of religion and discusses the moral and existential questions of teenage students ...",
"(b) to foster humanitarian and Hellenic education ...",
"(c) religious literacy ... Knowledge of the framework that generates and shapes the concepts, as well as of their cultural content, is the essence of religious literacy, which is part of multiculturalism in education ...",
"(d) critical religiousness, in the sense of development of holistic intelligence in the education process, in which mind and heart participate and which shapes humans with a “living desire” for justice and democracy. Since man is by nature a being that believes, religious education enables him to “believe well”.",
"(e) acquaintance and communication with the “other”. The student becomes familiar with the multicultural society he or she lives in, becomes aware of its religious elements, as well as the multiplicity of his/her personal identity and its developmental dynamics in its collective and social manifestations ...",
"(f) socialisation, not as passive adoption of the social system but as process of individualisation based on the relationship between personality development and social inclusion ...",
"(g) developing a learning community ... Religious education, through the pedagogical and teaching method as well as its theological content, has great potential to radically promote the creation and development of a community, which, as a concept, is related to the faith and tradition of the country ...”",
"25. The sole Article of ministerial decision no. 101470 entitled “Primary and middle school religious education programme” sets out the objectives, teaching hours and methods of teaching of the religious education course as follows:",
"“...",
"In particular, it is recognised that the religious [education] course needs to:",
"- provide knowledge and understanding of religious beliefs and experiences;",
"- gear students’ interest towards the variety of religious approaches and moral beliefs inherent in religious experiences; and",
"- encourage students to become sensitive to religion and religious aspects of life.",
"This approach, despite doing away with obsolete practices of confessional exceptionalism, does not give the religious education course a phenomenological cognitive orientation, or make it a formal religiological subject that does not meet the pedagogical characteristics, deeper questions and real interests of students ...",
"Ultimately, this view of the religious education course emphatically raises the question of religious literacy as a crucial aspect of religious education, which contributes to producing citizens with religious consciousness, open to dialogue and diversity. This religious literacy is based on the rules of pedagogical and scientific knowledge and aims at the critical development of students’ religious conscience through the knowledge, values and attitudes it provides about religions and faiths, applying an explorative, interpretative and interactive learning approach.",
"...",
"2. Organisation of the religious education course",
"The present proposal concerns a course that, while maintaining its traditional cognitive and pedagogical character, also opens up to the Christian traditions of Europe and other religions. By providing the orientations of this course, we are developing a programme that starts from, and focuses on, the country’s religious tradition, the tradition of the Orthodox Church, as embodied in the cultural monuments of the country. Every student, regardless of religious identity, needs to know the religion of their country of origin or domicile. This is the first and main orientation of the course. The second includes a basic acquaintance with the major Christian traditions in Europe and the world beyond Orthodoxy, such as Roman Catholicism and Protestantism with its main confessions. The third orientation includes elements from major religions beyond Christianity, especially those of most interest to Greek society, namely the monotheistic traditions of Judaism and Islam, as well as religions that occasionally present increased interest. Therefore, it is a broader, theologically documented course that examines in an explorative, critical and dialectical manner the contribution of each religious tradition to civilisation, aiming at promoting religious literacy and students’ awareness of, and speculation about, their own religious beliefs and how these are reflected in the dynamics of social relations. Certainly, it would not be possible for the Greek school not to have a strong focus on Orthodox theology and tradition, which through the religious education course is called on to go even beyond modernity, accepting pluralism and diversity, without however underrating, relativising or abandoning its self-consciousness ... In conclusion, the new programme promotes a religious education proposal that is pedagogically sensitive, has realistic learning objectives, and is flexible and multivalent, based on the applicable legislative framework and meeting modern social needs. It focuses on Orthodox tradition but differs from indoctrination, striking a fair balance between native tradition and otherness, while not turning religious education into a religiology course.",
"3. [The] general aims and orientations of the religious education course [are]:",
"1. to build a solid educational background in Christianity and Orthodoxy both as the cultural tradition of Greece and Europe and as a living source of inspiration, faith, morality and meaning ...",
"2. to provide students, regardless of religious affiliation, with satisfactory knowledge of the nature and the role of the phenomenon of religion, both as a whole and in its various manifestations ...",
"These general aims of the religious education course may be specified in the following educational orientations and objectives/priorities:",
"1. critically understanding the doctrinal, cultic, existential and cultural expressions of the Orthodox Church, other major Christian confessions, as well as other religions;",
"2. highlighting the universal values of both Christianity and the other religions of the world;",
"...",
"4. approaching religious faith in general and Christianity in particular through multiple criteria;",
"...",
"9. respecting everyone’s right to freedom of religion, quest [for religion] and religious self-determination;",
"10. recognising and respecting each student’s religious and cultural origins;",
"...”",
"26. Furthermore, two circulars of the Ministry of Education, Research and Religious Affairs, dated 9 and 20 October 2017 respectively, provided detailed teaching instructions concerning the religious education course in high schools and primary schools for the school year 2017/18.",
"Circular of 23 January 2015 on exemption from the religious education course",
"27. The circular of the same Ministry dated 23 January 2015 sets out the procedure for exemption from the religious education course as follows:",
"“The religious education course is compulsory for all students (Article 16 § 2 of the Constitution). [It] is taught in primary and middle schools in accordance with the official syllabuses, pursues the general objectives of education and is addressed to all students. However, non-Orthodox Christian students, [that is to say] students with different religious or doctrinal affiliation or non-religious students, who rely on grounds of religious conscience, may be exempted from attending this course.",
"Therefore, exemption from the religious education course is legally granted solely to protect freedom of religious conscience, as enshrined in the Constitution and described in the relevant laws and judgments of the Greek and international courts.",
"Because there have been abuses of the right to exemption from the religious education course on grounds not associated with freedom of religious conscience, the attention of school principals is drawn to the need to verify the documentation [in support of] the grounds relied on by those seeking exemption, cautioning them about the seriousness of the solemn declaration they have filed, before granting the legal exemption to the student concerned, always within the prescribed time-limits.",
"It is necessary for the teacher to countersign the solemn declaration, so that he or she knows which students will be attending the religious education course.",
"Students exempted from the religious education course shall have no right to remain in the classroom during the teaching of the course and may under no circumstances roam inside or outside the school premises or be unjustifiably absent; they shall instead engage in the tasks indicated in this circular.",
"Exemption from the religious education course shall be granted following submission of a solemn declaration under Law 1599/1986 by the student him or herself, if he or she is [over the age of majority], or by both his or her parents (if he or she is a minor), stating that the student is not an Orthodox Christian and therefore relies on grounds of religious conscience, without being required to disclose their religious affiliation, unless they wish to do so.”",
"28. In February 2015 the Atheist Union, relying on the judgment in the case of Alexandridis v. Greece (no. 19516/06, 21 February 2008), requested the Hellenic Data Protection Authority’s intervention as regards the above circular to protect the rights of parents who, for reasons of conscience, wished their children to be granted an exemption. In August 2015 the Hellenic Data Protection Authority stated that since no religious or non-religious justification had to be provided in the exemption form, the current procedure did not violate Law no. 2472/1997 on the protection of the personal information of students.",
"29. On 25 September 2015 the then Alternate Minister of Education announced her intention to simplify the exemption process, adding that parents should be allowed to simply ask for their children not to attend religious education classes, with no reference – either positive or negative – to their religion. Following the reaction of the Archbishop of Greece, however, the Alternate Minister revoked her position. The above exemption procedure was maintained in force by Article 25 § 3 of a decision of the Minister of Education, Research and Religious Affairs dated 23 January 2018.",
"30. According to information provided by the Government, this right of exemption was exercised by 2,467 high school students and 799 primary school students during the school year 2015/16, 4,703 high school students and 978 primary school students during the school year 2016/17 and 2,859 high school students and 876 primary school students during the school year 2017/18."
] | [
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"31. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.",
"ALLEGED VIOLATIONS OF ARTICLES 8 AND 9 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1, READ IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION",
"32. The first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 complained that they were obliged to submit a solemn declaration declaring that their daughters, the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18, were not Orthodox Christians, in order for the latter to be exempted from the religious education course. They also complained that such declarations had to be kept with the school records and that the school principal had to enquire as to whether their content was true. They alleged that the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18 had been victims of violations of Article 9 of the Convention taken in conjunction with Article 14. They also alleged that the requirement for them to solemnly declare that the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18 were not Orthodox Christians in order to have them exempted from the religious education course and the retention of these declarations in the school archives constituted an unacceptable interference with their private life, as protected under Article 8 of the Convention.",
"33. The applicants also complained that in exercising its functions in matters of education and teaching, the State had not ensured that the information included in the religious education programme for the school year 2017/18 would be spread (a) in an objective, critical and pluralistic manner, in conformity with the first sentence of Article 2 of Protocol No. 1 with respect to the third applicant in application no. 4762/18 and to the second applicant in application no. 6140/18, and (b) in conformity with their parents’ religious and philosophical convictions (second sentence of Article 2).",
"34. The above-mentioned Articles read as follows:",
"Article 8",
"“1. Everyone has the right to respect for his private life ....",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 9",
"\"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.\"",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion ....”",
"Article 2 of Protocol No. 1",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"Preliminary remarks and method followed",
"35. The Court emphasises that, by its very nature, the substantive content of Article 9 of the Convention may sometimes overlap with the content of other provisions of the Convention; in other words, one and the same complaint submitted to the Court can sometimes come under more than one Article. In such cases, the Court usually opts to assess the complaint solely under the Article which it considers most relevant in the light of the specific circumstances of the case; however, in so doing, it also bears the other Article(s) in mind and interprets the Article which it has opted to consider in the light of the latter.",
"36. The Court has chosen to consider cases solely under Article 2 of Protocol No. 1, for example as regards the administration of compulsory classes in religious culture and morals in State schools, and the restricted opportunities for administering such classes (see Mansur Yalçın and Others v. Turkey, no. 21163/11, 16 September 2014), or a refusal to exempt a State school pupil whose family was of the Alevi faith from mandatory lessons in religion and morals (see Hasan and Elyem Zengin v. Turkey, no. 1448/04, 9 October 2007), or again a refusal by educational authorities to grant children complete exemption from compulsory classes on Christianity (see Folgerø and Others v. Norway [GC], no. 15472/02, ECHR 2007).",
"37. In the field of education and teaching, Article 2 of Protocol No. 1 is basically a lex specialis in relation to Article 9 of the Convention. This applies at least where, as in the present case, the issue at stake is the obligation on the Contracting States – as set out in the second sentence of this Article – to respect, in the exercise of any functions which they assume in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, § 90, 10 January 2017, and Lautsi and Others v. Italy [GC], no. 30814/06, § 59, ECHR 2011).",
"38. The complaints in question in the present case should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1.",
"39. Nevertheless, that provision should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention (see, for example, Folgerø, cited above, § 84), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality”. When read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe ( Lautsi and Others v. Italy [GC], no. 30814/06, § 78, ECHR 2011).",
"AdmissibilityNon-exhaustion of domestic remedies",
"Non-exhaustion of domestic remedies",
"Non-exhaustion of domestic remedies",
"(a) Arguments of the parties",
"40. The Government alleged that the applicants had neither used nor exhausted domestic remedies.",
"Firstly, they emphasised that the application for annulment of the two decisions of the Minister of Education, Research and Religious Affairs entitled “General and vocational high school religious education programme” and “Primary and middle school religious education programme”, filed by the applicants with the Supreme Administrative Court, was still pending.",
"Secondly, they maintained that the applicants had failed to file: (i) an application to suspend enforcement of the above-mentioned ministerial decisions and for an interim injunction; (ii) an application for annulment of the circular of the Minister of Education dated 23 January 2015 regarding the procedure for exemption from the religious education course; (iii) an application for exemption on behalf of the third applicant in application no. 4762/18 and the second applicant in application no. 6140/18, which would result in the school principals actually verifying their declaration that the children were not Orthodox Christian; and (iv) an application for annulment of any rejection of such an application for exemption.",
"41. Lastly, the Government submitted that although the third applicant in application no. 4762/18 had known that her application, even if the Court were to find a violation of her human rights, could only lead to an award of just satisfaction for non-pecuniary damage, she had filed the application without giving the domestic courts the opportunity to decide such a claim, by bringing an action for damages under section 105 of the Introductory Law to the Civil Code.",
"42. The applicants submitted that the applications for annulment had been the only remedy available against the ministerial decisions in question and that the proceedings before the sole responsible State authority, the Supreme Administrative Court, had not constituted an effective remedy since the applications had not even led to a hearing before the start of the school year 2017/18. They also maintained that submitting an application to suspend enforcement and for an interim injunction was not part of the mandatory form of domestic remedies and there was no prior domestic case-law justifying such applications. They also argued that there had been no requirement, nor had it been feasible, to initially challenge the 2015 circular before challenging the 2017 ministerial decisions.",
"43. The applicants disputed the religious neutrality of the members of the Supreme Administrative Court. They maintained that it had not adjourned their case because another important case of the same type had already been pending before it. The previous case had concerned the curriculum for the year 2016/17. The real reason for adjourning the case had been to delay matters until the end of the school year 2017/18 and make the applicants lose their standing as the third applicant in application no. 4762/18 had been in the final grade of the public education system.",
"44. As regards an action for damages under the above-mentioned section 105, the third applicant in application no. 4762/18 maintained that she had chosen the most appropriate legal remedy – an application for annulment before the Supreme Administrative Court – which had not concealed a “self-serving” objective, as the only result would have been the annulment of the ministerial decisions and not an award of damages.",
"(b) The Court’s assessment",
"45. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after the exhaustion of those domestic remedies that relate to the breaches alleged and are also available and sufficient. The Court also reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, in particular, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 ‑ V; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 others, § 74, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, § 85, 9 July 2015). Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV, and Prencipe v. Monaco, no. 43376/06, § 93, 16 July 2009).",
"46. The Court further reiterates that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009; Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000; and Airey v. Ireland, 9 October 1979, § 23, Series A no. 32) Under the established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009, and Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, ECHR 2009).",
"47. In the present case the Court notes that on 12 July 2017 the applicants applied to the Supreme Administrative Court for annulment of the two ministerial decisions which had established the primary, middle and high school religious education programme for the school year 2017/18. On 12 and 24 July 2017 the applicants lodged requests for their case to be examined under the urgent procedure, before the start of the new school year on 11 September 2017. A hearing was initially scheduled for 12 October 2017 and was then adjourned and rescheduled for 9 November 2017, 14 December 2017 and again on six other dates in 2018. It cannot be denied that the application for annulment at the Supreme Administrative Court, coupled with a request for the case to be examined under the urgent procedure was an effective remedy to exhaust for the purposes of Article 35 § 1. However, in the circumstances, notably the successive adjournments of the examination of the case and taking into account the need for the applicants to have their case decided before the start of the new school year, the remedy lost much of its effectiveness. As a result, it cannot be reasonably claimed by the Government that the lodging of the applications with the Court on 5 and 8 January 2018 had rendered them premature, as more than three months had already passed since the start of the new school year.",
"48. As regards the Government’s argument that the applicants did not file an application to suspend enforcement or for an interim injunction, the Court does not consider this remedy effective: having regard to the Supreme Administrative Court’s stance on the applicants’ request to have the urgent procedure applied, the Court considers that the probability of having a course curriculum suspended because of a pending application for annulment were less than slim.",
"49. Furthermore, by filing an application with the Supreme Administrative Court, the applicants sought to obtain the annulment of the ministerial decisions in question and not compensation. Moreover, for section 105 to apply, the alleged damage had to have been caused by the unlawful acts of State organs. However, the Government did not specify which unlawful act was at stake in this situation. The Government have not given any examples of case-law in order to demonstrate that an action for damages could have restored the applicants’ rights under Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1. An action for damages under section 105 was therefore not an effective remedy in the present case.",
"50. Finally, as regards the failure of the applicants to use the exemption procedure and file a “recourse” in the event that their application for exemption was dismissed, the Court considers that this could be understood as an indication that the adult applicants and their children were people without religious beliefs or people adhering to a religion other than Orthodox Christian. Consequently, this aspect of the non-exhaustion argument raised by the Government is closely related to the substance of the case, and should be joined to the merits.",
"51. Accordingly, with the exception of the above-mentioned aspect of the non-exhaustion argument, the Court dismisses the Government’s objection based on the premature nature of the applications and the applicants’ failure to exhaust domestic remedies.",
"Loss of victim status",
"52. The Government asserted that at the time of the application the third applicant in application no. 4762/18 had been in the last months of the final grade of high school and would not be taught at school again, and that she had now completed her studies and was about to reach adulthood. On her reaching adulthood, the first and second applicants would have no right to complain of human rights violations in her name.",
"53. The applicant maintained that it was at least provocative for the Government to invoke inaction on the part of the State authorities throughout the year 2017 in order to claim that the applicants were no longer victims, as the applicants had made timely use of domestic remedies. Furthermore, the present application had been brought in January 2018, when the third applicant had still been a student and would have been for at least another six months or so.",
"54. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. Hence, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings before the Court (see Scordino v. Italy (no. 1) [GC], no.36813/97, § 179, ECHR 2006-V). In this regard, the applicant must be able to justify his or her status as a victim throughout the proceedings (see Burdov v. Russia, no. 59498/00, § 30, 7 May 2002, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 80, ECHR 2012). The issue of whether a person may still claim to be a victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his situation (ibid., § 82).",
"55. The Court notes that the applicants filed an application for annulment of the two impugned ministerial decisions dated 13 and 16 June 2017 before the judgment of the Supreme Administrative Court adopted on 2 July 2017, that is, approximately two months before the start of the school year 2017/18. On the same date and again on 24 July 2017 the applicants asked to have their case urgently heard by the Holidays Section so that they could be served with the decision prior to the start of the new school year, but the court dismissed their requests for lack of importance. As a result, the new school year started at the beginning of September 2017 with both applicant students being obliged to follow the religious education course during the whole school year. On 5 January 2018 the applicants lodged their application with the Court. On that date and during the whole school year 2018 the Supreme Administrative Court did not adjudicate the case and kept on adjourning the hearing until 21 September 2018, by which time the school year had already finished.",
"56. Having regard to the specific circumstances of the case, the Court considers that that the most appropriate and adequate redress in the present case would not have been the payment of compensation to the applicants, particularly as regards the third applicant in application no. 4762/18, who was in her last year at school, but a decision on the substance of the complaints raised in their application to the Supreme Administrative Court.",
"57. The Court therefore considers that all the applicants were victims on the date of the application and can still claim to be victims, because to date no judgment has yet been delivered in their cases.",
"58. Accordingly, the Government’s objection must be dismissed.",
"Conclusion",
"59. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"60. The applicants claimed in the first place that decisions no. 9902/2017 and no. 101470/2017 issued by the Minister of Education in the course of summer 2017 provided that the religious education course was of a confessional nature, promoting the “prevailing religion”. It appeared from the decisions that the purpose of the new programme was to develop a certain form of “religious personality”, develop believers of the Orthodox Christian dogma, enable students to “believe well” and not just provide them with information and knowledge. If the course was not of a catechetical and confessional nature, the State would have abolished the exemption procedure instituted by the circular of 23 January 2015, because there would have been no ground of conscientious objection. Maintaining such a procedure amounted to admitting that the course itself was an interference by the State with the formation of the religious beliefs of students. In order to ensure the mandatory nature of the course and compel students to attend the confessional religious education course, the State required those who had conscientious objections not only to express them, but also to declare explicitly and officially that they were not Orthodox Christians.",
"61. The applicants contended that if they had decided to make a solemn declaration in view of the exemption, they would have exposed themselves to criminal proceedings if the school principal had considered their content false. Moreover, submitting a solemn declaration to be held in the school records would have amounted to disclosing beliefs and personal sensitive data which did not fall within the ambit of the guarantees of either Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data) or Law no. 2472/1997 (on protection from processing of personal data).",
"(b) The Government",
"62. In the first place, the Government claimed that in the instant case, the first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 had never submitted an application for exemption, either with or without a declaration that their daughters were not Orthodox Christians, and therefore no such declaration had been processed by anyone or kept in the school records. Besides, the circular of 23 January 2015 did not recognise any “power” or “jurisdiction” of verification to school principals; it only “urged” them to verify the documentation in support of the grounds relied on by applicants, “cautioning them about the seriousness of the solemn declarations they ha[d] to file, before granting the legal exemption”. Furthermore, any processing and keeping of such declarations in the school records would be subject to the applicable data protection legislation.",
"63. Likewise, there was no question of “proselytism” or “indoctrination” through the new religious education programme, despite the allegations of the applicants and the third parties to the contrary, nor had any, even possible, “stigmatisation” of the applicants been proved; besides, the applicants lived on the Central Aegean islands which had remarkable cultural activity and high influxes of tourists, and where residents of various ethnic, cultural and religious backgrounds coexisted harmoniously.",
"64. Since the religious education course was not optional and it was the State’s mission under the Constitution to develop the religious conscience of students that were Orthodox Christians, exemption from the course was necessarily associated with a lack of religious affiliation.",
"65. A student was not required to disclose his or her religious convictions and to only make a negative declaration to the effect that he or she was not an Orthodox Christian. This declaration served the purpose of avoiding circumvention of the State’s constitutional mission because, when a student was not an Orthodox Christian, the State was not required to develop his or her religious conscience. Furthermore, precisely because it was impossible and unacceptable for State organs to verify the religious convictions of a student, the declaration was equivalent to confirmation that real grounds of religious conscience for exemption existed, so as to prevent the submission of false declarations that would undermine the fair and equal teaching of courses and conceal illegitimate purposes – in particular to reduce the courses in which a student had to be examined and assessed. Under the new, pluralistic programme, the possibility of exemption was maintained even though the religious education course was not confessional and not exclusively addressed to Orthodox Christians.",
"66. The Government claimed that the State provided the right to full exemption from the religious education course which, as its teaching had been established and conducted under the new programme, constituted no indoctrination or proselytism. The exemption procedure, through the submission of an application and a solemn declaration, served the purpose of transparency and preventing a mass submission of applications that could have led to full abolition of the course. Besides, the exemption procedure protected students against possible abuses of this right by exempted students, who would thus gain an advantage over the former in assessments or otherwise.",
"67. The Government also emphasised that the applicants had not actually sought to obtain an exemption from the religious education course because they had actually wanted to have a course drawn up and taught as per their beliefs. But the right to have a State draw up a religious education course as per parents’ wishes was not derived from any of the Articles of the Convention. The State should have been supported for having maintained the right of exemption while having at the same time introduced a new pluralistic religious education programme. It was also noteworthy that following the adoption of the new programme, applications for exemption had been submitted by Greek Orthodox parents stating, among other things, that the course itself and the way it was taught did not inspire towards the Orthodox faith and contained chapters which had absolutely no relation to that faith.",
"68. Finally, the Government contended that the implementation of the new programme as from the school year 2017/18 had been general and universal, in all primary and secondary schools. On the basis of information and a survey presented before the 2 nd Panhellenic Conference of Teachers of Theology in 2018, it was estimated that the new programme had been fully implemented in primary education, while in secondary education it had been implemented by 60 to 70% of schools. Between 5 and 10% had not implemented it at all, because the teachers had either not been trained or had not agreed with its orientations.",
"Third party interveners",
"(a) National Secular Society",
"69. The National Secular Society stated that the system for exemption from religious education classes operated by Greece appeared to be in conflict with key elements of the Court’s case-law. It depended on treating those of a particular faith as a cohesive group in defiance of the need to treat freedom of religion or belief primarily as an individual right that flowed from the Court’s case-law. It also imposed oppressive conditions on parents seeking to obtain an exemption from religious education classes for their children by obliging them to reveal their or their children’s religious beliefs and subjecting those beliefs to scrutiny by a third party (the school principal), and requiring records of those beliefs to be retained unnecessarily and indefinitely. These were features which the Court had repeatedly found to be in violation of Article 9 read in conjunction with Article 14.",
"70. The National Secular Society submitted that the policy of the Greek State seemed to have the effect of making the availability of protection of the rights of parents under Article 2 of Protocol No. 1 dependent on whether or not their children adhered to the Orthodox faith. If parents who saw themselves as Orthodox Christians but who dissented from certain teachings of the Orthodox Church wished to bring their children up in accordance with their own individual interpretation of Orthodox Christianity, they had the same right under Article 2 to ensure that those philosophical beliefs were not undermined by the education system as a person whose beliefs fully aligned with mainstream Orthodox Christian teaching or a person who was an atheist or member of another faith. Moreover, a policy requiring that parents were answerable for the religious and philosophical beliefs of children who could be of sufficient maturity to form their own views failed to show respect for matters of individual conscience.",
"(b) Greek Helsinki Monitor",
"71. The Greek Helsinki Monitor emphasised that soon after the Court’s judgment on religious oath taking in Greece in Alexandridis v. Greece (no. 19516/06, 21 February 2008), the Ministry of Education had issued two circulars, in July and August 2008, confirming and solidifying the year-long practice that exemption from religious education would be granted when requested by students or their parents for reasons of consciousness without any declaration of religious beliefs being requested. However, not only had the change introduced by the circular of 23 January 2015 been unnecessary, it had also led to a disturbance in the democratic functioning of the education system. This disturbance had been caused by the imposition of institutional discrimination and a violation of the Convention for those who had to declare their (non-) religious beliefs in order to enjoy another right, that of the exemption from religious education. Moreover, both the Court ( Folgerø and Others, cited above) and the UN Human Rights Committee (in its views on Leirvag v. Norway – Communication no. 1155/2003) had ruled that asking parents to provide reasons as to why they sought to exempt their children from religious education was contrary to the Convention and the International Covenant on Civil and Political Rights.",
"72. Referring to the above-mentioned Folgerø and Others judgment, the Greek Helsinki Monitor stated that a comparison between the Norwegian and Greek religious education curricula indicated that the Greek curriculum was much less objective, critical and pluralistic, and much more a form of indoctrination into the official State religion, as it admittedly had a “confessional” character. Whereas in Norway half of the items listed referred to Christianity alone, in Greece, according to an official report by the Church of Greece in June 2017, 82% of the items in primary religious education had a confessional character (of which only 10% had an inter-confessional character) and 18% had a non-confessional character. The respective percentages for middle religious education were 74% confessional (of which 20% were inter-confessional) against 26% non-confessional. Both in the legislation and the circulars, as well as in practice, there was a thorough teaching of Orthodox Christianity and usually a superficial teaching of other Christian and non-Christian religions or other beliefs. In that report, the Church of Greece expressed its satisfaction with the confessional character of religious education.",
"(c) ELIAMEP (Hellenic Foundation for European and Foreign Policy – Grassrootsmobilise Research Programme)",
"73. ELIAMEP emphasised that in the new religious education course Orthodoxy remained predominant in the teaching of religion in terms of the time and space allotted to it in the course, but also in that students did not only learn about Orthodoxy but were taught it as the faith of the nation. The fact that the course was exclusively taught by Orthodox theologians supported the latter notion. In primary school the course was taught by the one teacher in charge of the entire curriculum, but in secondary education (grades 7 to 12), the course was exclusively taught by Orthodox theologians graduating from one of the two Orthodox Faculties of Theology in Athens and Thessaloniki. Moreover, in many schools across Greece, the previous version of the religious education course was taught, wherein not only was Orthodoxy taught in a directly catechetical manner, but many minority faiths were presented in a derogatory way. Few theologians made use of the new books and chose, instead, not to implement the new programme; this was largely due to the fact it allowed a degree of flexibility as to the ways in which each theologian chose to implement the guidelines. A call for a return to the previous approach to the teaching of religious education had been supported in judgment no. 660/2018 of the Supreme Administrative Court.",
"74. Furthermore, ELIAMEP pointed out that the stringent requirements regarding exemption from religious education classes had a highly distressing effect on students, who often preferred to keep their religious affiliation hidden or lie about it rather than risk being exposed to the school authorities. Because of the catechetical nature of the course, parents of religious minority children often chose the right to exemption which was available to them, but in so doing were forced to weigh the benefits of their children not attending a course which indoctrinated their children in a different faith against the potential stigmatisation of their children in their being singled out for opting out of the course.",
"The Court’s assessment",
"(a) General principles",
"75. The first sentence of Article 2 of Protocol No. 1 provides that everyone has the right to education. The right set out in the second sentence of the Article is an adjunct of the right to education set out in the first sentence. Parents are primarily responsible for the education and teaching of their children; it is in the discharge of this duty that parents may require the State to respect their religious and philosophical convictions (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23). The second sentence of Article 2 of Protocol No. 1 aims at safeguarding the possibility of pluralism in education, a possibility which is essential for the preservation of the “democratic society” as conceived by the Convention. It implies that the State must take care that information included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions (see Folgerø and Others, § 84, and Lautsi and Others, § 62, both cited above).",
"76. The word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Lautsi and Others, cited above, § 61, and Campbell and Cosans v. United Kingdom, 25 February 1982, § 37, Series A no. 48). Nevertheless, the requirements of the notion of “respect” imply that the States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1, that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Lautsi and Others, cited above, § 61, and Bulski v. Poland (dec.), nos. 46254/99 and 31888/02, 30 November 2004).",
"77. In order to examine the disputed legislation under Article 2 of Protocol No. 1, interpreted as above, one must, while avoiding any evaluation of the legislation’s expediency, have regard to the material situation that it sought and still seeks to meet. Although, in the past, the Convention organs have not found education providing information on religions to be contrary to the Convention, they have carefully scrutinised whether students were obliged to take part in a form of religious worship or were exposed to any form of religious indoctrination. In the same context, the arrangements for exemption are also a factor to be taken into account (see Hasan and Elyem Zengin, cited above, § 53).",
"78. Such an interpretation of the second sentence of Article 2 of Protocol No. 1 is consistent with the first sentence of the same provision, with Articles 8 to 10 of the Convention and with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society. This is particularly true in that teaching is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its students as well as their personal independence (ibid., § 55).",
"79. The Court further draws attention to its fundamentally subsidiary role in the Convention protection system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in so doing enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII, and Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017).",
"80. Where the legislature enjoys a margin of appreciation, the latter in principle extends both to its decision to intervene in a given subject area and, once having intervened, to the detailed rules it lays down in order to ensure that the legislation is Convention compliant and achieves a balance between any competing public and private interests. However, the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure (see Lekić v. Slovenia [GC], no. 36480/07, § 109, 11 December 2018).",
"(b) Application of these principles",
"81. In the first place, the Court considers that the main issue raised in the present case is that of the obligation imposed on the parents to submit a solemn declaration declaring that their children were not Orthodox Christians, in order for the latter to be exempted from the religious education course. In the circumstances of the case, the content of religious education lessons as such is not directly connected to that of exemption from the course and the Court will not consider it separately.",
"82. The Court reiterates the Contracting Parties’ positive obligation under the second sentence of Article 2 of Protocol No. 1, which gives parents the right to demand from the State respect for their religious and philosophical convictions in the teaching of religion. Where a Contracting State includes religious instruction in the curriculum for study, it is then necessary, in so far as possible, to avoid a situation where pupils face a conflict between the religious education given by the school and the religious or philosophical convictions of their parents. In this connection, the Court notes that, with regard to religious instruction in Europe and in spite of the variety of teaching approaches, almost all of the member States offer at least one route by which pupils can opt out of religious education classes, by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or making attendance at religious studies classes entirely optional (see Hasan and Elyem Zengin, cited above, § 71).",
"83. The Court notes that, under Article 16 § 2 of the Constitution and the Education Act, the religious education course is mandatory for all students (see paragraphs 16-17 above). However, the circular of 23 January 2015 provides that non-Orthodox Christian students, that is to say students with different religious or doctrinal affiliation or non-religious students, who rely on grounds of religious conscience, may be exempted from attending the course. This exemption procedure was maintained in force by Article 25 § 3 of a decision of the Minister of Education dated 23 January 2018 (see paragraphs 29 and 31 above).",
"84. In the Court’s view, what matters in respect of Article 2 of Protocol No. 1 is to ascertain whether the conditions imposed by the circular of 23 January 2015 are likely to place an undue burden on parents and require them to disclose their religious or philosophical convictions in order to have their children exempted from the religious education course. In this regard, the Court reiterates that that it has always stressed that religious convictions are a matter of individual conscience (see, inter alia, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002 ‑ X).",
"85. It is clear that the above circular does not require religious justification to be provided in the exemption form. However, the Court notes that the parents are obliged to submit to the school principal a solemn declaration in writing, countersigned by the teacher, stating that their child is not an Orthodox Christian. The school principal has the responsibility to check the documentation in support of the grounds relied on by the parents and draw their attention to the seriousness of the solemn declaration they have filed.",
"86. Checking the seriousness of the solemn declaration implies that the school principal is to verify whether it contains false information, namely whether the birth certificate of the child which indicates the parents’ religion and which must be submitted to the school authorities (see paragraphs 18-19 above) corresponds to the solemn declaration. In addition, “religion” as a subject is compulsory in primary, middle and high school, as well as in certificates of studies, under the relevant ministerial decisions (see paragraph 19 above). Where there is a discrepancy, the school principal must alert the public prosecutor that a false solemn declaration may have been submitted, since it is a criminal offence under Article 22 § 6 of Law no. 1599/ 1986 and Article 37 of the Code of Criminal Procedure (see paragraphs 20-21 above).",
"87. The Court considers that the current system of exemption of children from the religious education course is capable of placing an undue burden on parents with a risk of exposure of sensitive aspects of their private life and that the potential for conflict is likely to deter them from making such a request, especially if they live in a small and religiously compact society, as is the case with the islands of Sifnos and Milos, where the risk of stigmatisation is much higher than in big cities. The applicant parents asserted that they were actually deterred from making such a request not only for fear of revealing that they were not Orthodox Christians in an environment in which the great majority of the population owe allegiance to one particular religion (see Grzelak v. Poland, no. 7710/02, § 95, 15 June 2010), but also because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs.",
"88. Although the first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 were under no obligation to disclose their religious convictions, requiring them to submit a solemn declaration amounted to forcing them to adopt behaviour from which it might be inferred that they themselves and their children hold – or do not hold – any specific religious beliefs (see, mutatis mutandis, Alexandridis, cited above, § 38, and Dimitras and Others v. Greece, nos.42837/06, 3237/07, 3269/07, 35793/07 et 6099/08, § 78, 3 June 2010).",
"89. In the above-mentioned cases the Court stated that the freedom to manifest one’s beliefs also contained a negative aspect, namely the individual’s right not to manifest his or her religion or religious beliefs and not to be obliged to act in such a way as to enable conclusions to be drawn as to whether he or she held – or did not hold – such beliefs. The State authorities did not have the right to intervene in the sphere of individual conscience and to ascertain individuals’ religious beliefs or oblige them to reveal their beliefs concerning spiritual matters.",
"Conclusion",
"90. Having regard to the foregoing, the Court dismisses the Government’s objection of non-exhaustion as regards the applicants’ omission to use the exemption procedure and concludes that there has been a breach of their rights under the second sentence of Article 2 of Protocol No. 1, as interpreted in the light of Article 9 of the Convention.",
"APPLICATION OF ARTICLE 41OF THE CONVENTION",
"91. Article 41of the Convention provides:",
"Article 41",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"92. The applicants in both applications each claimed 8,000 euros (EUR) in respect of non-pecuniary damage.",
"93. The Government contended that the claim had been made without setting out any specific arguments or indicating the damage personally suffered by the applicants as a consequence of the matters complained of. The Government considered that the finding of a violation would constitute sufficient just satisfaction under Article 41.",
"94. The Court considers that the applicants sustained, owing to the violation as found, non-pecuniary damage which cannot be redressed by the mere finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards jointly to the three applicants in application no. 4762/18 the sum of EUR 8,000 and jointly to the two applicants in application no. 6140/18 the sum of EUR 8,000 under this head.",
"Costs and expenses",
"95. The applicants in application no. 4762/18 also claimed EUR 6,566.52 for the costs and expenses incurred before the Supreme Administrative Court. Neither these applicants nor those in application no. 6140/18 claimed any amount for the costs and expenses incurred before the Court.",
"96. The Government contended that the applicants should not have claimed an amount for a procedure which was pending before the Supreme Administrative Court but which had actually followed in time the procedure before the Court. Recourse to the Court might not have been necessary following the – not yet issued – judgment of the Supreme Administrative Court.",
"97. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,566.52 concerning costs incurred by the applicant in application no. 4762/18 before the Supreme Administrative Court."
] |
40 | Ignaccolo-Zenide v. Romania | 25 January 2000 | Following the applicant’s divorce a French court ruled, in a judgment that had become final, that the two children of the marriage were to live with her. In 1990, during the summer holidays, the children went to stay with her former husband, who held dual French and Romanian nationality and lived in the United States. However, at the end of the holidays, he refused to return them to the applicant. After changing addresses several times in order to elude the American authorities, to whom the case had been referred under the Hague Convention of 25 October 1980 on international child abduction, the applicant’s former husband managed to flee to Romania in March 1994. In December 1994 the Bucharest Court of First Instance issued an injunction requiring the children to be returned to the applicant. However, her efforts to have the injunction enforced proved unsuccessful. Since 1990 the applicant had seen her children only once, at a meeting organised by the Romanian authorities on 29 January 1997. The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. | The European Court of Human Rights held that there had been a violation of Article 8 of the European Convention on Human Rights, finding that the Romanian authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of her children and had thereby breached her right to respect for her family life. The Court observed in particular that the authorities had not taken the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention of 25 October 1980. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. On 7 May 1980 the applicant married D.Z., a Romanian national. The couple had two children, Maud and Adèle, who were born in 1981 and 1984 respectively.",
"10. In a judgment of 20 December 1989 the Bar-le-Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce, whereby parental responsibility was given to the father and the applicant was granted access and staying access.",
"11. During 1990 D.Z. moved to the United States with his daughters.",
"12. On 3 September 1990 the applicant lodged a complaint against him for failure to hand over the children to her. She asserted that at the beginning of September D.Z. had breached her right of access as, without informing her, he had kept them in the United States beyond the midway point of the school holidays.",
"13. On 4 September 1990 the applicant brought urgent proceedings against D.Z. in the Metz tribunal de grande instance, applying for parental responsibility and a residence order in her favour, together with an order prohibiting D.Z. from removing the children from France without her consent.",
"14. The matrimonial causes judge of the Metz tribunal de grande instance dismissed her application in an interim order dated 11 September 1990.",
"15. The applicant appealed against that order to the Metz Court of Appeal, which set it aside in a judgment of 28 May 1991. The Court of Appeal gave parental responsibility to both parents, ordered that the children should live with their mother and granted D.Z. access and staying access.",
"16. D.Z. did not comply with the judgment and did not hand the children over to their mother.",
"17. On an application by D.Z., who had been living in Texas for over a year, the Harris County Court of the State of Texas set aside the judgment of the Metz Court of Appeal in a judgment of 30 September 1991 and awarded custody of the children to the father. The applicant, who was neither present nor represented before that court, was granted only access. After consulting a psychologist, who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother, the court held that the children were happy and well integrated in Texas, where they were receiving special protection and attention from the authorities.",
"18. In December 1991 D.Z. moved to California with his two children.",
"19. In a decision of 24 February 1992 the investigating judge of the Metz tribunal de grande instance committed D.Z. for trial on a charge of failure to hand over a child to the person entitled to its custody, an offence under Article 357 of the French Criminal Code. The applicant joined the proceedings as a civil party.",
"20. On 18 September 1992 the Metz tribunal de grande instance, having tried D.Z. in absentia, convicted him and sentenced him to a year's imprisonment for failure to hand over the children and issued a warrant for his arrest.",
"21. The warrant could not be executed as D.Z. was not on French territory.",
"22. On an unknown date D.Z. lodged an appeal on points of law with the Court of Cassation against the Metz Court of Appeal's judgment of 28 May 1991.",
"23. In a judgment of 25 November 1992 the Court of Cassation pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive, dismissed D.Z.'s appeal and sentenced him to pay a civil fine of 10,000 French francs.",
"24. The applicant, who had started proceedings in the United States for the recognition and execution of the judgment of 28 May 1991, obtained five judgments between 1993 and 1994 from California courts ordering D.Z. to return the children to her. Thus on 10 August 1993, for instance, the Superior Court of the State of California granted authority to execute the judgment of the Metz Court of Appeal and ordered D.Z. to return the children to their mother.",
"25. In a report of 17 August 1993 an expert in family psychology registered with the California courts, L.S., stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife. While Maud did not seem to have any particular feelings towards her mother, Adèle told L.S. that her mother was “ugly and nasty” and did not love them but only wanted to show them off to others and buy them toys.",
"26. In a judgment of 1 February 1994 the California Court of Appeals held that the Harris County Court in Texas had no jurisdiction to set aside the Metz Court of Appeal's judgment of 28 May 1991. In a judgment of 29 April 1994 the Superior Court of the State of California once again affirmed the judgment of the Metz Court of Appeal, holding that the children should reside with the applicant and that their removal from the State of California without the court's express permission would be illegal.",
"27. D.Z. did not comply with the California judgments. In March 1994 he left the United States and went to Romania with his children.",
"28. In July 1994, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant applied to the French Ministry of Justice – France's Central Authority for the purposes of that instrument – for the return of her daughters.",
"29. In November 1994 the United States' Central Authority requested the Romanian Ministry of Justice (Romania's Central Authority) to return the children pursuant to Articles 3 and 5 of the Hague Convention.",
"30. In December 1994 France's Central Authority requested Romania's Central Authority to return the children pursuant to Articles 3 and 5 of the Hague Convention.",
"31. Relying on Article 2 of the Hague Convention, the applicant made an urgent application to the Bucharest Court of First Instance for an order requiring D.Z. to comply with the court decisions in which a residence order had been made in her favour and the children's return ordered.",
"32. The court delivered its judgment on 14 December 1994. It noted, firstly, that the Metz Court of Appeal, in its judgment of 28 May 1991, had ordered that the children should live with their mother and that the California courts had ordered the return of the children. It went on to note that D.Z. had abducted the children in breach of those judgments and that he had been sentenced to a year's imprisonment for failure to hand over a child. It held that the applicant's application satisfied the requirement of urgency, as her right might be irreparably affected in the event of delay. Moreover, the measure sought was a precautionary one, which did not prejudge the merits of the case but was designed to protect the applicant's right, which any delay would have jeopardised. Lastly, a prima facie case, which was a requirement for urgent proceedings to be admissible, had clearly been made out. As to the merits, the court held that the provisions of the Hague Convention were applicable to the case, as that convention had been incorporated into Romanian law by Law no. 100/1992 providing for Romania's accession to that instrument, and in particular, Article 14 of this convention, which enabled the court to rely on foreign court judgments directly without any need for a registration procedure. In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant.",
"33. That judgment could not be executed as D.Z. had hidden the children.",
"34. On an unknown date in December 1994 D.Z. removed the children from school and took them to an unknown location.",
"35. D.Z. appealed against the judgment of 14 December 1994. On 9 June 1995 the Bucharest County Court adjourned the case to 30 June 1995 and ordered that the children be heard.",
"36. On 30 June 1995, in the absence of the representative of the Ministry of Justice, which was intervening, and of that of the District Council of the second district of Bucharest, which was responsible for monitoring and ensuring compliance with the obligations of divorced parents, the court adjourned the case. It also granted an application by D.Z. for a stay of execution of the judgment pending the outcome of the appeal. No reasons were given for the latter decision.",
"37. On 23 August 1995 the Ministry of Justice asked Bucharest City Council to carry out a social inquiry at D.Z.'s home.",
"38. On an unspecified date the mayor of Bucharest informed the Ministry of Justice that a social inquiry had been carried out by the District Council of the second district of Bucharest in September 1995. The mayor of that district submitted the findings of the inquiry, signed by him, the town clerk and an inspector. They read as follows:",
"“The children Maud and Adèle ... live with their father and his wife in an eight-room house, and each girl has a room of her own.",
"Their father looks after them very well, as regards both their physical and their mental welfare, providing the best conditions for their upbringing.",
"It is evident from conversations with the girls in Romanian – they have a command of the language – that they are intelligent, sociable and at ease and that they lead a normal life, read, write and work hard at school.",
"There is an atmosphere of harmony and friendship and plenty of affection between the girls, their father and his wife.",
"The girls do not want to go and live with their mother in France, whom they remember as a cold and indifferent person. They say that they have always found their father understanding, warm and affectionate.",
"They are very impressed by Romania and the Romanians, among whom they have made many friends. During the holidays they went to the countryside and they felt wonderfully well there.",
"When asked to say whether or not they wanted to see their mother or go and live with her, they replied categorically 'no' and insisted that any decision concerning them should take their wishes into account.",
"In conclusion, we consider that in Romania the children Maud and Adèle have the best conditions for their upbringing.”",
"39. In a decision of 1 September 1995 the Bucharest County Court dismissed D.Z.'s appeal against the judgment of 14 December 1994.",
"40. D.Z. appealed to the Bucharest Court of Appeal, which in a final judgment of 14 March 1996 dismissed the appeal for lack of grounds.",
"A. Objection to execution",
"41. On an unknown date D.Z. lodged an objection to the execution ( contestaţie la executare ) of the judgment of 14 December 1994. After having taken evidence from the children, who reiterated their wish to stay with their father, the Bucharest Court of First Instance dismissed the objection on 7 April 1995.",
"42. On an appeal by D.Z. against that decision, the Bucharest County Court affirmed it on 9 February 1996.",
"B. Application to the Bucharest Court of First Instance for transfer of parental responsibility",
"43. On 27 October 1995 D.Z. lodged an application with the Bucharest Court of First Instance to be given exclusive parental responsibility. He argued that since 1994 he had been living in Bucharest in a spacious eight-room house which afforded the children exceptional conditions. They did not want to go to live with their mother, who belonged to a sect.",
"The court, informed by D.Z. that the applicant's address for service was the address of Ştefan Constantin, caused the date of the hearing to be served only on him. It is clear from documents available to the Court that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before the Bucharest Court of First Instance.",
"44. On 26 January 1996, at the request of the Bucharest Court of First Instance, the District Council of the second district of Bucharest carried out a social inquiry. Following that inquiry, the mayor of Bucharest informed the court that the two girls were well developed, both physically and psychologically, that they led normal lives, had friends at school and in the neighbourhood and were very attached to their father and his wife, who both looked after them very well and with whom they wished to live.",
"45. After holding two hearings in the absence of the applicant on 8 and 29 January 1996 and interviewing the children in private on 16 January 1996, the court delivered its judgment on 5 February 1996, likewise in the applicant's absence. Emphasising that the children's interests were paramount and basing its judgment on documents drawn up by the children's teachers attesting to their good performance at school, on a letter from the Ministry of Religious Affairs to the effect that the sect to which the applicant belonged was not recognised in Romania, and on the social inquiry carried out by the Bucharest District Council, the court allowed D.Z.'s application, holding that he was providing the best living conditions and upbringing for the children, whom he had, moreover, brought up on his own since the divorce.",
"46. On 16 October 1996 the Bucharest County Court set aside that judgment on appeal because of an irregularity in the service of notice on the applicant, and remitted the case to the Court of First Instance. It noted that the applicant lived in France, that she had given Ştefan Constantin special authority to represent her in another set of legal proceedings and that consequently, in the absence of special authority in the case before the court, the summons should have been served at her permanent address in France.",
"47. D.Z. challenged that decision on the ground that the applicant had given Ştefan Constantin general authority to act for her and that consequently the service of the court documents at his address was valid.",
"48. In a judgment of 9 April 1997, delivered in the absence of either the applicant or any representative of hers, the Bucharest Court of Appeal allowed the appeal on the ground that the applicant had given Ştefan Constantin general authority to act on her behalf. It set aside the decision of 16 October 1996 and remitted the case to the County Court for reconsideration of the appeal.",
"49. The case was set down for hearing in the County Court on 23 January 1998. According to the record of the hearing made on that date, the hearing was attended by D.Z., his lawyer and the assistant of Florea Constantin, the lawyer who, according to the court, was supposed to be acting on behalf of the applicant. The Court cannot determine from the documents submitted to it which of Florea and Ştefan Constantin was regarded by the County Court as having been appointed by the applicant.",
"The assistant pointed out that Florea Constantin was absent and sought an adjournment of the hearing. That application was refused after the court had heard the submissions of counsel for D.Z. It gave its decision on 30 January 1998, in the absence of the applicant or a representative. Without mentioning the issue of the applicant's representation, the court dismissed the appeal and thus upheld the judgment of 5 February 1996, noting that the children wished to stay with their father, who was affording them the best living conditions.",
"50. It appears that an appeal against the decision of 30 January 1998 was lodged on behalf of the applicant. It cannot be determined from the documents submitted to the Court whether the applicant herself entered the appeal. However that may have been, the Bucharest Court of Appeal dismissed the appeal for lack of grounds on 28 May 1998. As was apparent from that decision, which the Government did not file with the Registry until 13 September 1999, only D.Z. attended the hearing on 28 May 1998.",
"C. Application to the Metz tribunal de grande instance for transfer of parental responsibility",
"51. In an application dated 5 January 1995 D.Z. applied to the family judge of the Metz tribunal de grande instance for an order transferring the children's residence to his address and granting him exclusive exercise of parental responsibility.",
"52. After many adjournments the tribunal de grande instance delivered a judgment on 22 February 1996. It held firstly that it was unnecessary to take account of the judgment of the Bucharest Court of First Instance of 5 February 1996 because that court had no jurisdiction to deal with the merits of the custody of the children, since the Romanian courts could only deal with an application for the return of the children under the Hague Convention. The tribunal de grande instance then declined to take evidence from the children. It found that since 1991 D.Z. had prevented them from seeing their mother and that he had brought them up to feel hatred for her. In letters of 1 and 3 August 1994, in which they spoke of their mother, the girls had used terms such as “idiot” and “my ex-mother” and had hoped that “her house or her flat [would catch] fire and that she [would be] in it when it happen[ ed ]”, terms which the tribunal de grande instance found particularly shocking coming from children of 10 and 14. The tribunal de grande instance concluded that the intolerance, intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment.",
"53. The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms:",
"“The Family Judge must rule in the interests of the children when determining their place of residence.",
"The Metz Court of Appeal held in a judgment of 28 May 1991 that it was in the children's interests to live with their mother, in France, in their native Lorraine, both their parents having opted for French nationality.",
"Since that date the mother has had no further contact with her children because of the father's actions.",
"Mrs Ignaccolo filed with the Court the various records of proceedings drawn up in Romania when attempts were made to obtain execution of the decision to return the children, letters from the Romanian Ministry of Justice to the Office for International Judicial Mutual Assistance, from which it appears that Mr Zenide is hiding the children, has acquired a dog which he has trained to attack anyone who approaches the children, and removed the children from school in December 1994 to avoid their whereabouts being discovered.",
"He maintained that his behaviour was justified because Mrs Ignaccolo belonged to a sect and had not looked after the children when they cohabited. However, he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in the United States or Romania who did not personally know the children's mother.",
"The educative abilities of a father who totally denies the image of the mother, who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated, in order to evade enforcement of court decisions, to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt.",
"The children's interests in such a situation are intangible and indefinable, regard being had, firstly, to the pressure and conditioning they undergo with their father and, secondly, to the fact that for five years they have been away from their mother, whom they no longer know.",
"The children's wish to stay and live with their father, as expressed both in their letters and when they were interviewed by the Romanian court, cannot on its own determine their interests since, if it did, that would amount to laying upon children of 10 and 14 the responsibility of deciding where they should live.",
"Mr Zenide cannot secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time. That being so, his application must quite simply be dismissed ...”",
"D. Attempts to enforce the decision of 14 December 1994",
"54. Since 1994 the applicant has gone to Romania eight times in the hope of meeting her children.",
"55. Several attempts were made to execute the decision of 14 December 1994 but without success.",
"56. On 22 December 1994 a bailiff went to D.Z.'s home, accompanied by the applicant, her lawyer, a locksmith and two policemen. Only D.Z.'s wife O.Z. and a guard dog were at the house. O.Z., a French national, indicated that she would only allow the bailiff to inspect the house if a representative from the French embassy was present. The applicant and her lawyer therefore went to the French embassy, where the French consul, T., and an interpreter agreed to accompany them to D.Z.'s home.",
"57. During the applicant's absence, but while the policemen and the bailiff were still on the spot, D.Z. and an uncle of his, S.G., entered the house. When the applicant returned, accompanied by T. and the interpreter, O.Z. allowed those present, with the exception of the applicant, to search the premises. As the dog was very fierce, the search was carried out hastily and the girls were not found. D.Z. remained out of sight during the search.",
"58. On 23 December 1994 the applicant wrote to the Romanian Minister of Justice to complain of the course of events on 22 December. She requested the Minister to lodge a criminal complaint against O.Z. for failure to comply with a court decision. Asserting that she had no news of her daughters, she also asked him to institute criminal proceedings against D.Z., O.Z. and S.G. for ill-treatment of minors, false imprisonment and, if applicable, homicide.",
"59. On 27 December 1994 a bailiff, the applicant, her lawyer and two police officers again went to D.Z.'s home. Finding no one there, they spoke to a neighbour, who told them that D.Z. had left with the children on 22 December 1994. The group then went to the home of G.A., an uncle of D.Z.'s, with whom D.Z. and the children sometimes lived. There they found G.A. and the same guard dog. G.A. told them that he had not seen either D.Z. or the children since 20 December 1994. As to the dog, he told the bailiff that D.Z. had bought it to protect his daughters.",
"60. In a letter of 7 February 1995 the French Ministry of Justice informed the applicant that the Romanian Ministry of Justice had lodged a criminal complaint against D.Z. with the appropriate public prosecutor's office.",
"61. In a letter dated 5 May 1995 the Romanian Ministry of Justice informed the French Ministry of Justice that numerous approaches had been made to the police to locate the children, but to no avail, as D.Z. had withdrawn the children from school. The letter also stated that the Romanian authorities had lodged a criminal complaint against D.Z. for ill-treatment of minors. Lastly, the Romanian Ministry of Justice acknowledged that D.Z.'s bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours.",
"62. On 10 May 1995 a group composed of the applicant, her lawyer, a representative from the Romanian Ministry of Justice, two bailiffs, three police officers and an official from the French embassy in Bucharest went to D.Z.'s home. The group was able to inspect the house but did not find the children there. During the four-hour discussion which followed, D.Z. stated that the girls were in Romania, but he refused to say more. He nevertheless promised to produce them to the Ministry of Justice on 11 May 1995.",
"63. A report drawn up by the French embassy in Bucharest on the visit of 10 May 1995 states:",
"“Contrary to what had been announced by Mrs F. [of the Romanian Ministry of Justice] before this search, D.Z. was not arrested by the police for failure to return the children. In the course of the intervention the public prosecutor's office, with which Mrs. F. was in touch by telephone, reconsidered its position and refused to have D.Z. brought before it. This change of mind was probably due to an intervention by Mr. G., a very influential lawyer, after he had been alerted by his client D.Z. ...”",
"64. Neither D.Z. nor the children kept the appointment on 11 May 1995.",
"65. As a consequence, D.Z. received an official request to report to the Ministry of Justice with his children on 15 May 1995, with a view to interviewing the children in the presence of their mother. On 15 May 1995 only Mr G., D.Z.'s lawyer, went to the Ministry and reiterated his client's refusal to produce the children.",
"66. On 4 December 1995 a fresh attempt to execute the judgment was made. The applicant, her lawyer and a bailiff went to D.Z.'s home. Only the bailiff and the applicant's lawyer were allowed in by the two policemen from the sixth district who were already on the spot, the applicant being requested to stay outside. According to D.Z. and the policemen, the children were not in the house. The bailiff, however, was not allowed to check those assertions for himself. Shortly afterwards a police inspector whom neither the two police officers nor the bailiff knew arrived and asked D.Z. to produce the children to him on the following day. D.Z. finally accepted a proposal from the applicant's lawyer that he should produce the children at 10.30 a.m. the following day at the bailiffs' office at the Bucharest Court of First Instance.",
"67. On 5 December 1995 the bailiff, the applicant and her lawyer waited for D.Z. in vain. A report was drawn up on that occasion.",
"68. In a letter of 10 May 1996 the French Minister of Justice informed his Romanian counterpart of the applicant's fears that the Romanian police were turning a blind eye to D.Z.'s conduct. He therefore asked him to intervene with the Romanian police to ensure that they did everything possible to secure the children's return to their mother.",
"69. On 29 January 1997 the applicant met her daughters for the first time for seven years. The meeting lasted ten minutes and took place in Bucharest in the staffroom of the children's school, where D.Z. was himself a teacher.",
"70. The meeting was attended by a bailiff, two senior officials from the Romanian Ministry of Justice, the French Consul-General in Bucharest, two officers from police headquarters, the headmaster and deputy headmaster of the school and the girls' two form teachers. According to the report drawn up by the bailiff on that occasion, the purpose of the meeting was to convince those present of the girls' refusal to return to their mother.",
"71. When she saw the applicant, Maud tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother. There followed, without the applicant being present, a discussion in which Maud stated that her mother had lied to them and done a great deal of harm. She reiterated her wish to stay with her father and never to see her mother again.",
"72. As to Adèle, she began to cry and shouted to the applicant to go away, saying that she never wanted to see her again. Her form teacher took the initiative of terminating the interview so as not to traumatise the girl. Once the girls had been removed by the form teachers, the applicant said she no longer insisted on execution of the order of 14 December 1994 and asked the headmaster to keep her regularly informed of her daughters' performance at school.",
"73. In a letter of 31 January 1997 the Romanian Ministry of Justice, Romania's Central Authority, informed the French Ministry of Justice, France's Central Authority, of its decision to order that the children should not be returned. The reason for that decision was the children's obstinate refusal to see their mother again, which had been apparent at the meeting of 29 January 1997.",
"74. In a letter of 17 June 1997 the Romanian Ministry of Justice sent the applicant the girls' average marks for the school year 1996/97.",
"75. In a letter of 7 July 1997 to the Romanian Ministry of Justice the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters' school results and expressed her disappointment at the paucity of the information supplied on 17 June 1997. She said she could not accept such a “farce”."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Constitution",
"76. The relevant provisions of the 1991 Constitution provide:",
"Article 11(2)",
"“Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.”",
"Article 20",
"“(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.",
"(2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”",
"B. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction",
"77. The relevant provisions of the Hague Convention read as follows:",
"Article 7",
"“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.",
"In particular, either directly or through any intermediary, they shall take all appropriate measures:",
"(a) To discover the whereabouts of a child who has been wrongfully removed or retained;",
"(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;",
"(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;",
"(d) To exchange, where desirable, information relating to the social background of the child;",
"(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;",
"(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;",
"(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;",
"(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;",
"( i ) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”",
"C. Family Code",
"78. Article 108 of the Family Code provides:",
"“The supervisory authority [ autoritatea tutelară ] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child.",
"The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.”",
"D. Criminal Code",
"79. Article 307 of the Criminal Code provides:",
"“It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child.",
"The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body.",
"Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim.",
"No criminal liability shall be incurred where there has been a reconciliation between the parties.”",
"E. Code of Criminal Procedure",
"80. The relevant provisions of the Code of Criminal Procedure read as follows:",
"Article 279",
"“As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim.",
"The complaint shall be lodged:",
"...",
"(b) with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a).",
"...”",
"Article 284",
"“Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...”",
"Article 285",
"“Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.”",
"F. Code of Civil Procedure",
"81. The relevant provisions of the Code of Civil Procedure read as follows:",
"Article 67",
"“The parties may exercise their procedural rights in person or through a representative.",
"A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so.",
"If the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.”",
"Article 87",
"“...",
"8. Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail...",
"In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...”",
"Article 107",
"“Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.”",
"G. Administration of Justice (Amendment) Act (Law no. 142 of 24 July 1997)",
"82. The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows:",
"Section 30",
"“The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice.",
"The work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision.",
"...”",
"Section 31( i )",
"“State Counsel's Office shall have the following duties:",
"...",
"– defending the rights and interests of minors and persons deprived of legal capacity.”",
"Section 38",
"“The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel.",
"Where he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment...",
"...",
"The Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime.",
"The Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...”",
"H. Practice in respect of service of summonses",
"83. In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative.",
"Legal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania ( Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997).",
"84. The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994).",
"PROCEEDINGS BEFORE THE COMMISSION",
"85. Mrs Ignaccolo-Zenide applied to the Commission on 22 January 1996. She alleged that, contrary to Article 8 of the Convention, which guarantees the right to respect for family life, the Romanian authorities had not taken measures to ensure execution of the court decisions whereby custody of the children was split between herself and her former husband and they were to live with her.",
"86. The Commission (First Chamber) declared the application (no. 31679/96) admissible on 2 July 1997. In its report of 9 September 1998 (former Article 31 of the Convention) [1], it expressed the opinion that there had been a violation of Article 8 (unanimously).",
"FINAL SUBMISSIONS TO THE COURT",
"87. In their memorial the Government requested the Court to find that they had discharged the positive obligations on them under Article 8 of the Convention and that there had consequently been no violation of that provision.",
"88. The applicant asked the Court to hold that there had been a violation of Article 8 of the Convention and to award her just satisfaction under Article 41.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"89. The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. The authorities had thus breached Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"90. The applicant complained, in particular, of the half-hearted attempts made to execute the order of 14 December 1994, which she described as “pretences”, and pointed out that nothing had been done to find her daughters, who had been hidden by their father each time before the bailiff arrived. As to the meeting arranged by the authorities on 29 January 1997, she considered that in view of the circumstances in which it had taken place, it was just another pretence. She also criticised the Romanian authorities for their total inactivity between December 1995 and January 1997.",
"91. The Government maintained that the authorities in question had taken adequate and effective steps to have the order of 14 December 1994 executed, for example by arranging for the bailiff to be assisted by police officers and by summoning the children's father to the Ministry of Justice. They pointed out that the failure to execute the decision was due firstly to non-compliance by the father, for whose behaviour the Government could not be held responsible, and secondly to the children's refusal to go and live with the applicant, again a matter for which the Government could not be blamed.",
"92. In the Commission's view, the national authorities had neglected to make the efforts that could normally be expected of them to ensure that the applicant's rights were respected, thereby infringing her right to respect for her family life as guaranteed by Article 8 of the Convention.",
"93. The Court notes, firstly, that it was common ground that the tie between the applicant and her children was one of family life for the purposes of that provision.",
"94. That being so, it must be determined whether there has been a failure to respect the applicant's family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49).",
"As to the State's obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, the following judgments : Eriksson v. Sweden, 22 June 1989, Series A no. 156, pp. 26-27, § 71; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A, p. 30, § 91; Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90; and Hokkanen v. Finland, 23 September 1994, Series A no. 299-A, p. 20, § 55).",
"However, the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see the Hokkanen judgment cited above, p. 22, § 58).",
"95. Lastly, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is all the more so in the instant case as the respondent State is also a party to that instrument, Article 7 of which contains a list of measures to be taken by States to secure the prompt return of children.",
"96. What is decisive in the present case is therefore whether the national authorities did take all steps to facilitate execution of the order of 14 December 1994 that could reasonably be demanded (ibid.).",
"A. Period to be taken into consideration",
"97. The Government maintained that their obligation to take steps to facilitate the reunion of the applicant and her children had arisen out of the order made on an urgent application by the Bucharest Court of First Instance on 14 December 1994 and had come to an end with the final decision of 28 May 1998 whereby the Bucharest Court of Appeal gave parental responsibility to D.Z.",
"98. The applicant disputed the Government's submission and argued that the decision of 28 May 1998 had never been brought to her knowledge and that she was unaware of its content. She also denied having appointed a representative to represent her in the proceedings that led to the aforementioned decision and submitted that as she had not been a party to the proceedings, the decision in question had been given in breach of the adversarial principle and could not be relied on against her. Lastly, she disputed that the Romanian courts were competent to take a decision on the merits in respect of parental responsibility and argued that under Article 16 of the Hague Convention, the French courts had exclusive jurisdiction in the matter. In that connection, she pointed out that D.Z. had brought an action in the Romanian courts to vary the arrangements for exercising parental responsibility although an identical action was already pending in the French courts, likewise on his initiative.",
"99. The Court must therefore determine whether the authorities' obligation to take steps to facilitate the execution of the order of 14 December 1994 ceased after the judgment of 28 May 1998 giving parental responsibility to D.Z.",
"The Court points out that in its judgment of 24 February 1995 in the McMichael v. the United Kingdom case (Series A no. 307-B, p. 55, § 87) it held that, although Article 8 contained no explicit procedural requirements,",
"“the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:",
"'[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.' (see the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no. 121-A], pp. 28 and 29, §§ 62 and 64)”.",
"The Court notes, firstly, that neither the applicant nor any representative of hers was present at the delivery of the Bucharest Court of Appeal's judgment of 28 May 1998, nor was that judgment served on the applicant. Not until 13 September 1999, when the Government submitted it to the Court, was the applicant able to study the judgment in question. Secondly, the applicant was not present at any of the hearings held during the course of the proceedings which led to the decision in issue. It appears from the documents produced by the Government that, contrary to Article 87 § 8 of the Romanian Code of Civil Procedure, no summons was served on the applicant at her home in France, although her address was known.",
"As regards the notification served on Ştefan Constantin, the Court notes that it was not a substitute for the notification to the applicant required by Article 87 § 8 in fine of the Code of Civil Procedure and the settled case-law of the domestic courts (see paragraph 83 above).",
"100. In the light of those circumstances, the Court considers that the proceedings that led to the Bucharest Court of Appeal's decision did not satisfy the procedural requirements of Article 8 of the Convention. Consequently, it cannot consider that the aforementioned decision put an end to the Government's positive obligations under Article 8.",
"B. Enforcement of the applicant's right to parental responsibility and to the return of the children",
"101. The Court must therefore determine whether the national authorities took the necessary adequate steps to facilitate the execution of the order of 14 December 1994.",
"102. In a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. In the instant case this was all the more so as the applicant had brought an urgent application in the courts. The essence of such an application is to protect the individual against any damage that may result merely from the lapse of time.",
"The Court notes that Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay.",
"103. In the instant case bailiffs went to D.Z.'s home on four occasions between December 1994 and December 1995. While the initial attempts at execution took place immediately after the order of 14 December 1994, on 22 and 27 December 1994, the same cannot be said of the subsequent attempts: the third visit from the bailiffs did not take place until four months later, on 10 May 1995, and the last visit was on 4 December 1995.",
"The Court notes that no satisfactory explanation was put forward to justify those delays. Similarly, it has difficulty in discerning the reasons why the Bucharest County Court decided to stay execution of the order between 30 June and 1 September 1995.",
"104. Furthermore, the Court notes that the Romanian authorities were totally inactive for more than a year, from December 1995 to 29 January 1997, when the only meeting between the applicant and her children took place. No explanation for this was provided by the Government.",
"105. For the rest, it observes that no other measure was taken by the authorities to create the necessary conditions for executing the order in question, whether coercive measures against D.Z. or steps to prepare for the return of the children.",
"106. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live.",
"107. The Government alleged that such measures could only have been taken at the instance of the applicant, but she had not made any application to that end. In particular, she could have brought an action in a civil court, under Article 1075 of the Civil Code, for a fine to be imposed for every day's delay in the execution of the order of 14 December 1994, or she could have lodged a criminal complaint with the appropriate bodies for failure to comply with the parental-responsibility measures.",
"108. The Court is not required to examine whether the domestic legal order allowed of effective sanctions against D.Z. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention. The Court's sole task is to consider whether in the instant case the measures taken by the Romanian authorities were adequate and effective.",
"109. It notes in this connection that D.Z.'s failure to go to the Ministry of Justice on 11 or 15 May 1995 as requested did not have any consequences for him. Similarly, the Romanian authorities imposed no penalty on him after his refusal to present the children to the bailiffs. Furthermore, they took no initiative to try to ascertain the children's whereabouts.",
"110. As to the alleged failure to lodge a criminal complaint, which was necessary to trigger proceedings against D.Z., the Court notes that in a letter of 23 December 1994 the applicant indicated to the Minister of Justice that she wished to lodge a criminal complaint against D.Z. and, having set out the grounds for the complaint, asked him to do what was necessary. No action was taken on that letter, however.",
"The Court observes that under sections 30 and 38 of the Administration of Justice (Amendment) Act, State Counsel's offices are under the authority of the Minister of Justice, who has the power to give instructions to State Counsel. That being so, it regards the Government's argument that the applicant did not lodge a criminal complaint with the appropriate body as being invalid.",
"111. Inasmuch as the Government criticised the applicant for not having applied for an order imposing a daily fine, the Court considers that such an action cannot be regarded as effective, since it is an indirect and exceptional method of execution. Furthermore, the applicant's omission could not have absolved the authorities from their obligations in the matter of execution, since it is they who exercise public authority.",
"112. Nor was any preparatory contact between the social services, the applicant and the children arranged by the authorities, who also failed to seek the assistance of psychologists or child psychiatrists (see, mutatis mutandis, the Olsson (no. 2) judgment cited above, pp. 35-36, §§ 89-91). The social services, for instance, despite having sufficient relevant powers under Article 108 of the Family Code, only met the children in connection with the proceedings for transfer of parental responsibility (see paragraphs 38 and 44 above) and did no more than make purely descriptive inquiry reports.",
"Apart from the one on 29 January 1997, no meeting between the applicant and her children was arranged by the authorities, although the applicant had travelled to Romania on eight occasions in the hope of seeing them. As to the meeting on 29 January 1997, which, the Court stresses, took place one year after the present application was lodged with the Commission and two years after the interim order of 14 December 1994, it was not, in the Court's view, arranged in circumstances such as to encourage a positive development of the relations between the applicant and her children. It took place at the children's school, where their father was a teacher, in the presence of a large group of people consisting of teachers, civil servants, diplomats, policemen, the applicant and her lawyer (see paragraph 70 above). No social workers or psychologists had been involved in the preparation of the meeting. The interview lasted only a few minutes and came to an end when the children, who were clearly not prepared in any way, made as if to flee (see paragraphs 71-72 above).",
"On 31 January 1997, immediately after the failure of that one and only meeting, the Romanian Ministry of Justice, acting as Central Authority, ordered that the children should not be returned, on the ground that they were refusing to go and live with their mother (see paragraph 73 above). Since that date no further attempt has been made to bring the applicant and her children together.",
"113. The Court notes, lastly, that the authorities did not take the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention.",
"Having regard to the foregoing, and notwithstanding the respondent State's margin of appreciation in the matter, the Court concludes that the Romanian authorities failed to make adequate and effective efforts to enforce the applicant's right to the return of her children and thereby breached her right to respect for her family life, as guaranteed by Article 8.",
"There has consequently been a violation of Article 8.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"114. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Non-pecuniary damage",
"115. Mrs Ignaccolo-Zenide sought 200,000 French francs (FRF) in compensation for the non-pecuniary damage due to the anxiety and distress she had experienced on account of the failure to enforce her parental rights.",
"116. The Government did not express a view.",
"117. The Court considers that the applicant must indeed have sustained non-pecuniary damage. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards FRF 100,000 under this head.",
"B. Costs and expenses",
"118. The applicant also claimed reimbursement of the sum of FRF 86,000, which she broke down as follows:",
"(a) FRF 46,000 for costs and expenses relating to the domestic proceedings, comprising FRF 6,000 for her lawyer's fees in Romania and FRF 40,000 for the travel and subsistence expenses she had to incur for her eight journeys to Romania;",
"(b) FRF 40,000 for fees payable to the lawyer who had represented her at Strasbourg, in accordance with a fee agreement concluded on 15 July 1998.",
"119. The applicant requested the Court to add to that sum “any value-added tax”.",
"120. The Government made no submissions.",
"121. The Court considers that the expenses relating to the steps taken in Romania and at Strasbourg to prevent or redress the situation it has held to be contrary to Article 8 of the Convention were incurred necessarily; they must accordingly be reimbursed in so far as they do not exceed a reasonable level (see, for example, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 43, § 104).",
"The Court awards the applicant for costs and expenses the sum of FRF 86,000, together with any value-added tax that may be chargeable.",
"C. Default interest",
"122. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum."
] |
41 | Iglesias Gil and A.U.I. v. Spain | 29 April 2003 | The applicant alleged that the Spanish authorities had not taken appropriate measures to ensure the prompt enforcement of judicial decisions awarding her custody and exclusive parental authority in respect of her child – who had been taken to the United States of America with her father. She complained in particular that the authorities had lacked diligence in dealing with her abduction complaint. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Spanish authorities had failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and the child’s right to join his mother, thereby breaching their right to respect for family life. It observed in particular that it was for the authorities to implement the appropriate measures provided for in the relevant provisions of the Hague Convention of 25 October 1980, to ensure the child’s return to her mother. No measures had however been taken to ensure the enforcement of decisions taken in favour of the applicant and her child. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, A.U.I., who was born in 1995.",
"10. On 8 September 1989 the first applicant married A.U.A. On 3 June 1994 the couple divorced. Their son A.U.I. was born on 7 December 1995 and A.U.A. acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of A.U.I., and the father access. On 1 February 1997 A.U.A. abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States.",
"A. Domestic court proceedings",
"1. The first applicant’s criminal complaint of unlawful abduction",
"11. The first applicant lodged a criminal complaint with Vigo investigating judge no. 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of A.U.A.’s family who, she said, had assisted in her son’s abduction.",
"12. During the investigation, the first applicant requested Vigo investigating judge no. 5 to monitor calls on A.U.A.’s mobile telephone and to interview members of A.U.A.’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was A.U.A.’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to A.U.A. that was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused.",
"13. The first applicant asked the judge to issue an international search and arrest warrant against A.U.A., but in an order of 29 May 1997, he declined, stating:",
"“...",
"2. As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence.",
"...",
"4. Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.”",
"14. In a decision of 5 June 1997, investigating judge no. 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds:",
"“...",
"2. Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure).",
"3. The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay.",
"...",
"6. A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.”",
"15. In an order of 25 May 1998, the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt, for the following reasons:",
"“... As regards an international search and arrest warrant against A.U.A., this issue was resolved by the Pontevedra Audiencia in its decision of 23 September 1997. No new facts have emerged since then that would justify reclassifying the offence. Under no circumstances can it amount to ‘false imprisonment’, as the judgment of 5 July 1993 on the abduction of minors makes clear. In that judgment, the court held: ‘The fact that a father has taken his minor child with him solely in order to enjoy its company cannot amount to the offence of child abduction’ ...",
"Lastly, as to the suspected offence of criminal contempt, no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties. Consequently, Interpol would not act on such a warrant, as it would not be valid in law.”",
"16. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998.",
"2. The first applicant’s first amparo appeal",
"17. The first applicant sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts.",
"3. Provisional discharge order by investigating judge no. 5",
"18. At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against A.U.A. However, he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets. He also made a final order dismissing the charges against the members of A.U.A.’s family who had been implicated by the first applicant. The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter’s absence from Spain had prevented his being questioned or formally charged in accordance with Article 791 § 4 of the Code of Criminal Procedure. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 9 November 1998.",
"4. The first applicant’s second amparo appeal",
"19. The first applicant lodged an amparo appeal against those decisions with the Constitutional Court, in which she alleged violations of Article 17 (right to liberty and security), taken together with Articles 18 (rights to private life and family privacy), 24 (right to a fair hearing) and 39 (social, economic and legal protection of the family and children) of the Constitution. She also relied on Articles 5 and 8 of the Convention. In her appeal, she complained in particular of the investigating judge’s systematic refusal to issue an international search warrant for her child, a refusal which, she said, was in breach of the positive duty to protect children and families. She also alleged a violation of Article 11 § 1 of the Convention on the Rights of the Child of 1989, which requires States to take measures to combat the illicit transfer and non-return of children abroad. In her submission, by refusing to take any investigative steps, the investigating judge had directly infringed both her and her son’s right to private and family life, and her right to judicial protection, as guaranteed by Article 24 the Constitution and Article 6 of the Convention.",
"20. In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the first applicant had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures.",
"5. Other decisions in the criminal proceedings",
"21. In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997:",
"“... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators. However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court.”",
"22. An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed.",
"6. Award of full parental responsibility to the first applicant",
"23. In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. It gave the following reasons for its decision:",
"“... Having considered the evidence, the Court has decided to grant the applicant’s application. ... the case file shows that, after continually failing to comply with the access arrangements (see this Court’s decision of 20 December 1996), the respondent did not return the child to its mother at the end of the period stipulated in the decision of 20 December 1996. Furthermore, since 1 February 1997, the whereabouts of both father and child have been unknown, which means that the child has been removed from the applicant’s custody in breach of a court order. Such conduct can only be described as very serious, as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up, thereby depriving it both now and then of its mother’s love and protection ... at the most tender of ages, with the serious harm which that entails ... Thus, by putting his own interests before those of his child, [A.U.A.] has acted in a manner that is seriously detrimental to the child’s welfare ...”",
"7. Renewal of contact between the first applicant and her son, the return of the child and further criminal complaints",
"24. According to a psychologist’s report produced by the first applicant in April 2000, A.U.A. first made contact with her through a telephone call in which he imposed various conditions for the child’s return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion. On 30 September 2000 Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001.",
"25. On 18 April 2000 the first applicant saw her son for the first time since his abduction in February 1997. On 12 May 2000 A.U.A. voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the first applicant was able to recover her child with police assistance on A.U.A.’s return to Vigo with the child. She said that for a time she was forced to go into hiding with her son in a shelter for women.",
"26. On 14 July 2000 the Family Court granted A.U.A. access. As he was prevented from exercising that right, A.U.A. lodged a criminal complaint with the Vigo investigating judge against the first applicant and her parents alleging aggravated contempt."
] | [
"II. RELEVANT LAW AND PRACTICE",
"A. The Constitution",
"27. The relevant provisions of the Constitution read as follows:",
"Article 10 § 2",
"“Provisions relating to the fundamental rights and the freedoms recognised by the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and international treaties and agreements on human rights that have been ratified by Spain.”",
"Article 18",
"“1. Everyone’s right to honour and to private and family life ... shall be protected.",
"...”",
"Article 24",
"“1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights.",
"...”",
"Article 39 § 4",
"“Children shall enjoy the protection provided for in the international agreements safeguarding their rights.”",
"Article 96 § 1",
"“Once officially published in Spain, international treaties that have been validly concluded shall be part of the domestic legal order. ...”",
"B. The United Nations Convention on the Rights of the Child of 20 November 1989",
"28. The relevant provisions of the Convention on the Rights of the Child [ Spain ratified this instrument on 6 December 1990. The United States signed it on 16 February 1995, but have not yet ratified it ] provide as follows:",
"Article 11",
"“1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.",
"2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.”",
"C. The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980",
"29. The relevant provisions of this convention [ Spain ratified this instrument on 16 June 1987 and the United States on 29 April 1988 ] provide as follows:",
"Article 1",
"“The objects of the present Convention are:",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”",
"Article 2",
"“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”",
"Article 3",
"“The removal or the retention of a child is to be considered wrongful where:",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”",
"Article 6",
"“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.",
"...”",
"Article 7",
"“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.",
"In particular, either directly or through any intermediary, they shall take all appropriate measures:",
"(a) to discover the whereabouts of a child who has been wrongfully removed or retained;",
"(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;",
"(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;",
"(d) to exchange, where desirable, information relating to the social background of the child;",
"(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;",
"(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;",
"(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;",
"(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;",
"(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”",
"Article 8",
"“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.",
"...”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”",
"Article 12",
"“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:",
"(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”",
"D. Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors, amending the Civil Code and Code of Civil Procedure (published in the Official Gazette of 17 January 1996)",
"30. The relevant provisions of this Law provide:",
"Section 3",
"“Minors shall enjoy the rights afforded them by the Constitution and international treaties ratified by Spain, in particular, the United Nations Convention on the Rights of the Child, and the other rights guaranteed by domestic legislation ...",
"This law, its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by Spain and, in particular, the Convention on the Rights of the Child of 20 November 1989.",
"The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument.”",
"31. Pursuant to final provision 13 of the aforementioned Law on the legal protection of minors, a second paragraph was added to Article 216 of the Civil Code, which provides as follows:",
"Article 216",
"“The functions of guardianship constitute a duty. They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities.",
"The measures and action contemplated by Article 158 of this Code may also be ordered by the court, on its own initiative or on the application of any interested party, in all cases of de facto or de jure guardianship or custody of minors, ... if their interest so requires.”",
"Article 158 of the Civil Code provides as follows:",
"Article 158",
"“The court shall, on its own initiative, or on an application by the child, a parent or the public prosecutor, order the following measures:",
"...",
"(2) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful;",
"(3) in general, any other action it considers expedient to remove the child from danger or prevent it coming to harm.",
"All such measures may be ordered in any civil or criminal proceedings ...”",
"E. Provisions of the Civil Code on the legal representation of minor children",
"32. The provisions read as follows:",
"Article 154",
"“Responsibility for dependent minors shall be vested in their mother and father.",
"Parental responsibility shall always be exercised in the child’s interest and in accordance with its personality; it shall include the following powers and duties:",
"(1) to provide the child with protection, company, food, an upbringing and proper guidance;",
"(2) to represent the child and administer its property;",
"...",
"Parents may seek judicial assistance when exercising their parental responsibility. ...”",
"Article 162",
"“Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters.",
"...”",
"F. Domestic practice in criminal proceedings on the abduction of a minor child by one of its parents",
"33. In general, the Spanish courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping, offences under Articles 163 to 165 of the Criminal Code carrying between four and ten years’ imprisonment. Under the case-law, a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under Article 556 of the Criminal Code, for which the punishment is six months’ to one year’s imprisonment.",
"34. Institutional Law no. 9/2002 of 10 December 2002 amended the provisions of the Criminal and Civil Codes dealing with the abduction of minors.",
"35. As regards the position under the criminal law, the explanatory memorandum to the Law indicated that a clearly worded provision, creating a separate offence from the generic offence of criminal contempt, had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child’s interest.",
"36. The Law inserted a new Article 225 bis in the Criminal Code, worded as follows:",
"“1. A parent who, without any justification, abducts his or her minor child shall be liable on conviction to between two and four years’ imprisonment and shall forfeit his or her parental responsibility for between four and ten years.",
"2. For the purposes of this Article, the following acts shall be deemed to constitute abduction:",
"(i) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted;",
"(ii) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision.",
"3. If the minor is removed from Spain or a condition is imposed for its return, the sentence shall be in the upper half of the range set out in paragraph 1.",
"...",
"5. The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The first applicant, acting in her own name and as her child’s legal representative, alleged that the Spanish authorities had failed to take effective measures to ensure the prompt execution of the court orders that had been made and to help secure her son’s return. The applicant claimed that they had thus violated Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"38. She complained, in particular, of a lack of diligence on the part of the judicial authorities in dealing with her complaint of child abduction.",
"A. Submissions of the parties",
"1. The applicants",
"39. The first applicant submitted that the respondent State had failed to discharge its obligations under both the Convention and other provisions of domestic and international law. In particular, she said that the domestic authorities had infringed Article 3 and final provision 13 of the Institutional Law on the legal protection of minors and Article 216 of the Civil Code, which placed a duty on the public prosecutor to afford abducted minors protection. As regards the provisions of international law, the first applicant referred to Article 11 § 1 of the Convention on the Rights of the Child of 20 November 1989, which imposed a duty on Contracting States to take appropriate measures to combat the illicit non-return of children abroad, and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980. Neither the public prosecutor nor the domestic courts had applied that provision, even though it was directly applicable in domestic law. In that connection, she pointed out that, in accordance with Articles 10 § 2 and 96 § 1 of the Constitution, international treaties that had been ratified by Spain formed part of the domestic legal order. By failing to take the necessary measures under domestic and international law, the national authorities were in breach of their implied positive obligations under Article 8 of the Convention.",
"40. The first applicant stressed the judicial authorities’ failure to act. Thus for instance, the Vigo investigating judge had dismissed all her applications on the ground that he could not disturb people who were not directly implicated in the case, as he was under a duty to protect their private lives. As for the public prosecutor, not only had he declined to take any measures on his own initiative, he had also opposed the measures that had been requested. On learning that her child’s kidnapper had taken a flight to the United States, she had asked the investigating judge to issue an international arrest warrant, but he had refused to do so, on the ground that the alleged facts amounted only to the minor offence of criminal contempt. The public prosecutor had opposed that application. Following the investigating judge’s refusal to issue an international arrest warrant, the first applicant had appealed and the investigating judge had sent a report to the Audiencia Provincial in which he had humiliatingly accused her of suffering from “a bout of jealousy” of her former husband’s family. Faced with that obstructive attitude, she had applied for – and obtained – an order requiring the investigating judge to stand down, on the ground that he was “on very friendly terms” with the kidnapper’s family.",
"41. The first applicant stressed that she had done all she could to persuade the Spanish judicial authorities to take action to secure her son’s return. Unfortunately, all her requests had been turned down by the courts dealing with the case. Neither the investigating judge, nor the Audiencia Provincial, nor the Constitutional Court had acceded to her requests. Her efforts had all been in vain.",
"42. Referring to the Court’s case-law on the subject, the first applicant submitted that the domestic authorities had, through their conduct, infringed their positive obligations under Article 8 of the Convention, riding roughshod over her right to respect for her family life by failing to take adequate and effective measures to afford her redress.",
"2. The Government",
"43. The Government said at the outset that the primary objective in the case had to be the protection of the child’s interest. After explaining the background to the dispute between the child’s parents, the Government said that ultimately, as a result of the action taken by the Spanish judicial authorities, the father had returned to Spain and the child had been reunited with its mother. In that connection, they noted that the first applicant had at that point decided not to take any civil or criminal proceedings against the father. However, after less than three months’ respite, the first applicant had decided to proceed with the charges and had requested the father’s imprisonment. Furthermore, she had gone on to follow the father’s example in failing to comply with the access arrangements which the family court had put in place for the father. That had led to a complaint by the latter of child abduction against the first applicant. While initially it had been the father who had prevented the first applicant from seeing her son for three years, it was now she who had denied him all contact with the child for two years. The Government stressed that the child should not be caught up in the dispute between the parents.",
"44. The Government noted that the proceedings in the Vigo Criminal Court had not ended. The first applicant was seeking a term of twelve years’ imprisonment for the child’s father and substantial compensation for the damage sustained. It was clear that the only issue in the proceedings before the Court was whether the measures taken by the domestic authorities had been adequate and effective to enable the first applicant to secure her son’s return. Contrary to what she had alleged, the public prosecutor had taken immediate action by requesting the commencement of criminal proceedings in connection with the first applicant’s complaint and had instructed the police to trace the child’s father. It had also been the public prosecutor who had applied for access to be suspended in view of the father’s failure to comply with the court orders.",
"45. The Government pointed out the neither the Convention on the Rights of the Child, nor the Hague Convention of 1980 imposed a duty to treat the taking of a child by its father as an offence of abduction. More particularly, the Hague Convention was concerned only with the civil, not the criminal, aspects of international child abduction. Indeed, it would not make sense for a convention dealing with the civil aspects of a case to provide for a person’s detention. As to the comments of investigating judge no. 5 on the first applicant’s conduct, the Government pointed out that they had been made in an internal report from a lower court to a higher court, not in a decision in criminal proceedings. Although they accepted that the judge’s remarks might be considered unfortunate, they said that they could under no circumstances constitute a breach of the first applicant’s right to family life.",
"46. The Government explained that the first applicant’s requests for investigative measures to be taken, such as forensic examination of fingerprints taken from the father’s car, were rejected by the judge in reasoned decisions that had been upheld on appeal. The investigating judge had interviewed the child’s grandparents and paternal uncles and had decided not to issue an international arrest warrant, as it had not been shown that the child’s father was implicated in an offence of extortion. Without evidence of the commission of a serious offence, no international warrant could be issued. The Government stressed that, following the father’s failure to return the child, the judge had taken a series of measures to protect the first applicant’s right to family life. Those many and varied measures had been adequate and effective, as demonstrated by the fact that the child had been returned to the first applicant a year before the present application was communicated to the Government. The measures ordered by the judge were as follows:",
"(a) border checks;",
"(b) a check on purchases made with the father’s credit card, which had led to the discovery on the third day after the child’s removal that a car had been hired in New York and returned in Texas;",
"(c) inquiries into the father’s and child’s movements after their departure from Brussels;",
"(d) tapping the father’s telephones;",
"(e) inquiries regarding the father’s means, which had led to the freezing of his assets. The father had applied to have that order set aside, but the judge had dismissed his application.",
"Ultimately, it was those measures as a whole that had forced the father to return to Spain and hand over the child. Moreover, there had been no requests at that stage for his detention or imprisonment. The first applicant had withdrawn her criminal and civil complaints.",
"B. The Court’s assessment",
"47. The Court notes, firstly, that it is common ground that the relationship between the first applicant and her son came within the sphere of family life under Article 8 of the Convention.",
"48. It must accordingly determine whether there has been a breach of the right of the first applicant and her son to respect for their family life. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary action by public authorities, there are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49).",
"49. As to the State’s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to measures that will enable them to be reunited with their children and an obligation on the national authorities to take such measures (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII).",
"50. However, the national authorities’ obligation to take measures to facilitate reunion is not absolute. The nature and extent of such measures will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Ignaccolo-Zenide, cited above, § 94).",
"51. Lastly, the Court reiterates that the Convention must be applied in accordance with the rules of international law, in particular, those concerning the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI ). With specific regard to the positive obligations that Article 8 of the Convention imposes on the Contracting States with respect to reuniting parents with their children, they must be interpreted in the light of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95).",
"52. The decisive issue in the present case, therefore, is whether the national authorities took all the measures that could reasonably be demanded of them to facilitate the execution of the orders of the domestic courts awarding the first applicant custody of and sole parental responsibility for the child (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58).",
"53. As to the position under domestic law, the Court notes that the national courts were called upon to make decisions, primarily of a civil nature.",
"54. In that regard, the Spanish courts initially granted the first applicant custody and joint parental responsibility. Subsequently, in a decision of 12 February 1999, the Vigo Family Court awarded the first applicant sole parental responsibility, as it took the view that A.U.A.’s repeated failure to comply with court orders regarding access and the child’s removal were very serious and detrimental to the child’s well-being and proper development. In the light of the circumstances of the case, the Court considers that those decisions were consistent with both the first applicant’s and the child’s interests.",
"55. Thus, it is indisputable that under domestic law the courts before which the matter came took various measures that were in accordance with the legislation in force.",
"56. The Court notes, however, that the main issue in the present case is the transfer overseas and illicit non-return of the first applicant’s child. The Court must accordingly examine whether, in the light of their international obligations arising in particular under the Hague Convention, the domestic authorities made adequate and effective efforts to secure compliance with the first applicant’s right to the return of her child and the child’s right to be reunited with its mother (see Ignaccolo-Zenide, cited above, § 95). In that connection, the Court notes that, under Article 96 § 1 of the Constitution, international treaties that have been validly ratified form part of the domestic legal order. Spain has been a Contracting Party to the Hague Convention since 16 June 1987. The United States, the country to which the child was taken by his father, have also ratified it. Furthermore, by virtue of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors, the national authorities are under a duty to guarantee compliance with the rights of minors in accordance with international treaties that have been ratified by Spain.",
"57. The Court notes that right from 4 February 1997, that is to say just a few days after the first applicant’s son was taken by his father, the investigating judge ordered a nationwide search and the child’s immediate return to the first applicant. Furthermore, according to submissions made by the Government at the hearing, as a result of the initial inquiries, it was very quickly established that father and child were in the United States. Articles 3, 7, 12 and 13 of the Hague Convention contain a series of measures designed to secure the immediate return of children who have been wrongfully removed to or retained in another Contracting State. In that connection, the Court notes that under Article 3 of the Hague Convention, the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention. On that point, it is not disputed that the first applicant’s son was taken to the United States and wrongfully retained there by the father. His situation was without doubt covered by that provision of the Hague Convention. Furthermore, Articles 6 and 7 of the Hague Convention require Central Authorities to cooperate with each other and to promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children. In particular, either directly or through any intermediary, they must take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained and secure the return of the child to the parent with custody. To that end, Article 11 of the Hague Convention requires the judicial or administrative authorities of Contracting States to act expeditiously in proceedings for the return of children.",
"58. The Court notes that these measures may be taken by the relevant domestic authorities on their own initiative. Furthermore, Article 158 of the Civil Code as amended by Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors gives the courts power to take of their own motion, inter alia, all appropriate measures to remove the child from danger and to prevent it from coming to harm.",
"59. Once the Spanish judicial authorities had established that the child had been wrongfully removed, the Court considers that the national authorities concerned should have taken appropriate measures as set out in the relevant provisions of the Hague Convention to secure his return to its mother. The authorities did not take any of the measures prescribed in the Hague Convention to facilitate the enforcement of the court orders in favour of the first applicant and her child.",
"60. In view of these findings, the Court considers that the criminal aspect of the proceedings no longer has a significant bearing on the case. In that regard, it observes that some of the first applicant’s requests for various investigative measures to be taken in respect of her former husband and members of his family were refused in decisions that were reasoned and not arbitrary. That being so, and contrary to what has been alleged by the first applicant, the domestic criminal courts cannot be accused of having been totally inactive. In that connection, the Court notes that on 4 February 1997 the investigating judge ordered a nationwide search for A.U.A. and the child’s immediate return to his mother; he also made an interim order freezing A.U.A.’s assets.",
"61. This leaves the question of the domestic courts’ refusal to issue an international search and arrest warrant against A.U.A. In that connection, the Court notes that the reason given by the domestic courts for refusing to issue the warrant was that the act A.U.A. was alleged to have committed, namely leaving with the child, could be classified as criminal contempt, an offence carrying a prison sentence of between six months and one year, and could not form the basis for the issue of an international arrest warrant. In reaching that decision, the domestic courts examined various factual and legal elements they considered relevant to the question. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46). In the present case, however, the Court considers that the problem relates not only to the domestic courts’ interpretation of the relevant statutory provisions in force – indeed, there was nothing to show that their interpretation was unreasonable – but, above all, to the inadequacy of the legislation concerned. On this point, the Court notes that the Spanish legislature found it necessary to reinforce the provisions designed to combat child abduction, particularly as regards the criminal law. In that connection, it observes that the provisions of the Criminal Code governing this area were amended by Institutional Law no. 9/2002 of 10 December 2002, which increased the penalties that could be imposed when the person guilty of taking or refusing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or another person or institution in the child’s interest (see paragraphs 33-36 above).",
"62. Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation in the matter, the Court concludes that the Spanish authorities failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and to the child’s right to be reunited with its mother and thereby breached their right to respect for their family life, as guaranteed by Article 8 of the Convention.",
"63. There has, accordingly, been a violation of that provision.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"64. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. Non-pecuniary damage",
"65. The first applicant sought 250,000 euros (EUR) in compensation for the non-pecuniary damage due to the anxiety and distress she said she and her son had experienced on account of the failure to enforce her parental rights.",
"66. The Government argued that that claim was unjustified and that a finding of a violation would suffice to redress the damage.",
"67. The Court finds that the first applicant has sustained non-pecuniary damage in the light of the circumstances of the case and, ruling on an equitable basis in accordance with Article 41, awards her EUR 20,000 under this head.",
"2. Pecuniary damage",
"68. The first applicant claimed the sum of EUR 18,000 for pecuniary damage. She said that she had suffered a loss of revenue as she had taken a year off from her secondary-school teaching post in order to find her son.",
"69. The Government maintained that the first applicant’s claim was not justified.",
"70. The Court finds that the causal link between the violation it has found and the alleged pecuniary damage is too remote to justify an award of compensation under this head.",
"B. Costs and expenses",
"71. The first applicant sought EUR 17,770 for the costs and expenses incurred in the proceedings before the Court.",
"72. The Government considered that amount excessive and left the issue to the Court’s discretion.",
"73. Like the Government, the Court finds the sum claimed excessive. Having regard to the circumstances of the case, it considers it reasonable to award the first applicant EUR 14,000.",
"C. Default interest",
"74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
42 | Maire v. Portugal | 26 June 2003 | The applicant, a French national, complained of the Portuguese authorities’ inactivity and negligence in failing to enforce decisions of the French courts awarding him custody of his child whom the mother, a Portuguese national, had abducted and taken with her to Portugal. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Portuguese authorities had not made adequate and effective efforts to enforce the applicant’s right to the return of his child. The Court reiterated in particular that in cases of this kind the adequacy of a measure was to be judged by the swiftness of its implementation. Custody proceedings required urgent handling as the passage of time could have irremediable consequences for relations between the child and the parent from whom he or she was separated. Here, the Court accepted that the difficulties in ascertaining the child’s whereabouts had been chiefly due to the conduct of the child’s mother, but considered that the authorities should have taken appropriate measures to punish her lack of cooperation. The lengthy period that had elapsed before the child had been found had created a factual situation that was unfavourable to the applicant, particularly in view of the child’s tender age. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicant was born in 1967 and lives in Larnod (France).",
"11. On 4 September 1993 the applicant married S.C., a Portuguese national. The couple had a child, Julien, born in 1995.",
"A. Proceedings in the French courts",
"12. By a judgment of 19 February 1998, the Besançon tribunal de grande instance granted the couple a divorce based on S.C. ’ s fault and ordered that the child reside at the applicant ’ s home, with the mother to have rights of access. Earlier, on 6 August 1996, the applicant had already been granted interim custody of Julien by a decision of the same court.",
"13. On 3 June 1997 S.C. abducted Julien from his paternal grandmother ’ s home and took him with her to Portugal. The applicant filed a complaint against S.C. for child abduction and assault. By a judgment of the Besançon tribunal de grande instance of 12 June 1998, S.C. was found guilty and sentenced in absentia to one year ’ s imprisonment. A warrant was issued for her arrest.",
"B. Proceedings in the Portuguese courts",
"1. Application for the child ’ s return",
"14. On 5 June 1997, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and on the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983, the applicant lodged an application for the child ’ s return with the French Ministry of Justice, which was the French “ Central Authority ” within the meaning of both instruments. On the same day, the French Central Authority requested the Institute for Social Reinsertion (“ the IRS ” ), which forms part of the Portuguese Ministry of Justice and is the Portuguese Central Authority, to secure the child ’ s return pursuant to the provisions of the Franco-Portuguese convention.",
"15. On 18 June 1997 the IRS referred the application to the prosecution service of the Oeiras judicial district, where the applicant had indicated that S.C. was living. On 16 July 1997 the prosecution service applied to that court for the judicial return ( entrega judicial ) of the child pursuant to section 191 et seq. of the Minors Act ( Organização Tutelar de Menores ) and relying on the above-mentioned Franco-Portuguese cooperation convention.",
"16. On 17 July 1997 the judge of the Third Civil Division of the Oeiras District Court, to which the case had been allocated, summoned the child ’ s mother to appear before the court to make submissions concerning the prosecution ’ s application. Registered letters with acknowledgment of receipt were sent on 17 and 22 July 1997 to the address given by the applicant. However, both letters were returned to the court with the acknowledgments of receipt unsigned and unclaimed. On 27 August 1997 the judge, at the prosecution ’ s request, asked the police to find out where Julien ’ s mother was living. On 10 September and 6 October 1997 respectively the security police and the republican national guard informed the court that S.C. was not living at the stated address.",
"17. On 23 September 1997 the IRS asked the Oeiras District Court for information about the progress of the proceedings. The judge replied on 6 October 1997 to the effect that the child ’ s mother had not yet been found.",
"18. On 21 October 1997 the prosecution service asked the judge to write to the Lisbon social security office to request information concerning S.C. ’ s address and workplace. On 27 October 1997 the judge ordered the registry to send the letter in question, which was sent on 7 November 1997. On 27 November 1997 the social security office replied that it had no record of S.C. on file.",
"19. On 5 December 1997 the judge asked the IRS to find out S.C. ’ s current address. When it was reported that she might be in the Oporto area, the relevant social security office was contacted but indicated in a letter of 12 January 1998 that it had no record of her.",
"20. On 10 March 19 9 8 the Second Civil Division sent the Third Civil Division a copy of the decision taken on that day as part of proceedings for the award of parental responsibility (see paragraph 47 below). On 26 March 1998 the judge sent a copy of the decision to the prosecution service, pointing out that the address from which S.C. had been summoned to appear in those proceedings was the same as that originally given by the applicant.",
"21. On 27 March 1998 the prosecution service asked the judge to seek information from Portugal Electricity and Portugal Telecom. On 13 and 20 May 1998 those companies replied that they did not have any contracts in S.C. ’ s name.",
"22. On 25 May 1998 the judge insisted that S.C. be summoned from the address in question. The registered letter sent for that purpose was however returned to sender.",
"23. On 2 July 1998 S.C. informed the court that she had applied to the Oeiras District Court ( First Civil Division ) for a transfer of parental responsibility for Julien.",
"24. On 6 July 1998 the judge ordered a court bailiff to compel S.C. to appear. The bailiff went to the address in question on 1 September 1998 to be told, by one of S.C. ’ s aunts, that S.C. did not live there. S.C. ’ s aunt also said that she did not know her niece ’ s current address.",
"25. On 2 September 1998 the judge asked the civil identification services of the Ministry of Justice for information about S.C. ’ s whereabouts.",
"26. By a letter of 2 September 1998 the IRS informed the court that they had asked the police to discover S.C. ’ s whereabouts. They observed that the police had since told them that the child ’ s mother had brought proceedings for a transfer of parental responsibility for Julien and pointed out that it was now possible to locate S.C. by the address she had given when she brought those proceedings.",
"27. By an order of 28 September 1998 the judge decided to ask the police again for S.C. ’ s current address. He also asked the registry to inform the First Civil Division of the existence of the application for the child ’ s return with a view to securing a stay of the proceedings for the transfer of parental responsibility then pending before that division.",
"28. On 11 November 1998 the applicant, through his representative, filed an ad litem power of attorney and a request to be kept informed of the steps in the proceedings. He also indicated that he had lodged a criminal complaint against S.C. By a decision of 16 November 1998, the judge rejected the applicant ’ s request on the ground that he was not a party to the proceedings.",
"29. On 27 November 1998 the security police indicated that the address in question was that of S.C. ’ s parents, who claimed that they did not know her current address. On 11 December 1998 the judge again decided to seek information from Portugal Electricity and Portugal Telecom and from the social security offices of Lisbon, Oporto, Coimbra and Faro. Between January and March 1999 all these organisations replied that they had no record of S.C. on their files. On 18 March 1999 the judge again asked the police for information about S.C. ’ s current address. On 9 April 1999 the security police indicated that the address was unknown.",
"30. On 1 9 April 1999 the IRS sent the court a copy of a police report according to which Julien might be found in a flat recently purchased by one of S.C. ’ s sisters in Algueirão (Sintra district ).",
"31. Acting on information supplied by the IRS the applicant travelled to Portugal, where he claimed to have seen his son and a third party in the apartment in question on 25 April 1999. He informed the French consulate general in Lisbon, which asked the Portuguese Ministry of Justice to contact the police and the Oeiras District Court as a matter of urgency in order to secure the child ’ s return. On 26 April 1999 the IRS informed the court and asked it to take all necessary steps to secure the child ’ s return. On 27 April 1999 the judge ordered that Julien be immediately handed over to the IRS and issued a warrant to that effect. On 30 April 1999 the IRS advised the court that the republican national guard had been to the address in question on the previous day. However, the warrant did not give it the power to force entry into the flat and, since Julien ’ s mother had refused to open the door, it had not been possible to return the child.",
"32. The judge subsequently asked the republican national guard why the warrant had not been executed. On 1 June 1999 the national guard stated that officers had been to the address in question several times but no one had answered the door.",
"33. In the meantime, on 17 May 1999, S.C. applied for the proceedings to be discontinued, relying on Article 2 0 of the Franco-Portuguese cooperation convention and submitting that Julien was fully integrated in his new environment.",
"34. The judge delivered his judgment on 15 June 1999. First he found that S.C. should be regarded as having been properly summoned to appear because she had already intervened in the proceedings. He then rejected her application for a discontinuation and ruled that Julien should be handed over immediately to the IRS. Lastly, he ruled that if she failed to comply with the decision S.C. was liable to be prosecuted under section 191(4) of the Minors Act for non-compliance with a legal order ( desobediência ).",
"35. On 25 June 1999 S.C. appealed against that judgment to the Lisbon Court of Appeal ( Tribunal da Relação ). On 29 June 1999 the judge found the appeal admissible and ordered that it should be referred, without suspensive effect, to the Court of Appeal. The Court of Appeal dismissed the appeal by a ruling of 20 January 2000.",
"36. On 7 February 2000 S.C. appealed on points of law to the Supreme Court ( Supremo Tribunal de Justiça ), but on 7 April 2000 her appeal was ruled to have lapsed ( deserto ) for want of pleadings having been filed.",
"37. On 29 May 2000 the Oeiras District Court judge asked a bailiff to warn S.C. that if she failed to hand Julien over to the IRS she would be prosecuted for non-compliance. On 9 June 2000 the bailiff reported that no one seemed to be living at the address indicated. On 20 June 2000 the judge again asked the police for information about S.C. ’ s current address.",
"38. On 14 December 2001 the police found Julien and S.C. On the same day the judge ordered Julien to be placed in a children ’ s home under the IRS ’ s supervision. S.C. was permitted to remain with Julien in the children ’ s home. The principal of the children ’ s home then refused to hand Julien over to the applicant, without a “court order to that effect ”. On that day S.C. lodged a summary application with the Oeiras District Court seeking to prevent Julien being handed over to the applicant. The applicant claimed that he was not told of the outcome of that application. On 21 December 2001 Julien was handed over to S.C. in accordance with the decision of the Cascais Family Court on the same day (see paragraph 50 below).",
"39. On 19 December 2001 the prosecution service asked the judge to suspend the 15 June 1999 judgment, on the ground that, after so much time had elapsed, Julien ought to be examined by child psychiatrists before being handed over to the applicant.",
"40. By a decision of the same day the judge dismissed that request, on the ground that the disputed judgment had already become res judicata.",
"41. On 21 December 2001 the prosecution service appealed to the Lisbon Court of Appeal. By a judgment of 9 April 2002, the Court of Appeal quashed the disputed decision. It considered, among other things, that Julien already seemed well settled in his new environment and that the examinations in question were entirely appropriate.",
"42. On 11 July 2002 the Oeiras District Court judge asked the Lisbon Institute of Forensic Medicine to proceed with the examinations.",
"43. On 4 December 2002 the applicant was advised that Julien would be undergoing a medical examination on 14 February 2003. The applicant has not been informed of the results of those examinations. The proceedings are still pending.",
"2. The applications for determination of parental responsibility",
"(a) In the Oeiras District Court",
"44. In April 1997 the prosecution service applied to the Oeiras District Court for the terms of parental responsibility for Julien to be fixed. The case was allocated to the Second Civil Division of that court.",
"45. S.C. was summoned to appear from the address given by the applicant when he lodged his application for the child ’ s return, which was pending before the Third Civil Division of the Oeiras District Court.",
"46. On an unspecified date the prosecution service asked the judge to stay the proceedings in view of the fact that the application for the child ’ s return had not yet been decided.",
"47. By an order of 10 March 1998 the judge stayed the proceedings.",
"48. Further to the 15 June 1999 ruling by the Oeiras District Court, the judge issued a decision on 5 November 2000 to discontinue the proceedings.",
"(b) In the Cascais Family Court",
"49. On 21 December 2001 the prosecution service lodged a further application for determination of the terms of parental responsibility for Julien at the Cascais Family Court. It sought a variation of the Besançon tribunal de grande instance ’ s judgment of 19 February 1998 on the ground that the child had settled in his new environment. It also asked the court to grant interim custody of Julien to S.C.",
"50. By a decision of the same day the court granted S.C. interim custody of Julien.",
"51. On 15 May 2002 a meeting ( conferência ) was arranged between the parents. Following that meeting, the court decided that the applicant could be granted rights of access. The applicant was thus able to visit Julien at S.C. ’ s home on 17, 18 and 19 May 2002 for a few hours.",
"52. The proceedings are still pending.",
"3. Contact between the French and Portuguese authorities",
"53. The French Central Authority had remained in contact with the IRS throughout all the above-mentioned proceedings. The French embassy in Lisbon and the French consulate general in Lisbon sent several requests to the Portuguese authorities for information on the progress of the case.",
"54. Thus, on 28 March 2000 the French embassy in Lisbon asked the Portuguese Foreign Ministry to intervene in order to “ expedite enforcement of the Oeiras District Court ’ s decision of 15 June 1999 requiring Mrs [ S.C. ] to hand over the child Julien Maire to his father immediately ... pursuant to the Convention on Judicial Cooperation between Portugal and France ... The police must ... now be formally required actively to search for the child ... whose mother ’ s family in Oeiras seem to know where he is because last year he was located in a flat belonging to his aunt in Algueirão”.",
"55. By a letter of 11 June 2001 the consul general informed the applicant as follows :",
"“ ... the Ambassador discussed your case with the director of the [ Portuguese ] Minister of Justice ’ s private office and with the public prosecutor. What emerged from those discussions is that recognition by the Portuguese courts of the French court decision to convict your former wife of a criminal offence is a complex issue and may not be satisfactorily resolved. However, ... the decision of the Portuguese civil courts that the child should be returned to you is final. The Oeiras prosecutor has asked the IRS and the security [ police ] to carry out a search. This search ... has not so far been successful, which is why the Portuguese authorities fear that mother and child may have left Portugal. Our Ambassador was nonetheless advised that the search would continue for as long as there was no proof that they had left the country ... ”"
] | [
"II. RELEVANT INTERNATIONAL AND DOMESTIC LAW",
"A. International law",
"56. Article 11 of the Convention on the Rights of the Child of 20 November 1989, which was ratified by France on 7 August 1990 and by Portugal on 21 September 1990, requires States Parties to “ take measures to combat the illicit transfer and non-return of children abroad ”. For that purpose, States “shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements”.",
"57. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which was ratified by Portugal on 29 September 1983 and by France on 16 September 1982, provide :",
"Article 1",
"“The objects of the present Convention are:",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”",
"Article 2",
"“ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. ”",
"Article 3",
"“The removal or the retention of a child is to be considered wrongful where:",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”",
"The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”",
"Article 6",
"“ A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.",
"... ”",
"Article 7",
"“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.",
"In particular, either directly or through any intermediary, they shall take all appropriate measures:",
"(a) to discover the whereabouts of a child who has been wrongfully removed or retained;",
"(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;",
"(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;",
"(d) to exchange, where desirable, information relating to the social background of the child;",
"(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;",
"(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;",
"(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;",
"(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;",
"(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... ”",
"Article 12",
"“Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"...”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:",
"(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.”",
"58. The relevant provisions of the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983 provide :",
"Article 18 – Right of action",
"“1. Where the voluntary return of the child is refused, Central Authorities shall refer the case without delay, through the intermediary of the court prosecution service, to the appropriate judicial authorities to secure either the enforcement in the requested State of the enforceable decisions taken in the requesting State, or a ruling on the application for the child ’ s return.",
"2. The case may also be referred to the judicial authorities by the interested party.",
"3. Enforcement of decisions shall be sought from the court within whose jurisdiction the minor is located or presumed to be located.”",
"Article 19 – Protective procedure for restoring the status quo",
"“1. The court of the State to or in which the child has been removed or wrongfully retained shall order, as a protective measure, the child ’ s immediate return unless the person who removed or retained the child establishes that :",
"(a) more than one year has elapsed between the removal or retention and the making of an application to the judicial authorities of the State where the child is located; or",
"(b) at the time of the alleged violation the person to whom custody had been awarded before such removal was not exercising his right of custody of the child either effectively or in good faith; or",
"(c) the child ’ s return would seriously jeopardise its health or safety owing to the occurrence of an exceptional event since the award of custody.",
"2. In assessing the circumstances listed above, the judicial authorities of the requested State shall take direct account of the law and judicial decisions of the State where the child is habitually resident. They shall take into consideration the information provided by the Central Authority of the State where the child is habitually resident concerning the legislation on custody in that State and concerning the child ’ s social background.",
"3. A decision on the child ’ s return shall not affect the merits of the custody issue.",
"... ”",
"Article 20 – Variation of custody rights",
"“Where a court in the State to or in which the child has been removed or wrongfully retained finds that one of the exceptions listed in paragraphs 1 (b) or (c) of the preceding Article applies, it may rule on the merits of custody on the expiry of a period of one year after the child ’ s removal or retention provided that the child has settled in its new environment.”",
"B. Domestic law",
"59. Section 191 of the Minors Act adopted by Legislative Decree no. 314/78 of 27 October 1978 provides, inter alia :",
"“ ( 1 ) If the minor has left his parents ’ house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded, an application for his return shall be made to the court with jurisdiction over the area where the minor is located.",
"( 2 ) If proceedings are brought, the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of five days.",
"...",
"( 4 ) If there are no submissions in reply, or if such submissions are manifestly ill - founded, the court shall order the child ’ s return and indicate where it is to take place; the court shall order such return only where it considers it necessary; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms, on penalty of being prosecuted for non-compliance with a legal order.",
"... ”",
"60. Under Article 348 of the Criminal Code, non-compliance with a legal order is punishable by a term of imprisonment of up to one year or by a fine not exceeding 12 0 day -fines.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"61. The applicant complained of failure to act and negligence on the part of the Portuguese authorities in enforcing the judicial decisions awarding him custody of his child.",
"62. The Court considers that this case must be examined under Article 8 of the Convention, which provides :",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Submissions of the parties",
"63. The applicant submitted that the Portuguese authorities had not done all that they could to enforce the decisions of the French courts. He stressed that he had provided all the necessary information at the appropriate time for Julien and his mother to be located, and that they had not been found because of inexplicable negligence on the part of the Oeiras District Court.",
"64. The applicant considered that this situation had detrimentally affected his private life and had been particularly harmful to the child himself who, according to the information on file, had remained for a long time without social security cover and without going to school.",
"65. The Government did not deny that Article 8 applied to the circumstances of the case but considered that there had not been any violation. They submitted that States enjoyed a margin of appreciation which allowed them to select on a case-by-case basis the course of action best designed to meet their positive obligations. The Government maintained that the Portuguese authorities had taken every possible step to ensure compliance with the decisions of the French courts regarding the custody of the child.",
"66. The Government considered that the course of the proceedings showed that the Portuguese authorities – the prosecution service, the courts, and the IRS as the Central Authority – had conducted themselves properly throughout. The difficulties encountered in locating the minor had been due to the mother ’ s lack of cooperation.",
"67. With regard to the events of April 1999, the Government submitted that it would not have been possible for the 27 April 1999 warrant to allow forced entry into the home in question. They observed that such a power could have been conferred only as part of criminal, rather than civil, proceedings. The Government submitted that, in circumstances such as those prevailing at the time, a forced entry by the authorities into the home in question would have surely entitled the owners to counter- allege that their rights under Article 8 of the Convention had been violated.",
"B. The Court ’ s assessment",
"68. The Court notes that it is accepted that the tie between the applicant and his son comes within the scope of family life within the meaning of Article 8 of the Convention. That Article is therefore applicable to the situation of which the applicant complained.",
"69. That being so, what must be determined is whether there has been a failure to respect the applicant ’ s and his son Julien ’ s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49).",
"70. In relation to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to take such measures (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842 /96, § 127, ECHR 2000- VIII).",
"71. However, the national authorities ’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. While national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In a situation where contact between parent and child might jeopardise such interests or infringe such rights, the national authorities are under a duty to ensure that a fair balance is struck between them ( see Ignaccolo-Zenide, cited above, § 94).",
"72. Lastly, the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights ( see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 -XI ). The Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ( see Ignaccolo-Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989.",
"73. What is decisive in this case is whether the Portuguese authorities took all the necessary steps that could reasonably be demanded of them to facilitate the enforcement of the decision of the French courts granting the applicant sole custody of and parental responsibility for his child ( see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58).",
"74. It must be reiterated that in a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with it. The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any failure to act for more than six weeks may give rise to a request for a statement of reasons for the delay.",
"75. On the date of the request transmitted by the French Central Authority to its Portuguese counterpart, 5 June 1997, there is no doubt that Julien had been wrongfully removed. The prosecution service subsequently, about forty days after that date, lodged an application for his judicial return with the Oeiras District Court. That court then made several attempts to discover S.C. ’ s whereabouts, but without success. While no significant delay due to failure to act can be attributed to the authorities in charge of the case during this initial stage in the proceedings, the Court finds it difficult to understand why those authorities were unable to compel S.C. to appear, particularly since she had been located at the address given by the applicant ( see paragraphs 20 and 45 above) in different proceedings brought before another division of the same court. Lastly, the Court notes that the Oeiras District Court finally decided on 15 June 1999 that S.C. had to be regarded as having been properly summoned to appear because she had already intervened in the proceedings on 2 July 1998. An explanation may be in order as to why one whole year had to elapse after the latter date before such a decision was taken. The Government have not given one. Julien was finally located by the police only on 14 December 2001, in other words four years and six months after the request sent by the French Central Authority to the IRS.",
"76. The Court acknowledges that these difficulties are, as submitted by the Government, essentially due to the mother ’ s behaviour. It stresses however that the appropriate authorities should then have imposed adequate sanctions in respect of the mother ’ s lack of cooperation. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the children live. Even if the domestic legal order did not allow for the imposition of effective sanctions, the Court considers that each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it by Article 8 of the Convention and the other international agreements it has chosen to ratify.",
"77. It should not be forgotten that the interests of the child are paramount in such a case, which is why the Portuguese authorities may be right in considering that parental responsibility must now be granted to the mother. In its request of 21 December 2001, the prosecution service gave the integration of the child into his new environment as its reason for seeking a variation of the 19 February 1998 judgment of the Besançon tribunal de grande instance. However, the fact remains that the considerable length of time it took for Julien to be located placed the applicant in an unfavourable position, particularly with the child being so young.",
"78. Having regard to the foregoing, and notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the Portuguese authorities failed to make adequate and effective efforts to enforce the applicant ’ s right to the return of his child and thereby breached his right to respect for his family life as guaranteed by Article 8 of the Convention.",
"79. There has accordingly been a violation of that provision.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"80. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"81. The applicant claimed 45,734.71 euros (EUR) for non-pecuniary damage. The Government considered that amount excessive.",
"82. The Court considers that the applicant effectively sustained non-pecuniary damage which calls for pecuniary compensation. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards him EUR 20, 000 under this head.",
"B. Costs and expenses",
"83. The applicant also claimed the reimbursement of an amount of EUR 14,353.1 7 which he broke down as follows:",
"(a) EUR 3,728.90 for expenses incurred by the applicant himself on travel to Portugal;",
"(b) EUR 10,624.27 for legal fees, including EUR 2,370 in respect of the lawyer who represented him in Strasbourg.",
"84. The Government submitted that only the costs and expenses incurred in the proceedings before the Court could be reimbursed. As to quantum, it left it to the discretion of the Court.",
"85. The Court notes that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction), [GC], no. 31107/96, § 54, ECHR 2000-XI). Moreover, legal costs are only recoverable in so far as they relate to the violation found ( see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 21, § 66).",
"86. The Court considers that the expenses incurred both in Portugal and in Strasbourg to prevent or remedy the situation which the Court has found to be contrary to Article 8 of the Convention were necessarily incurred and should be reimbursed up to a reasonable level. However, the costs incurred in the proceedings in the French courts do not relate directly to the violation found and should not therefore be reimbursed.",
"The Court considers it reasonable to award the applicant EUR 6,100 under this head.",
"C. Default interest",
"87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
43 | Bajrami v. Albania | 12 December 2006 | In 1998 the applicant and his wife separated and his wife moved out with their daughter (born in January 1997) to live with her parents. The applicant only managed to see his daughter once after the separation as his ex-wife and her parents refused to give him access to her. In June 2003 he brought divorce proceedings. At the same time he requested the police to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. Despite that request, in January 2004 the applicant’s wife managed to take her daughter to Greece. The divorce was granted in February 2004 and custody of the child was given to the applicant. This judgment, however, was never enforced. | The Court held that there had been a violation of Article 8 of the Convention. It noted in particular that the custody judgment had remained unenforced for approximately two years for which no blame could be attributed to the applicant, who had regularly taken steps to secure the return of his daughter. Recalling that the European Convention on Human Rights required States to take all necessary measures to secure the reunion of parents with their children in accordance with a final judgment of a domestic court, and irrespective of the non-ratification by Albania of relevant international instruments in that area, the Court found that the Albanian legal system, as it stood, did not provide any alternative framework affording the applicant the practical and effective protection that was required by the State’s positive obligation enshrined in Article 8 of the Convention. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo).",
"5. On 28 April 1993 the applicant married F.M. , an Albanian national. The couple had a child, I.B., who was born on 20 January 1997. In 1998 the applicant and F.M. separated.",
"6. F.M ., together with her daughter, moved to her parents ’ house in Vlora, Albania.",
"7. On 6 May 1999, using forged documents, the applicant ’ s wife married another person without being divorced from the applicant.",
"8. It appears that on 15 September 1999 the Vlora District Court annulled F.M. ’ s second marriage. On an unspecified date she married H.I. , an Albanian national who resided in Greece.",
"9. During the years that followed F.M. ’ s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant ’ s consent.",
"10. F.M. and her parents prohibited the applicant from having contact with his daughter. Since his separation from F.M. , the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003.",
"1. Divorce and custody proceedings",
"11. On 24 June 2003 the applicant brought divorce proceedings before the Vlora District Court.",
"12. On 26 June 2003 the applicant requested the Vlora Police District to block his daughter ’ s passport in view of the fact that his wife was planning to take her to Greece without his consent.",
"13. Despite the applicant ’ s requests to the Vlora Police District, it appears that his wife took the child to Greece on 15 January 2004, using an official certificate in which the applicant ’ s daughter had been registered with the name I.M. , using F.M. ’ s surname.",
"14. The applicant ’ s wife was not present at the hearings. The latter ’ s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee.",
"15. On 4 February 2004 the Vlora District Court decreed the parties ’ divorce. The court granted custody of the child to the applicant, having regard to the wife ’ s lack of interest in the child ’ s life, the instability of her residential arrangements and her long periods of separation from the child.",
"16. On 19 March 2004 the divorce and custody decisions became final.",
"2. Enforcement proceedings",
"17. On 5 April 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court ’ s judgment of 4 February 2004.",
"18. On 13 July 2004 the Vlora Bailiffs ’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania.",
"19. On 15 August 2004 and 13 January 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter.",
"20. On 11 January 2005, when questioned by the bailiffs, F.M. ’ s father declared that F.M. and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to F.M. ’ s home on three occasions between January 2005 and May 2005.",
"21. In May 2005 the Selenice District Police Station informed the bailiffs that F.M. and her daughter were not living in Athens and that F.M. ’ s father had moved to an unknown address in Tirana.",
"22. In July 2005 the Bailiffs ’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece.",
"23. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania ( Avokati i Popullit ) and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision.",
"3. Criminal proceedings for child abduction",
"24. On 14 August 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction.",
"25. On 13 October 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant ’ s daughter.",
"4. Criminal proceedings against A.C.",
"26. On 15 December 2003 the applicant initiated criminal proceedings against A.C., a Civil Status Office employee. He accused her of falsifying various documents that had enabled F.M. to remove I.B. from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter ’ s surname.",
"27. On 26 January 2004 the Vlora District Court decided to discontinue the proceedings.",
"5. Recent developments",
"28. On 22 August 2006 the Government informed the Registry that on 31 March 2006 the Vlora Court of Appeal had repealed the custody judgment of 4 February 200 4 on the grounds that F.M. had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending.",
"29. On 23 August 2006, following the Registry ’ s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome.",
"30. The proceedings had been brought by F.M. ’ s lawyer and held in the applicant ’ s absence."
] | [
"II. RELEVANT INTERNATIONAL AND DOMESTIC LAW",
"A. Relevant international law",
"1. Hague Convention on the Civil Aspects of International Child Abduction",
"31. At present, Albania has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.",
"2. United Nations Convention on the Rights of the Child",
"32. Article 11 of the Convention on the Rights of the Child of 20 November 1989, ratified by Albania on 27 February 1992, requires States Parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, States should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.",
"3. Bilateral Agreement on Mutual Assistance in Civil and Criminal Matters between Greece and Albania",
"33. This Agreement, signed on 17 May 1993, was ratified by Albania pursuant to Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no. 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters.",
"B. Relevant domestic law and practice",
"34. The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis.",
"35. In cases where a parent ’ s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities.",
"36. Failure to abide by a final decision concerning custody of children may be punishable under Article 127 of the Criminal Code.",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTON",
"37. The Government contended that the applicant had not exhausted the domestic remedies at his disposal. They argued that the applicant had failed to raise the issue of the inactivity of the Bailiffs ’ Office with the Vlora District Court in accordance with Article 610 of the Code of Civil Procedure. In the Government ’ s submission, that provision afforded individuals the right to contest actions by the bailiffs before the District Court. Consequently, the applicant had failed to make use of this remedy despite having addressed his claims alleging inactivity on the part of the bailiffs to the Minister of Justice and other authorities.",
"38. The applicant challenged the effectiveness of the remedy referred to by the Government. He argued that a further appeal could not have achieved his principal objective, namely reuniting him with his daughter. He stated that during the two years that followed the custody decision he had made several applications to the authorities. This included the initiation of criminal proceedings for the abduction of the child, and persistent requests to have the judgment speedily enforced in his daughter ’ s interests. Consequently, the applicant submitted that the Government ’ s statements were unsubstantiated.",
"39. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, in particular, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, pp. 1210-11, §§ 65-68).",
"40. The Court notes that the applicant complained that the authorities had failed to take the necessary measures to identify his daughter ’ s whereabouts in order to comply with the custody decision in his favour.",
"41. The applicant obtained a writ for the enforcement of the judgment of 4 February 2004, in accordance with the requirements of domestic civil procedure, but the bailiffs were unable to enforce it since the applicant ’ s daughter was no longer in Albania.",
"42. The Court finds that the Government have failed to substantiate their argument that the remedy referred to is either available or adequate to secure redress for the alleged breaches.",
"43. Furthermore, the Court observes that in a similar case against Albania it found that the Albanian legal system was organised in a manner that did not provide effective remedies against actions by the bailiffs, since the Constitutional Court considered that it lacked jurisdiction to determine claims concerning enforcement proceedings and thus systematically declared them inadmissible ( see Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, § 41, 18 November 2004). In any event, it was for the authorities to ensure the execution of the court decision since it is they who have the necessary legal means and resources to discover the whereabouts of the child and to secure her return. In the circumstances, the applicant could not be expected to make repeated overtures to the bailiffs or to complain about their inactivity to a court in order to have the judgment implemented.",
"44. Thus, the Court concludes that, at the relevant time, the remedies referred to by the Government did not offer reasonable prospects of success to the applicant.",
"45. Accordingly, the Government ’ s preliminary objection must be dismissed.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"46. The applicant complained that the inefficiency of the Albanian authorities in failing to take the necessary measures to reunite him with his daughter in compliance with a final decision had violated his right to respect for family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"47. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"48. The applicant complained that the authorities had neglected to make the efforts that could normally be expected of them to ensure that his rights were respected. He further alleged that the failure of the authorities to involve the Greek authorities in helping to discover the whereabouts of his daughter was based on their assumption that F.M. and her current husband were unlawfully resident in Greece and not on any established facts.",
"49. The Government contested the applicant ’ s arguments. They maintained that, in accordance with the positive obligation enshrined in Article 8 of the Convention, the authorities had taken all possible steps at their disposal to reunite the applicant with his daughter. They observed that approximately 500, 000 Albanian nationals lived in Greece and that half of them resided there illegally. The Government could not therefore be held responsible for the failure of the applicant to give precise details of his daughter ’ s whereabouts and to request an urgent measure to be taken before F.M. left Albania taking the child with her. The Government maintained that since no precise address had been given for the child and her mother in Greece, the use of the instruments foreseen in the bilateral agreement between Albania and Greece had been ineffective (see paragraph 33 above).",
"2. The Court ’ s assessment",
"(a) General principles",
"50. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V; and Sylvester v. Austria, no. 36812/97, 40104/98, § 51, 24 April 2003).",
"51. In relation to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide, cited above, § 94; Iglesias Gil and A.U.I., cited above, § 48; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII).",
"52. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 5 8; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester, cited above, § 59 ).",
"53. In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. The Court notes that Article 11 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (to which Albania is not a State Party) requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see Ignaccolo-Zenide, cited above, § 102).",
"54. The Court has also held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live (see Ignaccolo-Zenide, cited above, § 106).",
"55. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). Consequently, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95).",
"(b) Application of the general principles to the present case",
"56. The Court notes, firstly, that it is common ground that the relationship between the applicant and his daughter falls within the sphere of family life under Article 8 of the Convention.",
"57. The events under consideration in this case, in so far as they give rise to the responsibility of the respondent State, clearly amounted to an interference with the applicant ’ s right to respect for his family life, as the failure to enforce the custody decision impaired his enjoyment of his daughter ’ s company.",
"58. Notwithstanding that according to the latest developments the custody proceedings in question have been reopened and are still pending, the Court can but note that the custody judgment of 4 February 2004 had been valid and remained unenforced for approximately two years. Accordingly the Court must determine whether the national authorities took necessary and adequate steps to facilitate the enforcement of the judgment at issue.",
"59. In the present case the Court observes that the proceedings to enforce the decision in the applicant ’ s favour have been pending since April 2004. It observes at the outset that this situation is not in any way attributable to the applicant, who has approached the national authorities to put an end to it and has regularly taken steps to secure the return of his daughter.",
"60. It was only in April 2005, more than one year after the adoption of the custody decision, that the bailiffs requested the police to transmit information to them about the whereabouts of F.M. and her daughter. While these attempts to enforce the decision all took place within a period of four months in 2005, the same diligence cannot be observed in relation to the crucial period immediately following the custody decision. As noted above, it was not until January 2005 that the bailiffs began to investigate the whereabouts of F.M. It is further to be noted that no steps were taken after May 2005.",
"61. The Court notes that no satisfactory explanation has put forward to justify those delays. Similarly, no explanation has been provided by the Government for the total inactivity of the authorities once they had ascertained that F.M. was living in Greece. It is to be observed in this connection that both the applicant and F.M. ’ s family had informed the authorities, including at the custody hearing, that F.M. was living in Athens as an economic migrant.",
"62. The Court considers that the Government ’ s argument about the illegal status of F.M. in Greece is speculative. The authorities took no steps to try to ascertain the whereabouts of F.M. and her daughter from the Greek authorities, a possibility provided for by the bilateral agreement between the two countries.",
"63. The Government alleged that the failure to enforce the decision in question resulted from the fact that the child was no longer in Albania, a situation which had also been caused in part by the applicant ’ s failure to apply for urgent measures during the custody proceedings.",
"64. However, it appears that the applicant ’ s attempts to inform the authorities of the risk of the child ’ s abduction had gone unheeded. The Court considers that the applicant ’ s omission to request an interim measure cannot be taken to absolve the authorities from their obligations in the matter of execution of judgments, since it is they who exercise public authority and have the means at their disposal to overcome problems in the way of execution. Moreover, the applicant could not be blamed for not having addressed requests to the Greek courts since the bilateral agreement on the matter expressively required the involvement of the Ministries of Justice of both countries for the enforcement of custody judgments in their territory ( see paragraph 33 above ). As noted previously, the Government have not explained to the Court ’ s satisfaction what measures, if any, they took under that agreement to secure the return of the applicant ’ s daughter from Greece or at least to trace the whereabouts of F.M.",
"65. The Court further observes that the wide range of legislative measures that have been implemented by the Albanian Government in order to comply with the rule of law as well as European and international treaties, do not include any effective measure for securing the reunion of parents with their children in a situation such as the applicant ’ s. In particular, there is no specific remedy to prevent or punish cases of abduction of children from the territory of Albania (see paragraphs 34 et seq. above ). At present, Albania is not a State Party to the above-cited Hague Convention and it has not yet implemented the UN Convention on the Rights of the Child of 20 November 1989 (see paragraphs 31 and 32 above ).",
"66. The Court recalls that the European Convention on Human Rights does not impose on States the obligation to ratify international conventions. However, it does require them to take all necessary measures of their choosing to secure the individual ’ s rights guaranteed by Article 8 of the Convention and in particular to secure the reunion of parents with their children in accordance with a final judgment of a domestic court.",
"67. Irrespective of the non-ratification by Albania of relevant international instruments in this area, the Court finds that the Albanian legal system, as it stands, has not provided any alternative framework affording the applicant the practical and effective protection that is required by the State ’ s positive obligation enshrined in Article 8 of the Convention.",
"68. In the circumstances of the instant case, notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Article 8.",
"69. There has accordingly been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"70. The applicant complained that the Albanian authorities failed to comply with a final judgment that granted him custody of his daughter. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”",
"71. The Government contested that argument.",
"72. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.",
"73. The Court reiterates the difference in the nature of the interests protected by Articles 6 and 8 of the Convention. While Article 6 affords a procedural safeguard, namely the “right to a court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see, for instance, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 57, § 91, and Sylvester, cited above, § 76 ).",
"74. However, in the instant case and having regard to the finding relating to Article 8 (see paragraph 69 above), the Court considers that it is not necessary to examine whether in the instant case there has been a violation of Article 6 § 1 (see, among other authorities, Sylvester, cited above, § 77 ).",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"75. The applicant complained under Article 6 § 1 about the authorities ’ failure to initiate criminal proceedings against A.C., who, he alleged, had forged documents that had enabled his former wife to abduct his daughter. Lastly, with reference to the falsification of his daughter ’ s birth certificate, the applicant complained under Articles 12, 13 and 17, without giving due reasons.",
"76. As to the applicant ’ s complaint under Article 6 § 1, the Court reiterates that the right to bring criminal proceedings against private persons is not guaranteed under the Convention (see X v. the Federal Republic of Germany, no. 7116 / 75, Commission decision of 4 October 1976, Decisions and Reports 7, p. 91, and B.Č. v. Slovakia (dec.), no. 11079/02, 14 March 2006 and also Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed in accordance with Article 35 § 4.",
"77. In so far as the applicant complained of a violation of Articles 12, 13 and 17 of the Convention without giving further details, the Court considers the matter to be wholly unsubstantiated. This complaint must therefore be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"78. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"79. The applicant claimed 10, 000 euros (EUR) in respect of pecuniary damage, covering his loss of wages and opportunities, and EUR 15, 000 in respect of non- pecuniary damage for the distress caused as a result of the failure to enforce the decision reuniting him with his daughter.",
"80. The Government contested the applicant ’ s claim since in their view the application was inadmissible. They did not submit any arguments relating to the amounts claimed for pecuniary and non-pecuniary damage.",
"81. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim.",
"82. As to non-pecuniary damage, the Court sees no reason to doubt that the applicant suffered some distress as a result of the non-enforcement of the final judgment at issue and that sufficient just satisfaction would not be provided solely by the finding of a violation.",
"83. Having regard to the sums awarded in comparable cases (see, for instance, Ignaccolo-Zenide, cited above, § 117; Hokkanen, cited above, p. 27, § 77; see also, mutatis mutandis, Elsholz v. Germany [GC], no. 25735/94, § 71, ECHR 2000-VIII, and Kutzner v. Germany, no. 46544/99, § 87, ECHR 20 0 2-I), and making an assessment on an equitable basis as required by Article 41, the Court awards the sum of EUR 15, 000 under this head.",
"B. Costs and expenses",
"84. The applicant also claimed EUR 17, 000 for the costs and expenses incurred before the domestic courts and the Court.",
"85. The Government did not express any view.",
"86. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads.",
"C. Default interest",
"87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
44 | Shaw v. Hungary | 26 July 2011 | After the applicant, an Irish national living in France, and his Hungarian wife divorced in 2005, they were granted joint custody of their then five-year-old daughter. In this case the Court was called upon to examine whether, seen in the light of their international obligations arising in particular under the Council Regulation of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility2 and the Hague Convention of 25 October 1980, the Hungarian authorities had made adequate and effective efforts to secure compliance with the applicant’s right to the return of his child (who had been taken to Hungary by her mother and enrolled there in a school without the applicant’s consent) and the child’s right to be reunited with her father. | The Court held that there had been a violation of Article 8 of the Convention. It observed in particular that almost eleven months had elapsed between the delivery of the enforcement order ordering the child’s return to France and the mother’s disappearance with the daughter. During that time, the only enforcement measures taken were an unsuccessful request for the voluntary return of the child and the imposition of a relatively modest fine. The situation had further been aggravated by the fact that more than three and a half years had passed without the father being able to exercise his access rights. This was essentially due to the fact that the Hungarian authorities had declined jurisdiction in the matter despite the existence of a final court decision that had been certified in accordance with Article 41 of the Council Regulation of 27 November 2003. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in 1953 and lives in Paris.",
"1. Facts giving rise to the present application",
"7. On 21 June 2005 the French first-instance court of Paris pronounced the divorce of the applicant and his wife, Ms K.O., a Hungarian national. It granted the parents joint custody of their daughter, born in October 2000, and placed her with the mother, regulating the applicant’s access rights. At that time, the mother and the child lived in Paris. This decision was upheld by the second-instance French court on 29 November 2006.",
"8. Meanwhile, on 19 September 2005, Ms K.O. filed a criminal complaint against the applicant with the French authorities, alleging that he had sexually abused their child. She further requested the suspension of the applicant’s custody and access rights. However, in the absence of any evidence supporting her allegations, the complaint was dismissed on 2 November 2005.",
"9. On 29 December 2007, the mother took the child to Hungary for the holidays. The applicant was aware of this. However, in a letter dated 5 January 2008 she informed the applicant that she had enrolled their daughter in a Hungarian school without his consent, with no intention to return her to France.",
"2. Proceedings in Hungary to establish the abduction of the child",
"10. On 12 March 2008 the applicant brought an action against the mother before the Hungarian Pest Central District Court. He requested the court to establish the abduction of their child by the mother and to order her to return the child to him, relying on Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“EC Regulation on Recognition of Judgments”) and the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The District Court established that the habitual residence of the child was in France, because she had the centre of her life there. Moreover, it observed that having had joint custody over their daughter, neither parent could have decided on the habitual residence of the child without the approval of the other parent. The District Court ordered a forensic expert examination of the parties and their daughter. The expert report concluded that abuse or indecency against the child had not been probable and therefore there were no reasons to disregard the obligation to order her return based on Article 13 (b) of the Hague Convention. Thus, on 30 May 2008 this court established the abduction of the child and ordered the mother to take her back to France by 6 June 2008, or to hand her over to the applicant in Hungary on 10 June 2008.",
"11. On 2 September 2008 the Budapest Regional Court upheld the District Court’s decision, but established that the time-limit to return the child back to France was 27 September 2008, or 1 October 2008 for handing her over in Hungary. (For the execution of this judgment, see heading 3 below.)",
"12. The mother lodged a petition for review of the final decision with the Supreme Court, which shared the Regional Court’s view that the legal conditions for the child’s continued stay in Hungary were absent. It assessed forensic psychology reports and concluded that the child was still emotionally attached to her father as well, thus her return to France would not cause her serious trauma. On 18 November 2008 the Supreme Court therefore upheld the Regional Court’s decision.",
"3. Enforcement proceedings in Hungary before 29 July 2009 for the return of the child to France",
"13. Following the final judgment delivered by the Regional Court (see paragraph 11 above), the Pest Central District Court ordered the enforcement of the judgment for the return of the child on 15 October 2008.",
"14. On 29 October and 26 November 2008 the bailiff unsuccessfully called on Ms K.O. to comply voluntarily with the court order.",
"15. On 5 December 2008 the bailiff referred the case file to the Heves District Court in order for it to establish the method of enforcement.",
"16. On 17 December 2008 the mother requested the suspension of the enforcement proceedings. The request was dismissed by the Hungarian Heves District Court on 19 December 2008. It further ordered her to pay a fine of 50,000 Hungarian forints (HUF) (approximately 180 euros (EUR)) and warned her to comply with her obligations. It pointed out that the court could not review an enforceable decision. This decision was upheld by the Heves County Regional Court on 12 February 2009.",
"17. Upon the bailiff’s request, the mother’s living conditions were examined by the Guardianship Authority. The attempts to promote the mother’s voluntary compliance with her obligations were without success.",
"18. Moreover, Ms K.O. initiated an action before the Pest Central District Court to have the enforcement proceedings terminated. The District Court dismissed her action on 14 January 2009.",
"19. On 27 April 2009 the Heves County Regional Court ordered the enforcement of the child’s return with police assistance. The decision became final on 18 June 2009.",
"20. On 20 July 2009 the bailiff invited the mother to ensure the child’s return during the on-site proceedings to be effected on 29 July 2009.",
"21. In the meantime, on 31 March 2009 the first-instance court of Paris had issued a European arrest warrant against Ms K.O. for the offence of change of custody of a minor. On 27 July 2009 she was arrested in Hungary.",
"22. On 28 July 2009 the mother was released by the Budapest Regional Court, which refused to enforce the European arrest warrant. It observed that criminal proceedings were pending against Ms K.O. before the Hungarian authorities for the same act (see paragraphs 40–41 below), which rendered the European arrest warrant obsolete.",
"4. Enforcement proceedings in Hungary after 29 July 2009 for the return of the child to France",
"23. On 29 July 2009 the bailiff attempted to hold on-site proceedings, which were unsuccessful as Ms K.O. and her daughter had absconded. The Heves Police Department declared them missing and issued a warrant.",
"24. On 19 October 2009 the bailiff effected on-site proceedings at the primary school of the child and established that the child had not attended the classes during the school year.",
"25. On 28 October 2009 the bailiff attempted to locate the mother and the child in Eger. However, it was recognised that the address given was non-existent. With police assistance, he searched all potential buildings in the neighbourhood, without success.",
"26. Moreover, the police authority carried out regular inspections at the mother’s registered address (on 10, 13, 14, 23 September 2009, 14 January and 18 February 2010) in order to detect potential contact between the mother and her parents.",
"27. On 17 February 2010 the bailiff ordered the stay of the enforcement proceedings as the mother and the child were staying at an unknown location.",
"28. In the spring of 2010, following a request for mutual legal assistance made by the investigating judge of the French appellate court, the authorities gathered information on the mother from telecommunication providers, contacted Ms K.O.’s former employer, the Mayor’s Office of the registered place of her residence, and heard several witnesses.",
"29. The Police Headquarters also monitored the database of the National Health Insurance Fund in order to obtain data as to any potential medical service provided for the mother or the child.",
"30. The child’s school was also being monitored. Exemption from class attendance was granted by the school principal on 23 November 2009. It was established that the child failed to appear at exams scheduled for 4 June and 18 August 2010.",
"31. The Eger Police Headquarters regularly (on 1, 4, 13 September, 15 October 2009, 20 January, 19 February, 19 March, 24 April, 27 May, 22 June and 25 July 2010) checked the public areas and places as well as the mother’s former address in Eger as, according to certain information, the mother is allegedly residing in Eger.",
"32. To date, these measures have not led to locating Ms K.O. or her daughter.",
"5. Enforcement proceedings in Hungary concerning the applicant’s access rights",
"33. On 15 April 2008 the Paris Court of Appeal issued a certificate concerning the applicant’s access rights established by the French decision of 29 November 2006 (see paragraph 7 above) based on Article 41(2) of the EC Regulation on Recognition of Judgments.",
"34. The applicant thereafter requested the Hungarian Eger District Court to enforce his access rights. The case was transferred to the competent guardianship authority on 29 April 2008. The Gyöngyös District Guardianship Authority dismissed his request on 23 May 2008. It established its lack of jurisdiction, relying on Article 10 of the EC Regulation on Recognition of Judgments, as proceedings concerning the child’s abduction were pending before the Pest Central District Court (see paragraph 10 above).",
"35. On 12 January 2009 the Heves County Prosecutor’s Office raised an objection against this decision, finding it unlawful. It relied on Article 41 of the EC Regulation on Recognition of Judgments, arguing that the Guardianship Authority not only had jurisdiction, but also a legal obligation to enforce the applicant’s access rights. It therefore proposed that the Guardianship Authority’s decision be quashed.",
"36. The Gyöngyös District Guardianship Authority did not accept this proposal and submitted it for review to the North-Hungarian Regional Administrative Office, which shared the Guardianship Authority’s opinion establishing lack of jurisdiction. The applicant sought judicial review of this decision before the Heves County Regional Court. On 27 May 2009 the court dismissed the applicant’s action, finding that it would legalise the child’s unlawful retention in Hungary by enforcing his access rights and would be contrary to Article 16 of the Hague Convention.",
"37. The applicant’s access rights have not been respected ever since.",
"6. French decision granting exclusive custody to the applicant",
"38. At the applicant’s request, but in Ms K.O.’s absence, the French first-instance court of Créteil issued a preliminary injunction placing the child with the applicant and granting him exclusive custody rights on 14 April 2008.",
"39. In 2009 the applicant initiated proceedings before the Eger District Court for the recognition of this judgment in Hungary. Following a remittal, the case is currently pending before the Heves Country Regional Court.",
"7. Criminal proceedings against the mother",
"40. On 1 June 2009 the applicant filed a criminal complaint with the Eger District Public Prosecutor’s Office against the mother. Relying on section 195(4) of the Criminal Code, he considered that Ms K.O. was guilty of endangering a minor due to not having complied with a final judgment obliging her to hand over their daughter to him.",
"41. The Heves County Public Prosecutor’s Office dismissed the complaint on 24 June 2009. It considered that the constitutive elements of the crime had not been fully present as the mother should have been fined for not respecting access rights. However, the fine imposed on her (see paragraph 16) served to enforce her obligation to hand over the child to the applicant.",
"42. In the meantime, in the autumn of 2008 the applicant had filed a criminal complaint with the Hungarian authorities for change of custody of a minor, based on section 194 of the Criminal Code. On 29 September 2009 the Heves District Public Prosecutor’s Office ordered investigations. However, finding that no enforceable decision existed concerning exclusive custody of the child, it terminated the investigations on 8 January 2010. The applicant’s appeal was dismissed.",
"8. Further measures requested by the applicant",
"43. On 14 January 2009 the applicant submitted a complaint to the European Commission, claiming a violation of the Regulation (EC) no. 1393/2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“EC Regulation on Service of Documents”), the EC Regulation on Recognition of Judgments and the Charter of Fundamental Rights of the European Union. On 3 November 2009 the Commission issued a letter of formal notice to the Hungarian authorities concerning the possible violation of the EC Regulation on Recognition of Judgments. Reply to the letter of formal notice was submitted by the Minister of Foreign Affairs in December 2009. The proceedings are still pending."
] | [
"II. RELEVANT INTERNATIONAL AND DOMESTIC LAW",
"A. International law",
"1. Relevant provisions of the EC Regulation on Recognition of Judgments",
"44. This Regulation entered into force on 1 March 2005 (with the exception of Denmark) and has direct effect in the Member States of the European Union, including Hungary.",
"Article 1 - Scope",
"“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:",
"...",
"(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.",
"2. The matters referred to in paragraph 1(b) may, in particular, deal with:",
"(a) rights of custody and rights of access”",
"Article 2 - Definitions",
"“For the purposes of this Regulation:",
"11. the term \"wrongful removal or retention\" shall mean a child’s removal or retention where:",
"(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and",
"(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.”",
"Article 10 - Jurisdiction in cases of child abduction",
"“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:",
"(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;",
"or",
"(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:",
"(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;",
"(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);",
"(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);",
"(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”",
"Article 11 - Return of the child",
"“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter \"the 1980 Hague Convention\"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ...",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. ...",
"8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”",
"Article 21 - Recognition of a judgment",
"“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”",
"Article 23 - Grounds of non-recognition for judgments relating to parental responsibility",
"“A judgment relating to parental responsibility shall not be recognised:",
"...",
"(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; ...”",
"Article 40 - Scope",
"“1. This Section shall apply to:",
"(a) rights of access;",
"and",
"(b) the return of a child entailed by a judgment given pursuant to Article 11(8).”",
"Article 41 - Rights of access",
"“1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.",
"Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.”",
"Article 42 - Return of the child",
"“1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.",
"Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.”",
"Article 47 - Enforcement procedure",
"“1. The enforcement procedure is governed by the law of the Member State of enforcement.",
"2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.”",
"Article 60 - Relations with certain multilateral conventions",
"“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:",
"(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”",
"2. Relevant provisions of the Hague Convention",
"45. Hungary acceded to this Convention on 7 April 1986, promulgating it in Law-Decree no. 14 of 1986.",
"Article 12",
"“Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ...”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -",
"...",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”",
"Article 16",
"“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”",
"B. Domestic law",
"Act No. LIII of 1994 on Judicial Enforcement",
"46. According to section 172(1) of the Act, the obligor is first called to voluntarily fulfil his or her obligation within a given deadline. In case of non-compliance, the bailiff immediately submits the case file to the competent court in order to determine the method of enforcement.",
"The possible methods of enforcement are governed by section 174 of the Act and include the possibility to impose a fine up to HUF 500,000 which may be renewed. Moreover, the court may order the enforcement with police assistance. In such cases, the bailiff sets a date for the on-site proceedings and informs the competent guardianship authority, the obligor, the applicant and the police. If the child to be returned cannot be found at his or her place of residence, the bailiff orders a search warrant.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"47. The applicant complained that the Hungarian authorities failed to take timely and adequate measures for him to be reunited with his daughter following her abduction. In his view, this would have been required by Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"48. The Government contested that argument.",
"A. Admissibility",
"49. The Government submitted that the applicant had introduced a complaint to the European Commission on 14 January 2009, claiming a violation of the EC Regulation on Service of Documents, the EC Regulation on the Recognition of Judgments and the Charter of Fundamental Rights of the European Union, as his access rights and custody rights established by the French courts had not been enforced by the Hungarian authorities. The proceedings were pending before the Commission. It was implied in the Government’s observations that this element precluded the examination of the case by the Court, in application of Article 35 § 2 (b) of the Convention which provides as follows:",
"“2. The Court shall not deal with any application submitted under Article 34 that ...",
"(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”",
"50. The applicant did not comment on this issue.",
"51. The Court recalls that it has already held that such individual complaints to the European Commission do not qualify as “another procedure of international investigation or settlement” for the purposes of Article 35 § 2 (b) of the Convention (see Karoussiotis v. Portugal, no. 23205/08, §§ 65–76, 1 February 2011). It follows that this objection must be rejected. Moreover, the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"1. The applicant",
"52. The applicant pointed out, relying on Article 12 of the Hague Convention, that the authorities should have ordered the child’s return without delay. He emphasised the authorities’ duty to act speedily as the passage of time might cause irreparable harm to his family life. However, no swift measures were taken to secure his rights. A period of fourteen months passed from the first-instance judgment ordering the return of the child on 30 May 2008 until the first real action taken by the bailiff on 29 July 2009.",
"53. Moreover, the applicant criticised the domestic courts’ findings establishing lack of jurisdiction to enforce his access rights.",
"54. He expressed his concerns as to the well-being of his daughter, considering that she was taken out of school and not given proper medical care.",
"55. He acknowledged that the mother’s behaviour had contributed to the difficulties of the enforcement. However, in his opinion the authorities had not taken adequate measures to sanction the mother. Relying on reports made by the Hungarian Kék Vonal Child Crisis Foundation and by the US Department of State in 2005, he asserted that Hungary did not allow for the effective solution of such cases.",
"56. In this connection, he raised doubts as to the efficiency of the warrant order as the police had no power to arrest Ms K.O. in the absence of criminal proceedings pending against her. The police might merely request her to identify herself and reveal her place of residence.",
"57. He concluded that the domestic authorities had failed to take all necessary measures to enforce his rights, violating his rights under Article 8 of the Convention.",
"2. The Government",
"58. The Government emphasised the importance of protecting children’s rights, pointing out that removal of a child from her usual environment might have negative effect on her physical and psychological health. The authorities must therefore carefully choose the method of enforcement which is in the best interest of the child.",
"59. Referring to the judgments of Maire v. Portugal (no. 48206/99, ECHR 2003 ‑ VII) and Ignaccolo-Zenide v. Romania (no. 31679/96, ECHR 2000 ‑ I), the Government stressed that the national authorities’ obligation to take measures to facilitate reunion was not absolute. Moreover, they highlighted that coercion in this area must be limited.",
"60. Relying on the aforementioned, the Government were of the opinion that the Hungarian authorities had done everything to ensure the child’s return to her habitual place of residence. They had ordered the child’s return, invited the mother to voluntarily comply with the order, and imposed a fine on her. Following the disappearance of Ms K.O. and her daughter, the authorities had issued warrants and carried out regular checks at public places, border stations, at the mother’s address and the child’s school. Moreover, once a final judgment recognised the validity of the French judgment granting exclusive custody to the applicant, the police might initiate criminal proceedings for the offence of endangering a minor and gather information covertly.",
"61. They maintained that the Hungarian legal system afforded prompt and efficient means to ensure the enforcement of such decisions. However, objective circumstances, such as the absconding of the mother and the child to an unknown location, might occur which temporarily prevented the authorities from taking further measures. Such events could not be imputed to the authorities. Therefore, the Government were of the opinion that the applicant’s rights under Article 8 had not been violated.",
"62. Finally, concerning the enforcement of the applicant’s access rights, the Government shared the domestic authorities’ opinion establishing lack of jurisdiction. Moreover, they pointed out that proceedings for the recognition of the French judgment were pending. In sum, the Government concluded that the domestic authorities had acted in compliance with the law.",
"2. The Court’s assessment",
"1. General principles",
"63. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).",
"64. In relation to the State’s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent’s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide v. Romania, cited above, § 94, ECHR 2000 ‑ I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003 ‑ V).",
"65. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonable be demanded in the special circumstances of each case (see Hokkanen v. Finland, 23 September 1994, § 53, Series A no. 299 ‑ A; Ignaccolo-Zenide, cited above, §96; Nuutinen v. Finland, cited above, §128, and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003).",
"66. The Court reiterates that in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her (see Ignaccolo-Zenide, cited above, § 102). The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children and any failure to act for more than six weeks may give rise to a request for explanations ( Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 140, ECHR 2010 ‑ ...). In proceedings under the EC Regulation on Recognition of Judgments this is likewise so, as Article 11 § 3 requires the judicial authorities concerned to act expeditiously, using the most prompt procedures available in domestic law, and issue a judgment no later than six weeks after the application is lodged.",
"67. The Court also held that although coercive measures against the children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live (see Ignaccolo-Zenide, cited above, § 106).",
"68. Lastly, the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001 ‑ II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). Consequently, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted, in the present case, in the light of the Hague Convention and the EC Regulation on the Recognition of Judgments (see Ignaccolo-Zenide, cited above, § 95).",
"2. Application of the above principles to the present case",
"69. The Court notes, firstly, that it is common ground that the relationship between the applicants comes within the sphere of family life under Article 8 of the Convention.",
"70. The main issue in the present case is the transfer abroad and illicit non-return of the applicant’s child. The Court must accordingly examine whether, seen in the light of their international obligations arising in particular under the EC Regulation on the Recognition of Judgments and the Hague Convention, the domestic authorities made adequate and effective efforts to secure compliance with the applicant’s right to the return of his child and the child’s right to be reunited with her father (see Ignaccolo-Zenide, cited above, § 95).",
"71. In proceedings related to the return of a child, Article 11 § 3 of the EC Regulation on the Recognition of Judgments sets a clear obligation on the domestic courts to issue a judgment within six weeks after the application is lodged, unless exceptional circumstances arise. The Court points out that following the applicant’s submission of a claim to the Pest Central District Court on 12 March 2008, the first-instance judgment was delivered only after seven weeks, on 30 May 2008. A further thirteen weeks passed until the adoption of the second-instance judgment of 2 September 2008. The Supreme Court’s judgment was issued eleven weeks thereafter, on 18 November 2008.",
"72. It is to be noted that the reason for the delay between the first- and the second-instance decision could partially be due to the five-week court vacation between 14 July and 12 August 2008. However, if the six-week time-limit had been observed, the Regional Court should have delivered judgment before the court vacation, that is, no later than 11 July 2008. Moreover, such cases should be classified as urgent, requiring treatment even during the court vacation. No reasons were given as to the further delays in the proceedings and there were no exceptional circumstances which would justify them. The domestic courts thus failed to act expeditiously in the proceedings to return the child, manifestly in breach of the applicable law. The Court finds that these delays in the procedure alone enable it to conclude that the Hungarian authorities had not complied with their positive obligations under the Convention.",
"73. Further to this, and notwithstanding the authorities’ efforts to locate the mother and the child following their disappearance (see paragraphs 23 to 32 above), the Court finds that those authorities failed to take adequate and effective measures for the enforcement of the return order prior to 29 July 2009. Almost eleven months passed between the delivery of the enforceable final judgment ordering the return of the child on 2 September 2008 and the disappearance of the mother and her daughter on 29 July 2009. Within this period, the only enforcement measures taken were the unsuccessful requests of the bailiff to voluntarily return the child, and the imposition of a relatively small amount of fine on one occasion. The other measures at the authorities’ disposal were left unused, including the possibility of police assistance and the repeated imposition of fines. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by one of the parents.",
"74. In addition, the Court observes that even though Ms K.O. was arrested on 27 July 2009, no steps were taken by the authorities to execute the return order of the child that day, despite the enforceable final order to do so. It is true that the date set for the on-site proceedings for the return of the child was scheduled only for 29 July 2009. However, the Court points out that the domestic court decision as to the method of enforcement was already final on 18 June 2009. It finds no reasons justifying the period of more than one month between these two dates in light of the requirement of expeditious action by the authorities.",
"75. Concerning the Government’s argument that the removal of the child from her usual environment might have negative effects on her well-being (see paragraph 58 above), the Court refers to the judgment of the Supreme Court delivered on 18 November 2008 (see paragraph 12 above). According to forensic psychology reports, at that time the child still had emotional ties to her father and would have adapted easily to moving back to France. However, the Court acknowledges that the passage of time may change the circumstances – which may call for an eventual re-assessment of her ties to her parents and their environments respectively. When enforcing the child’s return, the guarantees set forth in Article 8 of the Convention shall apply in a manner subject to the child’s best interests. Guidance on this point may be found, mutatis mutandis, in the Court’s case-law on the expulsion of aliens (see, Maslov v. Austria [GC], no. 1638/03, § 71, 23 June 2008, and Emre v. Switzerland, no. 42034/04, § 68, 22 May 2008), according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being, and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination (see Neulinger and Shuruk, cited above, §§ 145–146, ECHR 2010 ‑ ...; Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006 ‑ XII).",
"76. Lastly, in the Court’s view, the impugned situation was aggravated by the fact that more than three and a half years passed without the father being able to exercise his access rights. This was essentially due to the fact that the Hungarian authorities established lack of jurisdiction in the matter despite the existence of a final court decision, certified in accordance with Article 41 of the EC Regulation on Recognition of Judgments (see paragraphs 33 to 37 above).",
"77. Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation in the matter, the Court concludes that the Hungarian authorities failed to fulfil their positive obligations.",
"78. There has consequently been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"79. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"80. The applicant claimed EUR 40,215 in respect of pecuniary damage, as he had been forced to take a year of sabbatical from his workplace in order to be able to take action for the return of his daughter. Moreover, due to the authorities’ unsatisfactory action, he had had to hire private detectives to establish the location of his daughter.",
"81. In addition, he claimed EUR 50,000 euros in respect of non-pecuniary damage suffered as a consequence of the Hungarian authorities’ inability to enforce his access and custody rights. He highlighted the emotional anguish occasioned by his daughter’s abduction and his subsequent efforts to be reunited with her.",
"82. The Government found the claims to be excessive.",
"83. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, inter alia, Aktaş v. Turkey, no. 24351/94, § 352, ECHR 2003 ‑ V (extracts)). With regard to the pecuniary damage claimed by the applicant, the Court finds that there is no causal link between the damage claimed and the violation found. It therefore dismisses this claim.",
"84. As regards non-pecuniary damage, the Court has found that the Hungarian authorities failed to take adequate measures to facilitate reunification of the applicant with his daughter (see paragraphs 69 to 80 above). It considers that the applicant must be regarded as having suffered anguish and distress as a result of the abduction of his daughter and the insufficient measures taken by the Hungarian authorities. Ruling on an equitable basis, the Court awards him the sum of EUR 20,000 under this head.",
"B. Costs and expenses",
"85. The applicant also claimed altogether EUR 99,526 for the costs and expenses incurred through his efforts to recover his daughter. From his voluminous and arithmetically inconsistent submissions, the following items belonging under this head could be deciphered: EUR 6,297 as travel costs, EUR 56,381 as legal fees billed by his lawyers for his representation before the domestic courts and the Court, and EUR 6,653 as translation and clerical costs.",
"86. The Government found the claim to be excessive.",
"87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 12,000 covering costs under all heads, having regard to the fact that the violation found relates to only part of the procedures initiated by the applicant, namely, the execution of the Pest Central District Court’s judgment (see paragraphs 13 to 32 above).",
"C. Default interest",
"88. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
45 | Karrer v. Romania | 21 February 2012 | This case concerned a complaint by a father and his daughter (born in 2006) about proceedings before the Romanian courts under the Hague Convention of 25 October 1980 for her return to Austria. In February 2008 the child’s mother had applied in Austria for divorce from the first applicant. A few months later, both the child and her mother had left Austria for Romania while the custody proceedings in respect of the child were still pending. The applicant had then requested the return of his daughter to Austria claiming that she had been removed unlawfully. In a final judgment of July 2009, the Romanian courts had found that the child’s return to Austria would expose her to physical and psychological harm. | The Court held that there had been a violation of Article 8 of the Convention, finding in particular that the Romanian courts had not carried out an in-depth analysis to assess the child’s best interests and had not given the first applicant the opportunity to present his case in an expeditious manner, as required by the European Convention on Human Rights, interpreted in the light of the Hague Convention of 25 October 1980. Further, as to the fairness of the decision-making process, the first applicant had never been afforded the opportunity to present his case before the Romanian courts either directly or through written submissions. Finally, the Court observed, the Hague Convention proceedings had lasted a total of eleven months before two levels of jurisdiction, notwithstanding that such proceedings should have been terminated within six weeks. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The first applicant was born in 1982 and lives in Furstenfeld, Austria. He is the father of the second applicant, who was born in 2006 and lives at an unspecified address in Romania.",
"A. Abduction of the second applicant and proceedings conducted in Austria",
"7. On 13 April 2004 the first applicant married a Romanian citizen, K.T. The marriage was concluded in Salzburg, Austria. On 15 February 2006 their daughter, the second applicant, was born. The parents had joint custody of the child under Austrian law. They lived in Salzburg.",
"8. On 1 February 2008 K.T. and the first applicant separated. On 25 February 2008 K.T. filed a divorce petition with the Salzburg authorities. The first applicant lodged a counter petition on 25 March 2008.",
"9. On 29 January 2008 K.T. filed for an interim injunction against the first applicant, seeking his removal from the family home on the ground of his violent behaviour. On 8 February 2008, the Salzburg District Civil Court granted the interim injunction for a period of three months. Criminal proceedings were also initiated against the first applicant for infliction of bodily harm.",
"10. On 1 February 2008 K.T. lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings. At the end of September 2008, while the proceedings for the award of custody were pending before the Austrian courts, K.T. left for Romania together with the second applicant. The first applicant was not informed of the departure, even though at the time the spouses had joint custody of the second applicant.",
"11. In the meantime, on 25 July 2008 the Salzburg District Criminal Court acquitted the first applicant of inflicting bodily harm. The Salzburg Public Prosecutor reserved the right to initiate criminal proceedings against K.T. for perjury.",
"12. On 25 November 2008, the Salzburg District Civil Court granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings. The court relied, inter alia, on expert opinion which concluded that the first applicant was better suited to have custody. K.T. does not appear to have appealed against the judgment.",
"13. Currently, the divorce proceedings between the first applicant and K.T. are pending before the Romanian courts.",
"B. Proceedings under the Hague Convention conducted in Romania",
"14. On 30 September 2008 the first applicant submitted a request for the return of the second applicant to Austria under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He argued that the second applicant had been removed from Austrian territory in breach of the joint custody held by the spouses at the time of the removal. On 7 October 2008 the Austrian authorities submitted the request to the Romanian Ministry of Justice (“the Romanian Ministry”), the Central Authority responsible for the obligations established under the Hague Convention.",
"15. On 28 October 2008, at the request of the Romanian Ministry, the General Police Department ( Inspectoratul General al Poliţiei ) confirmed that the second applicant was living with her mother, in Romania, at her grandparents’ home. Furthermore, on 3 November 2008 the Department for Social Services and Child Protection ( Departamentul General de Asistenţă Socială şi Protecţia Copilului) drafted a report in relation to the second applicant. The report mainly mentioned K.T.’s statements concerning her situation in Austria, her reasons for departure as well as the maternal grandparents’ declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely. It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents. The report concluded that the second applicant had appropriate living conditions, both from a material and emotional point of view.",
"16. On 5 December 2008 the Romanian Ministry instituted proceedings on behalf of the first applicant before the Bucharest County Court. By a judgment of 28 January 2009, communicated on 28 May 2009, the Bucharest County Court found in favour of the first applicant, ordering the return of the second applicant to Austria. The Bucharest County Court held that the request fell under Article 3 of the Hague Convention and that none of the exceptions provided for under Article 13 applied.",
"17. K.T. appealed. She submitted several pieces of evidence, including declarations of her parents as witnesses given before a Romanian Court in the context of the divorce and custody proceedings. She further submitted a welfare report drafted by the Custody Service within the Timişoara City Hall (Serviciul de Autoritate Tutelară din cadrul Primariei Municipiului Timişoara ). The report included information on K.T.’s family situation, living conditions, and K.T.’s declarations in relation to the circumstances of her living and departing from Austria. Finally, the report recommended that K.T. were awarded the custody over the second applicant.",
"18. By a final judgment delivered on 8 July 2009, and rendered in written form on 17 September 2009, the Bucharest Court of Appeal allowed the appeal on points of law, holding that the return of the second applicant to Austria would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. On the merits, the Bucharest Court of Appeal held that the first applicant had shown violent behaviour towards K.T., as the Salzburg District Civil Court had maintained when granting K.T. the interim injunction of 8 February 2008. The Bucharest Court of Appeal further held that the first applicant had breached the restraining order in September 2008, which determined K.T. to come to Romania. Finally, the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child, this could be inferred from his behaviour towards K.T. and from K.T.’s departure to Romania. The Salzburg District Civil Court’s judgment of 25 November 2008 was set aside on the ground that by that time K.T. and the second applicant had already left Austria.",
"19. Throughout the domestic proceedings, the Romanian Ministry informed the Austrian authorities of the progress of the Hague Convention proceedings. The information included the date of the hearings and whether or not an appeal had been lodged. From the evidence adduced to the case file, it appears that the Romanian Ministry did not have any direct contact with the first applicant in connection with the Hague Convention proceedings."
] | [
"II. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW",
"20. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows.",
"Article 3",
"“The removal or the retention of a child is to be considered wrongful where –",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”",
"Article 4",
"“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”",
"Article 6",
"“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]”",
"Article 7",
"“Central Authorities shall co-operate with each other and promote co ‑ operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.",
"In particular, either directly or through any intermediary, they shall take all appropriate measures –",
"[..]",
"f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”",
"Article 12",
"“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”",
"Article 20",
"“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”",
"21. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”), in so far as relevant reads as follows:",
"Preamble",
"(17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]”",
"Article 11",
"“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.",
"[...]",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.",
"4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [...] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.",
"5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.",
"6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.",
"7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..]”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION",
"22. The applicants complained under Article 8 about the unfolding of Hague Convention proceedings, in particular that the requirement of expedition had not been observed by the domestic courts, that the first applicant had not been heard by the Romanian courts and that the Romanian Ministry in its capacity as Central Authority under the Hague Convention had not properly represented the applicants’ interests.",
"23. The applicants also complained under Article 6 § 1 that the proceedings had been lengthy and that the Romanian courts had delivered their judgments without hearing the first applicant.",
"24. In so far as relevant, Articles 8 and 6 § 1 provide as follows:",
"Article 8",
"“1. Everyone has the right to respect for his ... family life....",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 6",
"“In the determination of ... his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal established by law.”",
"25. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). The Court further notes that it has previously held that the procedural safeguards guaranteed under Article 6 § 1 are encompassed by the overall requirements of ensuring respect for family life under Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, Diamante and Pelliccioni v. San Marino, no. 32250/08, § 150, 27 September 2011).",
"26. In view of the close link between the complaints under Articles 6 § 1 and 8, the Court shall examine the application solely under Article 8, which also covers the complaints under Article 6 § 1.",
"A. Admissibility",
"27. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"28. The applicants contended that the proceedings in Romania had resulted in an interference with their rights to respect for family life. In particular, the applicants argued that the hearings and the drafting of the Romanian courts’ judgments had taken an excessive length of time, in breach of the Hague Convention. The Bucharest County Court had postponed the enforcement of its judgement for three months and the written version of that judgment was rendered three months after its delivery, leaving the applicants unable to appeal during this period. The overall length of the proceedings had thus largely exceeded the six weeks provided for under the Hague Convention and the Regulation.",
"29. The applicants further maintained that the Bucharest Court of Appeal had based its findings on an interim injunction which was no longer in force. Also, at the time of the Bucharest Court of Appeal’s judgment the Austrian courts had granted the first applicant sole custody of the second applicant, based on a psychological assessment which established that the first applicant did not have aggressive behaviour.",
"30. The first applicant also submitted that the Romanian authorities had not abided by the provisions of Article 11 § 5 of the Regulation in that he had not been heard (see paragraph 19 above). Had he been heard, he would have been able to prove that the allegations as to his aggressive behaviour were unfounded.",
"31. Lastly, the applicants submitted that the Romanian authorities had not abided by the provisions of Article 11 § 3 of the Regulation in that the written version of the judgment of the Bucharest Court of Appeal had only been rendered on 17 September 2009 and served on him, by fax, on 30 September 2009.",
"(b) The Government",
"32. The Government submitted that the decision rendered by the Bucharest Court of Appeal did not constitute an interference with the applicants’ right to respect for family life. In this connection, the Government pointed out that at the time of the second applicant’s removal, the first applicant had not had sole custody rights and the two spouses had not lived together since 23 January 2008, when a restraining order was issued against the first applicant. Furthermore, the Government pointed out that the first applicant had breached the restraining order.",
"33. Should the Court find that there had been an interference with the applicants’ rights under Article 8, the Government submitted that the interference had had a legal basis, namely Article 13 (b) of the Hague Convention. Also, the interference had served the legitimate aim of protecting the child’s best interests.",
"34. The Government stressed that the domestic courts were better placed to decide on custody matters and that they therefore had a wide margin of appreciation. In the present case, the domestic courts relied on evidence adduced in the case, including witnesses’ testimonies, a welfare report and an official report by the Department for Social Services and Child Protection.",
"35. The Government also pointed out that under the Regulation it had been open to the domestic courts to summon the first applicant but they had not been under an obligation to do so. Moreover, the Romanian Ministry – in its capacity as Central Authority under the Hague Convention – had informed the first applicant of all the relevant procedural steps and given him the opportunity to submit comments thereto. He could have been present at the hearings and asked to be heard; however, he had not availed himself of this opportunity.",
"36. The Government lastly submitted that the period of six weeks set forth under the Hague Convention for deciding custody matters was a recommendation rather than an obligation imposed on the domestic authorities. The domestic courts had decided the case with sufficient expedition, taking into account the significant workload and the lack of sufficient staff.",
"2. The Court’s assessment",
"37. The Court first notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006).",
"38. In the sensitive area of family relations, the State is not only bound to refrain from taking measures which would hinder the effective enjoyment of family life, but, depending on the circumstances of each case, should take positive action in order to ensure the effective exercise of such rights. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order ‑ was struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child’s best interests must be the primary consideration (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX).",
"39. Notwithstanding the State’s margin of appreciation, the Court is called to examine whether the decision-making process leading to an interference was fair and afforded due respect to the interests safeguarded by Article 8 (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I, with further references, Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV).",
"40. To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, 6 July 2010, with further references).",
"41. Furthermore, the Court reiterates that the States’ obligations under Article 8 of the Convention are to be interpreted in harmony with the general principles of international law, and, in the area of international child abduction, particular account is to be given to the provisions of the Hague Convention (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, Ignaccolo-Zenide, cited above, § 95).",
"42. In the instant case, while holding that the removal of the second applicant from her habitual residence in Austria was wrongful within the meaning of Article 3 of the Hague Convention, the domestic courts dismissed the first applicant’s request for the return of his daughter on the ground that the return would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. The Court finds that such measure constituted an interference with the applicants’ right to respect for family life (see also Iosub Caras, cited above, § 30).",
"43. The Court accepts the Government’s submissions that the interference was provided for by law, namely Article 13 § 1 (b) of the Hague Convention and pursued the legitimate aim of protecting the child’s best interests.",
"44. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above ‑ mentioned international instruments, and whether when striking the balance between the competing interests at stake, appropriate account was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters.",
"45. The Court is bound to observe that the domestic court’s assessment of the child’s best interest was based on an expired interim injunction issued in Austria (see paragraph 9 above). Furthermore, there is no evidence in the case file of a renewal of such interim injunction, therefore the Court has doubts regarding the reference to the breach of the restraining order in September 2008, which allegedly determined K.T’s departure to Romania (see paragraph 18 above). Moreover, the Salzburg District Court judgment of 25 November 2008 awarding sole custody to the first applicant was set aside on the sole ground that it was delivered after K.T had left for Romania.",
"46. Furthermore, in assessing the child’s best interests the Bucharest Court of Appeal did not make any reference to her current family situation or to other elements of a psychological, emotional, material or medical nature. No reference was made to the weight attached, if any, to the report drafted by the Department for Social Services and Child Protection. In any event, this report did not assess the implications of the second applicant’s return to Austria, or whether appropriate arrangements were in place to secure her protection upon return. The Court also notes that the domestic authorities did not take into consideration the expert report drafted in Austria and mentioned in the judgment of 25 November 2008 (see paragraph 12 above). The Court finds that these factors, taken together, cast doubts as to the level of depths of the domestic court’s assessment of the child’s best interests (see Šneersone and Kampanella v. Italy, no. 14737/09, § 95, 12 July 2011).",
"47. The Government further submitted that, in assessing the child’s best interests the domestic courts relied on witness testimonies and a welfare report. The Court notes that the witnesses’ testimonies only consisted of declarations of K.T. and her parents (see paragraph 17 above). Moreover, the welfare report was produced before the Romanian courts in the context of the divorce and custody proceedings and mainly restated K.T.’s allegations concerning the first applicant’s behaviour in Austria and the reasons for her departure. No attempt appears to have been made to contact the first applicant in order to hear his position on the matter. Similarly to the report drafted by the Department for Social Services and Child Protection, there was no analysis of the implications of a possible return of the second applicant to Austria.",
"48. In these circumstances the Court cannot but observe that the analysis conducted by the domestic authorities in order to determine the child’s best interests was not sufficiently thorough.",
"49. The Court will now turn to examine the fairness of the decision ‑ making process in connection with the participation of the first applicant in the domestic proceedings and the speediness of review.",
"50. The Government argued that the first applicant had not been prevented from participating in the hearings and making submissions. In this respect, the Court reiterates that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, among other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a \"fair hearing\" are met ( Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).",
"51. In the instant case, Court finds that accepting the Government’s argument whereby it was incumbent on the first applicant to inquire on the status of the request for return without any obligation on the part of the domestic authorities to undertake any action, would result in a disadvantageous situation for such applicant thus undermining the principle of fair proceedings.",
"52. The Court further notes that the Romanian Ministry submitted regular updates on the status of the domestic proceedings to their Austrian counterpart (see paragraph 19 above). The Court agrees with the Government that providing such information formed part of the Romanian Ministry’s obligations under the Hague Convention. However, the Court notes that neither was the applicant heard by the domestic courts nor did he present written submissions in the domestic proceedings.",
"53. When examining the overall decision-making process the Court cannot disregard the fact that the file before the domestic courts contained controversial pieces of evidence. The Court finds that giving the first applicant the opportunity to present his case either directly or through written submissions was of paramount importance for ensuring the fairness of the decision-making process.",
"54. In relation to the speediness of review, the Court reiterates that in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Iosub Caras, cited above, § 38). Even if the Court were to accept the Government’s argument whereby the six-week time-limit set forth under the Hague Convention is not to be interpreted strictly, it cannot fail but notice that this time ‑ limit was largely exceeded as the Hague Convention proceedings lasted a total of eleven months before the first-instance and the instance of appeal. Moreover, the Court notes that the Council Regulation No. 2201/2003 permits non ‑ compliance with the six-week rule only in exceptional circumstances (see paragraph 21 above). No satisfactory explanation was put forward by the Government for this delay.",
"55. In conclusion, and in the light of the foregoing considerations the Court finds that the decision-making process at domestic level was flawed as on the one hand no in-depth analysis was conducted with a view to assessing the child’s best interests and on the other hand the first applicant was not given the opportunity to present his case in an expeditious manner as required under Article 8 of the Convention interpreted in the light of the Hague Convention and the Regulation.",
"There has accordingly been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"56. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. Pecuniary damage",
"57. The first applicant claimed 185,759.28 euros (EUR) in respect of pecuniary damage resulting from past, present and future loss of income as he had become ill from the stress associated with the abduction of his daughter.",
"58. The Government submitted that the first applicant’s claims were speculative and did not have a direct connection with the possible finding of a violation of Article 8 of the Convention.",
"59. The Court finds that the causal link between the violation found and the alleged pecuniary damage is too remote to justify an award of compensation under this head.",
"2. Non-pecuniary damage",
"60. The first applicant sought EUR 40,000 on his own behalf and EUR 60,000 on behalf of the second applicant in compensation for non ‑ pecuniary damage suffered due to the anxiety and distress he and his daughter had experienced on account of the domestic courts’ failure to promptly order the return of the second applicant to Austria.",
"61. The Government submitted that the amounts claimed were unjustified and excessive, inviting the Court to rule that the finding of a violation would provide sufficient just satisfaction for any non ‑ pecuniary damage the applicants may have suffered.",
"62. The Court considers that the applicants must have suffered distress as a result of the impossibility to enjoy each other’s company. It considers that, in so far as the first applicant is concerned, sufficient just satisfaction would not be provided solely by a finding of a violation. In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the first applicant EUR 10,000 under this head.",
"As to the second applicant, the Court considers that the finding of a violation provides sufficient just satisfaction for any non ‑ pecuniary damage she may have suffered as a result of the violation of her Article 8 rights (see Sylvester, cited above, § 80).",
"B. Costs and expenses",
"63. The first applicant also claimed EUR 15,172.04 for the costs and expenses incurred before the domestic courts and the Court, namely (i) EUR 11,160 in lawyer’s fees incurred in Austria in connection with the Hague Convention proceedings; (ii) EUR 1,500 in lawyer’s fees incurred in Romania in connection with the Hague Convention proceedings; (iii) EUR 553 for expenses before the Court and (iv) EUR 1,959.04 for mobile phone expenses incurred in connection with his attempts to retrieve his daughter.",
"64. The Government disputed the claims, arguing that the first applicant had not submitted the relevant documents in support of his claim and that the requirements of Rule 60 of the Rules of Court had not been met.",
"65. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In relation to the costs incurred in the proceedings before the Court, the first applicant submitted a bank statement certifying payments made to his lawyer’s bank account amounting to 1591.06 Romanian lei (representing the equivalent of around EUR 393) and an invoice for 687.15 Romanian lei (representing the equivalent of around EUR 160) for English translations of the correspondence with the Court. In the absence of any other documents, the Court finds that the first applicant has only justified the translation expenses and awards him the amount of EUR 160 for the proceedings before the Court.",
"C. Default interest",
"66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
46 | López Guió v. Slovakia | 3 June 2014 | In May 2009 the applicant had a child with a Slovak national. They lived together in Spain until July 2010, when the mother took the child from Spain to Slovakia, without ever returning. Subsequent to her departure, he initiated proceedings in Slovakia against the mother for an order for the child’s return to Spain under the Hague Convention of 25 October 1980. The applicant complained that these proceedings had been arbitrarily interfered with by a judgment of the Constitutional Court of Slovakia, and that, as a result, he has been deprived of contact with his child for a protracted period of time. | The Court held that there had been a violation of Article 8 of the Convention. It observed that the applicant had had no standing in the proceedings before the Constitutional Court which lead to the quashing of a final and enforceable order previously issued by the ordinary courts for the return of his child to Spain. He had not been informed of the constitutional proceedings, let alone been able to participate in them, despite having a legitimate interest in the matter. In addition, the Court took into account that the Constitutional Court’s intervention in the case had come at a point when all other remedies had been exhausted, and that there was an indication that there might be a systemic problem due to the fact that those remedies were available in child return proceedings in Slovakia. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background",
"5. The applicant was born in 1967 and lives in Madrid.",
"6. He was living in Spain together with a Slovak national, to whom he was not married. On 27 May 2009 a child was born to the applicant ’ s partner (“the mother”) in Slovakia. The applicant is the father of the child. The child is both a Slovak and a Spanish national.",
"7. Following the birth, the applicant, the mother and the child lived together with the applicant in Spain until 21 July 2010, when the mother took the child from Spain to Slovakia. Neither of them has ever returned.",
"8. On 31 August 2010 the mother petitioned the District Court ( Okresný súd ) in Martin (Slovakia) to make an order governing the exercise of parental rights and responsibilities in respect of the child. At the same time, she requested that, pending the final outcome of the proceedings, the District Court deal with these matters by way of an interim order.",
"9. On 14 September 2010 the District Court issued an interim order, pursuant to which the child was placed with the mother and the applicant was ordered to contribute towards the child ’ s maintenance pending the outcome of the proceedings on the merits. It was submitted by the applicant and not disputed by the Government that the written version of the interim order was not served on the applicant before 9 February 2011 and that, upon its service, the applicant was contributing to the child ’ s maintenance as ordered.",
"10. The interim order remained in force until the proceedings on the merits of the mother ’ s petition were terminated by the District Court on 28 February 2011 and, following the mother ’ s appeal, by the Regional Court ( Krajský súd ) in Žilina (Slovakia) on 30 June 2011.",
"These courts found that the relevant law for the determination of jurisdiction in the matter was Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 220 1 /2003”) and that, under Regulation No. 220 1 /2003, the crucial criterion for establishing jurisdiction over the matter was the place of habitual residence of the child. Having regard to the conclusions that had meanwhile been reached in that respect by the Bratislava I (Slovakia) District Court and the Bratislava Regional Court (see paragraphs 2 0 and 2 3 below), the place of the child ’ s habitual residence was Spain, and the Slovakian courts had no jurisdiction to entertain the matter.",
"B. Hague Convention proceedings",
"11. Meanwhile, on 5 August 2010, the applicant had complained about the removal and retention of the child by the mother before the Spanish Central Authority responsible for implementing the Hague Convention.",
"12. Subsequently, on 21 October 2010, the applicant lodged an application with the Bratislava I District Court under the Hague Convention and Regulation No. 220 1 /2003.",
"In his application, he argued that the child ’ s habitual residence was in Spain and that the mother had removed or retained the child wrongfully within the meaning of Article 3 of the Hague Convention.",
"Accordingly, the applicant sought an order for the child ’ s return to Spain.",
"13. On 3 November 2010 the District Court appointed the social services department for the city of Martin to represent the child ’ s interests in the proceedings.",
"14. The District Court called a hearing for 11 November 2010. However, two days before that date, that is to say on 9 November 2010, the mother ’ s lawyer asked for an adjournment on the grounds that the summons had only been received on that day, that a copy of the application had been served on them without enclosures, and that they had consequently not had adequate time and facilities to prepare.",
"15. On 10 November 2010 the District Court informed the mother ’ s lawyer, in response to her request of the previous day, that, in view of the short time limits in proceedings under the Hague Convention, it was not possible to have the hearing postponed and that it would take place.",
"On the same day the mother ’ s lawyer inspected the case file; informed the court that, nevertheless, and on the same grounds as previously relied upon, they would not appear; and insisted that the hearing be adjourned.",
"16. On 11 November 2010 the District Court held a hearing as scheduled, in the presence of the applicant and his lawyer, who both made oral submissions. Neither the mother, nor the child, nor the social services department on the child ’ s behalf were present. The hearing was adjourned until 18 November 2010.",
"17. On 16 November 2010 the mother ’ s lawyer again inspected the case file and, on 18 November 2010, she lodged extensive written submissions. She explained the development of her client ’ s relationship with the applicant and described it. She submitted that, in connection with her falling out with the applicant, the mother had sought care from a mental health specialist; and that the child was closely attached to the mother and their separation was unthinkable. In addition, she submitted a letter from an association in Slovakia supporting women in need attesting that since 26 August 2010 the mother had been receiving their support in connection with allegations she had made that the applicant had been mistreating her. While admitting that there was no risk of direct harm to the child, the lawyer submitted that the applicant ’ s behaviour towards the mother should nonetheless be taken into account.",
"18. On 18 November 2010 the District Court held a hearing in the presence of the parties and their legal representatives, who all made oral submissions. The social services department on behalf of the child were not present.",
"19. At the conclusion of the hearing, the District Court allowed the applicant ’ s claim and ordered the child ’ s return to Spain. The order had the procedural form of a decision ( uznesenie ).",
"20. The District Court established that the child ’ s habitual residence was in Spain, that the mother had removed the child from there wrongfully, and that there were no obstacles to the return of the child there within the meaning of the Hague Convention. In addition, the District Court pointed out that its ruling in the present proceedings had nothing to do with questions of care and residence.",
"21. As to the mother ’ s specific claim that the return of the child should be declined in view of the applicant ’ s behaviour toward the mother, the District Court found that she had failed to substantiate her allegations. The letter from the association that had been offering care and support to the mother was solely based on the mother ’ s allegations and as such could not serve to support those allegations. In her own words, the applicant had never mistreated her physically and there was nothing to support her allegations of psychological mistreatment. In that respect, the District Court found it of relevance that the mother had not brought the alleged psychological mistreatment to the attention of the Spanish authorities at the time when it had allegedly taken place.",
"22. On 29 December 2010 the mother filed an appeal ( odvolanie ) with the Bratislava Regional Court. In the first place, she reiterated her argument concerning the time and facilities made available for preparation prior to the hearing of 11 November. Moreover, she challenged the District Court ’ s conclusions as regards the letter from the association that had been providing her with care and support and contended that the Distract Court had failed to obtain a report from the mental health specialist treating her. In addition, she argued that the District Court had failed to take into account the loss which the child would suffer by separation from the mother. In that respect, she relied on a written statement of the court-appointed representative for the child. Moreover, the mother claimed that risk within the meaning of Article 13 (b) of the Hague Convention did not have to be imminent, but could lie in the future. Lastly, in connection with the District Court ’ s conclusions as regards the habitual residence of the child and the wrongfulness of the child ’ s removal, the mother submitted that it had been her and not the applicant who had actually been taking care of the child and was better disposed and equipped to do so.",
"23. On 21 January 2011, in the procedural form of a decision, the Regional Court dismissed the appeal and upheld the first-instance decision.",
"The Regional Court fully endorsed the District Court ’ s reasoning and conclusions. In addition, it pointed out that the object and purpose of the Hague Convention was to ensure immediate restoration of the status quo which has been unlawfully changed by a person who wrongfully removes or retains a child by returning the child to the country of his or her habitual residence so that questions on the merits concerning care and residence may be examined by the court in that country. The purpose of the present proceedings had nothing to do with such substantive questions and they fell within the exclusive jurisdiction of the courts of the country of the child ’ s habitual residence.",
"The Regional Court further held that the Hague Convention and Regulation No. 220 1 /2003 represented a departure from the traditional private-international-law principle of nationality towards a principle based on the child ’ s habitual residence.",
"On the facts of the case, the Regional Court found no merit in the mother ’ s argument concerning the time and facilities given for preparation prior to the hearing of 11 November 2010, pointing out that time-limits under the Hague Convention had precedence over time-limits under the national procedural rules; that the mother and her lawyer had been duly summoned to the hearings; and that they had been granted ample opportunities to familiarise themselves with the case and to answer it. As to the mother ’ s complaints of the District Court ’ s alleged failure to obtain evidence she had sought to have adduced, the Regional Court pointed out that, under Article 13 of the Hague Convention, in return proceedings it was the person opposing the return who bore the burden of proof. Moreover, and in any event, some of the evidence adduced by the mother bore on questions falling outside of the scope of the present proceedings. As to the mother ’ s specific allegations of mistreatment, these were contradicted by the contents of the case file, in particular by copies of her e -mail communications with the applicant and his sister, as well as by photographs of the mother, the child and the applicant from the period between the child ’ s birth and her wrongful removal from Spain.",
"Lastly, the Regional Court held that the order for the child ’ s return by no means implied her separation from the mother, as the mother was free to return to Spain with the child and to assert her claims in respect of the child before the courts having jurisdiction to entertain them.",
"24. The order for the child ’ s return to Spain became final and binding on 4 February 2011.",
"C. Extraordinary remedies",
"1. Appeal on points of law",
"25. Subsequently, on 15 February 2011, the mother lodged an appeal on points of law ( dovolanie ) with the Supreme Court ( Najvyšší súd ) of Slovakia. The applicant was then allowed to submit observations in reply.",
"26. On 22 March 2011 the Supreme Court declared the appeal inadmissible. As to the applicable principles, it acknowledged that, in Hague Convention proceedings, the courts are duty-bound diligently to establish the facts, and not to limit themselves to the evidence adduced by a single party to the proceedings.",
"As to the specific facts of the present case, the Supreme Court observed that the applicant ’ s application for the commencement of the Hague Convention proceedings had been served on the mother without its enclosures. However, it held that this error had quickly been corrected when, on 10 November 2010, the mother ’ s lawyer had inspected the case file (see paragraphs 1 1, 1 4 and 1 5 above).",
"Moreover, the Supreme Court held that it had been wrong of the Bratislava I District Court to hold the hearing of 11 November 2010 in the absence of the mother and her lawyer and without giving them adequate time and facilities to prepare. However, that error had also been rectified by hearing the case again on 18 November 2010. At that hearing, the mother had made extensive submissions and, in addition, she had had further ample opportunity to make her case before the Court of Appeal.",
"Finally, as to the child, whose court - appointed representative (see paragraph 1 3 above) had failed to show up without any excuse at either of those hearings, the Supreme Court observed that the representative had duly been summoned and held that, in the circumstances, the representative ’ s absence had been no obstacle to the District Court proceeding with the determination of the case.",
"2. Extraordinary appeal on points of law",
"27. In parallel to her appeal on points of law, the mother also petitioned the Public Prosecution Service (“PPS”) to exercise their discretionary power to challenge the lower courts ’ decisions by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ).",
"28. The PPS decided not to act upon the petition, on the grounds that the mother ’ s appeal on points of law and her later petition for reopening (see paragraphs 29 et seq. below) were still pending, these remedies having precedence over an extraordinary appeal on points of law. This position was upheld in a letter of the Bratislava Regional Office of the PPS of 12 January 2012.",
"In that letter, the PPS endorsed the reasoning behind the judgment of the Supreme Court of 22 March 2011 (see paragraph 2 6 above) and, in addition, expressed a detailed and reasoned opinion that the order for the child ’ s return was correct on merits.",
"3. Petition for reopening",
"29. In addition to the extraordinary remedies mentioned above, on 20 June 2011 the mother filed a petition to have the Hague Convention proceedings reopened ( návrh na obnovu konania ).",
"30. The petition was dismissed by the Bratislava I District Court on 5 August 2011 and, following the mother ’ s appeal, by the Bratislava Regional Court on 25 October 2011. The grounds for the rejection were that the Hague Convention proceedings had been concluded in the procedural form of a decision ( see paragraph 19 and 2 3 above ), as opposed to a judgment ( rozsudok ), and that, in the circumstances, the reopening of proceedings concluded by a decision was not permissible by law (Article 228 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – the “CCP” ).",
"D. Enforcement",
"31. By letter of 12 February 2011 the applicant invited the mother to abide by the return order, to no avail.",
"32. On 2 2 February 2011 the applicant applied to the Martin District Court for a warrant to have the return order enforced, pointing out that the order had become final and binding on 4 February 2011 (see paragraph 2 4 above).",
"33. On 16 March 2011 the District Court called upon the mother to abide by the return order voluntarily and summoned her for an interview on 31 March 2011. In response, the mother asked for the proceedings to be stayed in view of her extraordinary appeal and petition for reopening that were still pending (see paragraphs 2 7 – 3 0 above), and she did not show up for the interview.",
"34. On 17 March 2011 the District Court appointed the Martin Social Services Department as the representative of the child ’ s interests for the purposes of the enforcement proceedings.",
"35. The District Court heard the enforcement case on 28 April and 13 May 2011. At a further hearing called specifically for that purpose on 16 May 2011, it delivered a warrant for the enforcement of the return order and authorised the applicant to carry out the enforcement.",
"36. The mother and the child ’ s court-appointed representative appealed to the Žilina Regional Court, which – on 7 September 2011 – decided to stay the proceedings on their appeal. It did so observing that, in the meantime, the mother had petitioned for reopening of the Hague Convention proceedings (see paragraph 29 above ) and that, if her petition was granted, the enforcement proceedings would be stayed by operation of law.",
"37. Following the dismissal of the mother ’ s petition for reopening (see paragraph 3 0 above), on 24 November 2011 the Regional Court resumed the appeal proceedings, only to stay them again, on 1 December 2011, this time in view of the mother ’ s petition to the PPS for an extraordinary appeal on points of law (see paragraph 2 7 above), which was still pending.",
"38. Following the dismissal by the PPS of the mother ’ s petition for an extraordinary appeal (see paragraph 2 8 above), the appeal proceedings were again stayed on 2 February 2012, this time on the basis of the judgment ( nález ) of the Constitutional Court ( Ústavný súd ) of 13 December 2011 (see paragraphs 4 2 et seq. below).",
"E. Constitutional complaint",
"39. On 1 July 2011, acting in her own name as well as that of the child, the mother challenged the decision of the Supreme Court of 22 March 2011 to reject the appeal on points of law (see paragraph 2 6 above) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).",
"40. The complaint was directed against the Supreme Court. The applicant was neither a party to the ensuing proceedings nor informed of them.",
"41. On 18 October 2011 the Constitutional Court declared the complaint admissible.",
"42. On 13 December 2011 it gave a judgment dismissing the complaint on the merits in so far as it had been brought by the mother and, at the same time, in so far as the child was concerned, finding that the Supreme Court had violated the child ’ s rights as specified below.",
"43. In particular, a violation of the child ’ s rights was found under Articles 46 § 1 (judicial protection), 47 § 3 (procedural equality) and 48 § 2 (hearing in one ’ s presence and opportunity to comment on evidence) of the Constitution; Article 6 § 1 (fairness) of the Convention; and Articles 3 §§ 1 (consideration of the best interests of the child) and 2 (protection and care necessary for the child ’ s well-being) and 12 §§ 1 and 2 ( expression of the child ’ s views and being heard in judicial proceedings) of the Convention on the Rights of the Child.",
"44. The Constitutional Court endorsed the Supreme Court ’ s view that the District Court ’ s error in respect of the mother had been rectified at the hearing of 18 November 2010.",
"45. In so far as the child was concerned, however, the child ’ s views were to have been expressed by the court-appointed representative, whose failure to appear had not been a valid reason for ruling on the matter without having the child ’ s views established. There were tools, including procedural fines, for ensuring the proper involvement of the court-appointed representative in the proceedings.",
"46. Consequently, the Constitutional Court quashed the challenged decision and remitted the mother ’ s appeal on points of law to the Supreme Court for re-examination.",
"47. The judgment was final and not amenable to appeal.",
"F. Subsequent developments",
"1. Decisions",
"48. On 22 March 2012 the Supreme Court re-examined the mother ’ s appeal on points of law of 15 February 2011 (see paragraph 2 5 above) against the return order. Being bound by the Constitutional Court ’ s assessment of the case, it quashed the order and remitted the case to the first-instance court with a view to having the views of the child established by means appropriate for the child ’ s age and maturity.",
"49. The Bratislava I District Court heard the case on 6 and 27 June 2012. A further hearing was scheduled for 18 July 2012, but it was cancelled on the grounds that a few days before, the mother ’ s lawyer had been appointed the head of the Slovakian Central Authority responsible for implementing the Hague Convention. Consequently, the lawyer had had to resign and the mother had appointed a new lawyer.",
"At a subsequent hearing on 22 August 2012, the District Court ruled that the child was not to be returned to Spain. This ruling was upheld on 20 November 2012 by the Bratislava Regional Court following the applicant ’ s appeal.",
"2. Reasoning",
"50. The courts ’ reasoning may be summarised as follows. The child ’ s habitual residence for the purposes of the Hague Convention proceedings was Spain and her retention by the mother in Slovakia had been wrongful.",
"However, in view of the mother ’ s objections, it had to be examined whether there was any grave risk that the child ’ s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention.",
"51. For that purpose, in addition to the other evidence taken, the District Court had interviewed the child, aged three at the time, and the child ’ s court ‑ appointed representative, and the courts had also examined complex documentary evidence, including a report from the Spanish Central Authority as to the circumstances to which the child would be returned there.",
"52. The courts were guided by the best interests of the child, which they considered to be twofold, namely the interest in preserving relations with the child ’ s family and the interest in developing in a healthy environment.",
"53. The courts found that the child was attached to the mother and, in view of the child ’ s age, also to the child ’ s home environment, to which the child had been introduced when it had been fourteen months ’ old. The child only spoke Slovak, attended a kindergarten in Slovakia and was part of an extended family circle there. The courts concluded that the child ’ s removal from this environment would give rise to the risk of considerable detriment to the child and that, in the circumstances, the child ’ s best interests prevailed over those of the applicant.",
"As regards the applicant, the courts concluded that it had been two years since he had seen the child, that he had not been displaying a genuine interest in the child and that he had not been contributing to the child ’ s maintenance.",
"A separation of the child from the mother did not come in question. However, the mother ’ s vulnerable financial situation made it impossible to ensure proper care for the child in Spain. The child ’ s removal to Spain with the mother would thus expose the child to the risk of living in poverty.",
"54. In view of those circumstances, the courts examined whether adequate arrangements within the meaning of Article 11 § 4 of the Regulation No. 2201/2003 had been made to secure the protection of the child on its return.",
"In that respect, the courts expressed the view that adequate arrangements had to eliminate with the highest possible probability the risks that the child would face and that they should entail the provision of low-rent housing for the mother and the child, free of charge specialised social and psychological counselling, and a detailed explanation of the welfare benefits and supervision by social services available to the mother in Spain.",
"55. The courts held that, in so far as any guarantees had been identified by the Spanish central authority, they were not specific enough. In so far as the applicant had been offering to cover the costs of the mother ’ s and the child ’ s air travel, the child ’ s health insurance and kindergarten in Spain, and a room free of charge in his apartment there, these guarantees were found not to be adequate and the courts noted that their “ doubts as to whether he would actually keep his promises had not been assuaged ”.",
"56. The courts considered that they had established an overall picture of the social environment to which the child would return and had thoroughly examined the entire family situation. Based on the findings mentioned above, they concluded that the child ’ s return under the Hague Convention was not permissible."
] | [
"II. RELEVANT DOMESTIC, EUROPEAN AND INTERNATIONAL LAW AND PRACTICE",
"A. Hague Convention",
"57. For the purposes of the present case, the key provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction state as follows:",
"“The States signatory to the present Convention,",
"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,",
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,",
"Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –",
"...",
"Article 1",
"The objects of the present Convention are –",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"...",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"...",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –",
"(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"...",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.",
"...",
"Article 20",
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"...”",
"B. Further relevant provisions of European and international law",
"58. Further relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and Regulation No. 2201/2003 have recently been summarised in the Court ’ s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013).",
"C. Relevant domestic law and practice",
"1. Constitution",
"59. Article 127 reads as follows:",
"“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.",
"2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person ’ s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person ’ s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person ’ s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.",
"3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.",
"4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court ’ s decision.”",
"2. Constitutional Court Act (Law no. 38/1993 Col., as amended)",
"60. Article 21 :",
"“1. The parties to proceedings ( účastníci konania ) are the plaintiff and, as the case may be, the person against whom the application is directed, as well as [other] persons so identified under this Act.",
"2. Intervening parties to proceedings ( vedľajší účastníci konania ) are persons so identified under this Act, as long as they do not waive this status. They have the same rights and duties in the proceedings as the parties, but they act always in their own name. ”",
"61. Article 51",
"“ The parties to proceedings [ concerning individual complaints] are the complainants and the person against whom the complaint is directed.”",
"3. The Constitutional Court ’ s practice as regards third-party interventions",
"62. In a judgment of 27 May 2010 in case no I. ÚS 223/09, the Constitutional Court ruled on the merits of an individual complaint by a private entity against decisions of the Supreme Court in an administrative case. In the proceedings leading up to that judgment, the Constitutional Court had admitted sixteen individuals and one municipality to the proceedings as third parties on behalf of the Supreme Court. It observed that, as regards proceedings before the Constitutional Court, the Constitutional Court Act was the lex specialis in relation to the CCP. It further observed that, contrary to the CCP (Article 93 § 1), the Constitutional Court Act (section 21(2)) provided no basis for third parties to intervene in proceedings on individual complaints. Nevertheless, the Constitutional Court found that there could be no doubt that the individuals and the municipality in question had a legal interest in the outcome of the proceedings. Therefore, in conformity with the applicable constitutional principles, the standing of an intervening third party was to be granted to them and their observations were to be taken into account.",
"63. In its judgment cited in the precedent paragraph, the Constitutional Court referred to its previous judgments of 9 September 2008 (case no. II. ÚS 91/08 ) and 14 June 2006 (case no. II. ÚS 122/05 ).",
"In the former case, a municipality had claimed the status of an intervening party. Although this status was declined with reference to section 21(2) of the Constitutional Court Act as having no legal basis, the views of the municipality were nevertheless taken into account, as it was recognised that it had a legal interest in having a fair trial.",
"In the latter case, a third party was denied the right to intervene without any explanation.",
"64. In another unrelated case, no. IV. ÚS 249/11, the Constitutional Court examined an individual complaint of an alleged violation of the complainant ’ s rights to judicial protection and fair trial in the proceedings in an action by his former wife against him for maintenance payments. In a judgment of 20 June 2013 the Constitutional Court observed that, upon the request of the complainant ’ s former wife, she had been allowed to make written submissions in respect of the complaint. In its judgment, the Constitutional Court cited the relevant part of those submissions but there is no indication how, if at all, it took them into account. There is equally no indication that it took any formal decision as to the standing of the complainant ’ s former wife in the proceedings before the Constitutional Court.",
"4. The U.N. Convention on the Rights of the Child and the Hague Convention in Slovakia",
"65. The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.).",
"5. Other practice",
"66. In an unrelated international child abduction case before the Bratislava II District Court (case no. 49P 414/2007 ), an extraordinary appeal on points of law was lodged by the PPS against a final, binding and enforceable return order. On 4 February 2009, in response to an enquiry prompted by the father of the child concerned, the President of the District Court provided the Office of the President of Slovakia with an update on the state of the proceedings and added the following comment:",
"“It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad ( ‘ international child abductions ’ ). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to their country of habitual residence within the shortest possible time.”",
"THE LAW",
"I. ALLEGED VIOLATIONS OF THE CONVENTION",
"67. Relying on Articles 6 and 8 of the Convention, the applicant complained that : (i) the Slovakian authorities had failed to ensure the prompt return of the child; (ii) the proceedings for the child ’ s return had not been expeditious; (iii) in the Hague Convention proceedings he had not been provided with a translation of judgments and decisions into a language he understood; (iv ) those proceedings had been interfered with by an arbitrary judgment of the Constitutional Court, given in proceedings to which he had not been a party, and had thus not been able to affect the outcome of despite having a direct interest in it; and (v) as a result of the foregoing, he had been deprived of contact with his child for a protracted period of time.",
"A. Admissibility",
"68. The Government objected that the guarantees of Article 6 of the Convention did not apply ratione materiae to the proceedings commenced by the mother ’ s petition of 31 August 2010 for an order governing the exercise of parental rights and responsibilities in respect of the child (see paragraphs 8 to 10 above) and to those concerning her petition for reopening of the Hague Convention proceedings (see paragraphs 29 and 30 above).",
"69. The Government also objected that, as far as the Hague Convention proceedings were concerned, the applicant had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, especially in so far as he was complaining under Article 6 of the Convention about the length of those proceedings and their alleged unfairness and under Article 8 of the Convention of a violation of his right to respect for his private and family life in those proceedings.",
"In the Government ’ s submission, the applicant could have, but had not, raised such matters before the Constitutional Court by way of a complaint under Article 127 of the Constitution.",
"70. The Court observes, first of all, that the present application is not directly concerned with the specific proceedings referred to in the Government ’ s first objection, as summarised in paragraph 68 above, and that these proceedings are captured in the present judgment merely as a part of the background and context of the present case. It therefore finds that this part of the Government ’ s submission calls for no separate judicial examination.",
"71. As to the Government ’ s non-exhaustion objection, in respect of the complaints summarised under numerals (i) to (iii) in paragraph 67 above, the Court observes that the proceedings under the Hague Convection ended by the dismissal on 20 November 2012 of the applicant ’ s appeal against the ruling refusing his application for an order for the return of the child (see paragraph 49 above).",
"72. The Court is in agreement with the Government ’ s argument that, in so far as the applicant has complained of the length of these proceedings and their final outcome, including the question of the language of the proceedings, be it under Article 6 or Article 8 of the Convention, such complaints could and should first have been made before the Constitutional Court. By not having done so, the applicant has failed to exhaust domestic remedies. In consequence, the relevant part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.",
"73. However, the Court notes that the applicant also complained of a violation of his Convention rights due to the Constitutional Court ’ s judgment of 13 December 2011 ( the complaints summarised under numerals (iv) and (v) in paragraph 67 above).",
"74. As regards those complaints, the Court observes that the Constitutional Court ’ s judgment was final and not amenable to appeal before the Constitutional Court or any other body (see paragraph 4 7 above).",
"75. Therefore, in respect of the relevant part of the application, the Government ’ s objection of non ‑ exhaustion of domestic remedies has to be dismissed. Noting that it is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other ground, the Court finds that it must be declared admissible.",
"B. Merits",
"76. Relying on Articles 6 and 8 of the Convention, the applicant complained that the Hague Convention proceedings had been arbitrarily interfered with by the Constitutional Court ’ s judgment of 13 December 2011 and that he had consequently been deprived of contact with his child for a protracted period of time.",
"77. The Court considers that, on the facts of the present case, these complaints most naturally fall to be examined under Article 8 of the Convention, the relevant part of which reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"1. The parties ’ arguments",
"78. The applicant contended that he had not been informed of the proceedings before the Constitutional Court leading up to its judgment of 13 December 2011, let alone been able to be a party to them. Yet this judgment had had a direct impact on his rights, in that it had quashed the final, binding and enforceable order for the return of the child, had led to a new round of the Hague Convention proceedings, with the attendant continued deprivation of his contact with the child, and, in view of the critical importance of the passage of time in those proceedings, had ultimately led to the denial of the child ’ s return.",
"79. In reply, the Government admitted that the Constitutional Court ’ s judgment of 13 December 2011 had constituted an interference with the applicant ’ s Article 8 rights but contended that such interference had been justified, in that it had pursued the legitimate aim of promoting the best interests of the child.",
"In addition, the Government relied on the Constitutional Court ’ s judgment of 27 May 2010 in case no I. ÚS 223/09 (see paragraph 6 2 above) and submitted that, just as had been possible in that case, it had been open to the applicant to seek admission to the Constitutional Court proceedings in the present case as an intervening third party.",
"The Government emphasised that the entire Hague Convention proceedings had been expeditious and considered that the proceedings before the Constitutional Court had also been conducted with sufficient promptness.",
"In addition, they submitted that the applicant had ignored the mother ’ s invitations to come and see the child in Slovakia and had limited himself to telephone communications with the child, despite having been in Slovakia on several occasions.",
"80. In a rejoinder, the applicant submitted that his first step towards the initiation of the Hague Convention proceedings had not been his application of 21 October 2010 to the Bratislava I District Court, but rather his complaint of 5 August 2010 to the Spanish Central Authority (see paragraphs 1 1 and 1 2 above). In addition, he contended that he had in fact been made to contribute towards the maintenance of the child under the interim measure of 14 September 2010, and had done so after it had been served on him on 9 February 20 11 (see paragraph 9 above). As to the proceedings before the Constitutional Court, the applicant emphasised that they had concerned a final, binding and enforceable court order and that neither he nor his lawyer had been informed of them, which was why he had not, in fact, had any ability to take part in them. In so far as the Constitutional Court judgment complained of had been based on the failure of the court-appointed representative to show up at scheduled hearings, such failure had not been imputable to him and it had been unfair to make him bear the consequences of such failure. As a result of the Constitutional Court ’ s judgment, the Hague Convention proceedings had been arbitrarily protracted and their purpose frustrated. Lastly, the applicant submitted that he considered the mother ’ s actions to be criminal in nature, which had made him apprehensive and reluctant to seek more active contact with the child upon the mother ’ s invitation.",
"81. In a further rejoinder, the Government argued that the Constitutional Court was under no statuary duty to notify third parties of the commencement of proceedings on individual complaints with possible repercussions on such third parties ’ rights and interests. This was due to the specific role the Constitutional Court played in the constitutional system of Slovakia. As to the final outcome of the Hague Convention proceedings, the Government referred to the reasons relied on by the domestic courts and emphasised that the child had already spent a significant amount of time in Slovakia and had become fully integrated into society there.",
"2. The Court ’ s assessment",
"82. The Court observes that there was no dispute between the parties that the relationship between the applicant and the child was one of family life, that the proceedings for the return of the child under the Hague Convention impacted on the applicant ’ s right to respect for his family life and that, consequently, his complaint fell within the ambit of Article 8 of the Convention.",
"83. The Court reiterates that, while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in an effective “respect” for family life (see, for example, Chabrowski v. Ukraine, no. 61680/10, § 104, 17 January 2013, with further references).",
"84. In that respect, the Court reiterates that positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 110, ECHR 2007 ‑ I).",
"85. On the facts of the present case, the Court observes that the primary interference with the applicant ’ s right to respect for his family life may not be attributed to an action or omission by the respondent State but rather to the actions of the mother, a private party, who – as the domestic courts concluded – has wrongfully retained the child in Slovakia.",
"86. It therefore remains to be ascertained whether there were any positive obligations on the part of the respondent State that required to be taken with a view to securing to the applicant his right to respect for his family life and, if so, whether any such positive obligations have been complied with by the respondent State.",
"87. Furthermore, the Court has held in the past that the State ’ s positive obligations under Article 8 include a right for parents to have access to measures which will enable them to be reunited with their children and an obligation on the national authorities to take such action (see Chabrowski, cited above, § 105).",
"88. The Court observes that in disputes over the status of children comprising an international element a question often arises as to the jurisdiction to deal with such disputes and that, in a situation of international child abduction, that question is answered under Regulation No. 2201/2003 with reference to the child ’ s habitual residence immediately before the wrongful removal or retention (Article 10).",
"89. Moreover, the Court notes that, by operation of the Hague Convention, the courts of the country where a child is removed or retained are to carry out proceedings aimed at establishing whether the removal or retention has been wrongful (Article 3 of the Hague Convention) and, unless there are circumstances preventing the child ’ s return within the meaning of Article 13 or 20 of the Hague Convention, to order the return of the child to his or her country of habitual residence (Article 12 of the Hague Convention ). In the European Union this is subject to the provisions of Article 11 §§ 2 – 8 of Regulation No. 2201/2003.",
"90. The Court further observes that Slovakia is both a Member State of the European Union and a Contracting State of the Hague Convention. It follows that, in the circumstances of the present case, it was under an obligation to carry out the proceedings for the return of the child, which it did relying on the Hague Convention, as complemented by Regulation No. 2201/2003 (see paragraphs 12 et seq. and 50 et seq. above), with a view to enabling the courts in the country of the child ’ s habitual residence to resolve all questions relating to the child ’ s status, including matters relating to the applicant ’ s parental rights and responsibilities.",
"In that respect, the Court notes that the parties have pleaded the case exclusively in terms of the Hague Convention and that the domestic courts essentially dealt with the case within the framework of that instrument.",
"91. As to the ensuing question whether in discharging its obligations under the Hague Convention Slovakia has complied with its positive obligations under Article 8 of the Convention, the Court finds it opportune, at the outset, to refer to the summary of the general principles applicable in any assessment under the Convention of complaints concerning proceedings under the Hague Convention set out in its recent judgment in the case of X v. Latvia [GC] (cited above, §§ 99-108).",
"92. In respect of those general principles, the Court would observe, in particular, that the extent of its jurisdiction under Article 32 of the Convention is limited to matters concerning the interpretation and application of the Convention and the Protocols thereto. Nevertheless, in the area of international child abduction, the obligations imposed on the Contracting States by Article 8 of the Convention must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see X v. Latvia [GC], cited above, § 93, with further references).",
"93. The decisive issue in that type of case is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be the primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see X v. Latvia [GC], cited above, § 95, with further references).",
"94. In addition, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision ‑ making process involved must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Buckley v. the United Kingdom, no. 20348/92, § 76, ECHR 1996-IV). In other words, the procedural protection enjoyed by applicants at the domestic level in respect of their rights protected under Article 8 of the Convention has to be practical and effective (see, among many other authorities, Papamichalopoulos and Others v. Greece, § 42, 24 June 1993, Series A no. 260-B, and also Turek v. Slovakia, no. 57986/00, § 113, ECHR 2006 ‑ II (extracts) ), and consequently compatible with that Article.",
"95. Turning again to the specific circumstances of the present case, the Court notes that, in the initial round of examination, the applicant ’ s application for the return of the child under the Hague Convention was examined once by courts at two levels of jurisdiction, that their order for the return of the child became final, binding and enforceable, and that the order was nevertheless subsequently examined by the Supreme Court and the PPS, neither of these institutions having established any errors of substance or procedure justifying its quashing.",
"96. It was then that the Constitutional Court intervened, by quashing the Supreme Court ’ s decision, which then led to the quashing of the return order and the remittal of the matter to the first - instance court.",
"97. The Court observes that although the Constitutional Court ’ s judgment in the present case did not constitute a final decision on the applicant ’ s Hague Convention application, in view of the critical importance attached to the passage of time in the proceedings of this type it was instrumental in the ultimate determination of the applicant ’ s application.",
"98. The Court therefore finds it appropriate to examine whether the Constitutional Court ’ s intervention in the proceedings was compatible with the respondent State ’ s positive obligation as specified above.",
"99. In that respect, the Court notes that there is no issue in terms of the lawfulness of the Constitutional Court ’ s judgment and considers that it may be acknowledged that the judgment served the legitimate aim of protecting the rights and freedoms of others, namely those of the child.",
"100. The Court shall therefore proceed to examine whether the contested judgment could be considered as having struck a fair balance between the competing interests at stake. From that perspective, the Court finds the applicant ’ s procedural standing and protection, if any, in relation to the proceedings before the Constitutional Court to be of particular importance.",
"101. In that respect, the Court observes that the Constitutional Court proceedings were initiated by the mother and that the defendant was the Supreme Court. Consequently, the applicant was neither plaintiff nor defendant in those proceedings.",
"102. The Court further observes that the proceedings before the Constitutional Court are governed by the Constitutional Court Act, as the lex specialis, and that this Act does not envisage third parties, such as the applicant in the present case, having standing to intervene.",
"103. In so far as the Government argued that it was open to the applicant to seek admission to the Constitutional Court proceedings as an intervening third party by virtue of the subsidiary application of the relevant provisions of the CCP, the Court finds the Constitutional Court ’ s practice in that respect at the time of its judgment complained of in the present case to be rather inconclusive.",
"104. Be that as it may, the Court notes that there does not appear to be any official means by which a third party could learn about Constitutional Court proceedings concerning it.",
"105. Moreover, in the present case there is no indication that, at the relevant time, the applicant actually had any knowledge of the constitutional complaint by the mother. As a result, the proceedings before the Constitutional Court were carried out without his participation and he had no opportunity to influence their outcome, despite having a legitimate interest in it.",
"106. The Court finds that the complete lack of any procedural protection for the applicant before the Constitutional Court in this case was aggravated by an additional factor.",
"107. In particular, the Court considers that the impugned judgment has to be seen in a wider procedural context, taking into account the fact that, prior to it being rendered, all ordinary and extraordinary remedies against the return order had been exhausted. These included the mother ’ s appeal, appeal on points of law, petition for an extraordinary appeal on points of law, petition for reopening, and repeated petitions to have the enforcement proceedings stayed. To make matters worse, it is to be noted that, upon one of such petitions being filed, the enforcement proceedings were stayed on a ground ( petition for reopening pending ) that later turned out to be wholly unsupported at law (reopening of proceedings concluded by a decision impermissible at law) (see paragraphs 30, 36 and 37 above).",
"108. As regards the existing procedural framework for Hague Convention proceedings in Slovakia, which the present case was ultimately concluded under as a result of the impugned Constitutional Court judgment, the Court notes in particular the opinion expressed by the President of the Bratislava II District Court (see paragraphs 6 6 above), which may be understood as suggesting that there is a systemic problem in that appeals and extraordinary appeals on points of law are allowed in the course of return proceedings, with the attendant effect of negating the object and purpose of the Hague Convention.",
"109. The remittal of the present case to the ordinary courts resulted in yet more time being taken to deal with the case, which in the given type of case is of relevance for the outcome of the proceedings. The ultimate dismissal of the applicant ’ s application under the Hague Convection bears witness to this premise, as, in fact, does the relevant part of the Government ’ s arguments before the Court (see paragraph 81 above).",
"110. As a result, for a protracted period of time the status of the child has not been determined by any court, the courts in Slovakia having no jurisdiction to do so, and the courts in Spain having no practical opportunity to do so, a state of affairs which can by no means be said to have been in the child ’ s best interests.",
"111. The above considerations are sufficient for the Court to conclude that the respondent State has failed to secure to the applicant the right to respect for his family life by providing him with proceedings for the return of the child under the Hague Convention in compliance with the requirements of Article 8 of the Convention.",
"112. In view of this finding, the Court considers it unnecessary to examine separately the substantive grounds behind the Constitutional Court ’ s judgment of 13 December 2011. For similar reasons, the Court finds it unnecessary to examine separately the remaining admissible complaint.",
"113. In sum, there has been a violation of Article 8 of the Convention.",
"II. OTHER ALLEGED VIOLATIONS",
"114. Lastly, the applicant alleged a violation of Articles 1, 7, 11 and 12 of the Hague Convention.",
"115. As observed above, the Court has no jurisdiction ratione materiae to examine issues of compliance with the Hague Convention taken alone. It follows that the remainder of the application must be rejected in accordance with Article 35 § 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"116. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"117. By way of compensation in respect of non-pecuniary damage, the applicant claimed 150,000 euros (EUR) for either of the alleged violations of his rights under Articles 6 and 8 of the Convention. He also claimed EUR 15,000 in respect of each month until the child returned to Spain. Moreover, he claimed EUR 692.40 in respect of pecuniary damage, this amount consisting of the amounts he had been made to pay by way of contribution to the child ’ s maintenance and a fee for the child ’ s registration in a Spanish kindergarten (see paragraphs 9 and 55 above).",
"118. The Government contested the claim in respect of non-pecuniary damage as overstated, the claim for a monthly payment until the return of the child as not having any basis in the Court ’ s case-law, and the claim in respect of pecuniary damage as unfounded.",
"119. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.",
"120. In so far as the applicant may be understood as seeking a form of aggravated or punitive damages, the Court recalls that it has declined to make any such awards in the past (see, for example, Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 97, ECHR 2010 (extracts), with further references). Having found no reasons for reaching a different conclusion in the present case, the Court rejects this claim.",
"121. However, it awards the applicant EUR 19,500 in respect of non ‑ pecuniary damage.",
"B. Costs and expenses",
"122. The applicant also claimed EUR 6,079.94 for legal costs at the domestic level; EUR 7,080 for legal costs incurred before the Court; EUR 1,760.95 for translation costs; and EUR 1,921.53 for transportation and accommodation expenses incurred in connection with his travel to and from Slovakia and with his stay there.",
"123. The Government considered the claim concerning legal costs before the Court to be overstated. As for the costs and expenses incurred by the applicant at the domestic level, they requested that in the event of a finding of a violation of the applicant ’ s Convention rights compensation in that regard only be ordered in so far as those expenses had reasonably been incurred.",
"124. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7 ,500 covering costs under all heads.",
"C. Default interest",
"125. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
47 | Blaga v. Romania | 1 July 2014 | The applicant and his wife, both Romanian and American national, had three children, born in 1998 and 2000. They all lived in the United States of America until September 2008, when the mother took the children to Romania, without ever returning. The applicant alleged in particular that the Romanian courts, which had in March 2014 awarded sole custody of the children to their mother, had misinterpreted the provisions of the Hague Convention of 25 October 1980, relying exclusively on the opinion of his children to deny him their return to the United States. | The Court held that there had been a violation of Article 8 of the Convention, finding that the applicant had suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law had not satisfied the procedural requirements inherent in Article 8. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1967 and lives in Suwanee, the United States of America (“the U .S. ”).",
"6. In 1993 the applicant married D.B. in the U.S. state of Georgia. The couple both had American and Romanian citizenship. They had three children : A.H.B who was born on 25 March 1998, and twins, N.A.B. and P.N.B., who were born on 19 October 2000. The parents had joint custody of the children under U.S. law. They all lived in the U. S.",
"7. On 1 May 2007 the Superior Court of Forsyth County in the U.S. issued an injunction forbidding the applicant and his wife from removing their children or settling outside the jurisdiction of the said court without its express permission.",
"8. On 14 August 2008 the applicant signed a notarised form authorising his wife to leave the U.S. with their three children on 5 September 2008 for a short holiday to Romania on condition that she returned the children to the U.S. at the end of the holiday period.",
"9. The applicant ’ s wife failed to return the children to the U.S. and on 14 October 2008 she instituted divorce - and - custody proceedings against the applicant before the Braşov District Court in Romania.",
"A. Proceedings conducted before the U.S. courts",
"10. On 19 December 2008 the applicant filed for divorce and custody of his children with the Superior Court of Forsyth County.",
"11. On 13 January 2011 the Superior Court of Forsyth County dismissed the applicant ’ s action for insufficient notice of the trial and lack of jurisdiction. It held that the divorce proceedings instituted by the applicant ’ s wife on 14 October 2008 were regulated under Romanian legislation. In addition, the Romanian jurisdiction applied to the two spouses because they were both Romanian citizens, held Romanian nationality and their children lived in Romania. The applicant appealed against the judgment.",
"12. On 14 December 2011 the Georgia Court of Appeal dismissed the applicant ’ s appeal against the judgment of 13 January 2011.",
"B. Proceedings under the Hague Convention conducted in Romania",
"13. On an unspecified date the applicant submitted a request for the return of his three under - age children to the U.S., under Article 3 of the Hague Convention, to the U.S. Central Authority responsible for the obligations established by the Hague Convention. On 11 December 2008, the U.S. authority submitted the request to the Romanian Ministry of Justice. The applicant argued that his children had been unlawfully removed from U.S. territory by his wife, in breach of the joint - custody agreement between the spouses at the time of the removal.",
"14. On 12 December 2008 the Romanian Ministry of Justice contacted the applicant ’ s wife, informed her about the Hague Convention request lodged by her husband and asked her to express her position on a potential friendly settlement of the case and voluntary return of the children to the U.S.",
"15. On 14 January 2009 a private psychologist ’ s practice produced a psychological evaluation report concerning the applicant ’ s children. The report concluded based on tests and a psychological interview with the children that they were extremely affectionate; had a maternal fixation; had a need for safety, security and stability; they feared authority and unknown circumstances; felt anxiety in respect of the troubled family situation; wished to reject or quash any threat and had a defensive attitude. The report also noted that at the time of the examination the children were well balanced emotionally, were willing to communicate and cooperate, were expressive, adapted to the situation and willing to integrate and did not show any discordant behavior.",
"16. On 4 February 2009, the Romanian Ministry of Justice, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant, who was represented by a lawyer of his choosing, before the Bucharest County Court.",
"17. By an interlocutory judgment of 2 March 2009 the Bucharest County Court adjourned the proceedings so that the applicant ’ s wife could prepare her defence, the children could receive psychological counselling prior to being heard by the court and the Braşov Guardianship Authority could prepare a social inquiry report on the children ’ s living conditions, family situation and adjustment to the new conditions in Romania. The applicant was present at the hearing and submitted documentary evidence and requests before the court through his legal representative.",
"18. On an unspecified date the Braşov Guardianship Authority produced the social inquiry report ordered by the court. It concluded that the mother knew best and was most responsive to the children ’ s development needs. She had decided jointly with the children to leave the marital home and the children refused to return to the former family environment which they considered hostile as a result of the father ’ s abusive behavior. It noted inter alia that according to the children they had not perceived their father as a model and disapproved his abusive behavior. They referred to restrictions and physical punishments which they had considered unfair. They had witnessed their parents ’ disputes and they had perceived their mother as a victim. Consequently, they empathised with her. In the case of divorce they wished to live with their mother because they felt close to her and because she had constantly supported them both morally and affectively. They wished to remain in the mother ’ s custody and from the beginning they had been happy with the idea of moving to Braşov. They had been familiar with the new environment because they had often visited their maternal grandparents during the holidays and had contact with the mother ’ s extended family. They had been enrolled in school and they were adapting gradually to the new situation. They had made friends and the language barrier problem had almost disappeared.",
"19. By interlocutory judgments of 13 and 15 April 2009 the Bucharest County Court adjourned the proceedings after allowing the parties to submit oral and written submissions and pending deliberation.",
"20. On 16 April 2009 the Bucharest County Court dismissed the applicant ’ s action on the basis of testimonial and documentary evidence, the social inquiry report produced by the Braşov Guardianship Authority, and the children ’ s testimonies heard by the court after they had attended counselling sessions organised by the Bucharest Social Assistance and Child Protection Agency. It held that after the children had arrived in Romania they had settled in Braşov together with their mother and had been enrolled in school. The social inquiry had shown that the children had been familiar with the new environment because they had often spent their holidays there with their maternal grandparents and with their mother ’ s wider family. However, according to the decision of the U.S. courts and the available evidence, the applicant enjoyed joint custody of the children and had a right to decide where they should live. Moreover, while the applicant had agreed that the children could leave the U.S., his wife ’ s failure to return them to the U.S., the country of their habitual residence, was unlawful. Although, the applicant and his wife had discussed the option to leave the U.S. and to return to Romania, a final decision had not been taken in that regard prior to her departure. Furthermore, her argument that the applicant ’ s strict social and religious upbringing of the children posed a serious risk if they were to return to the U.S. and would expose them to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention, was unfounded. However, citing the Elisa Perez-Vera Explanatory Report and Article 13 § 2 of the Hague Convention, and taking into account the available evidence, the court held that the children ’ s views concerning the essential question of whether they should return to the U.S. or remain in Romania could be decisive, because they had attained an age and degree of maturity sufficient for their views to be taken into account. This was the only reason the court refused to order their return to the U.S. In this context, it acknowledged that the twins were less than ten years old at the time, an age considered by Romanian law to be the minimum age for the views of a child to be taken into account. However, A.H.B. was eleven years old and she had stated freely and unequivocally that she wished to stay in Romania, where the children were integrated in their new school and extra- curricular environment. Consequently, the opinion of the twins could not be ignored by the court, given that it was not in the best interests of the children to be separated and that their potential return to the U.S. would generate new and potentially traumatic circumstances affecting their psychological development.",
"21. The applicant, represented by his lawyer, and the Romanian Ministry of Justice appealed on points of law ( recurat ) against the judgment. He argued that the County Court had misinterpreted the provisions of the Hague Convention and that its decision interfered with the jurisdiction held by the U.S. courts in respect of custody matters. Also, the court had failed to provide any reasons why it considered all his children sufficiently mature in order to rely on their opinion. He argued that allowing A.H.B. to make decisions also for her siblings was unacceptable. The Romanian Ministry of Justice argued on behalf of the applicant that the court had incorrectly assessed the evidence in the file and had considered the opinion of an eleven year - old sufficient for its decision. Since there was no evidence in the file to suggest that the children ’ s return to the U.S. would expose them to serious harm, the Romanian authorities had a duty to return them to their State of habitual residence.",
"22. By an interlocutory judgment of 3 June 2009 the Bucharest Court of Appeal adjourned the proceedings pending the receipt of procedural information it had requested from the Bucharest County Court and in order to allow the applicant ’ s wife to prepare her defence.",
"23. On 24 June 2009 the Bucharest Court of Appeal allowed the applicant ’ s appeal on points of law, quashed the judgment of 16 April 2009 and ordered a retrial. It noted of its own motion that the interlocutory judgment of 13 April 2009 postponing the date of the decision was missing from the file. Therefore, the appellate court was unable to determine whether the applicant ’ s right to a fair trial and of access to court had been observed by the judicial authorities.",
"24. On 28 July 2009 the case file was re-registered on the Bucharest County Court ’ s docket.",
"25. By interlocutory judgments of 14 September, 7 October and 4 November 2009 the Bucharest County Court adjourned the proceedings in order to examine a request by one of the judges to abstain; to allow the parties to submit written observations and evidence, including documents obtained by the applicant from the U.S. State Department attesting that the unlawful failure to return children to the U.S. was a federal offence; and to deliberate.",
"26. By a judgment of 24 November 2009, following a second set of proceedings, the Bucharest County Court dismissed the applicant ’ s action. It acknowledged, by referring also to the decision of the U.S. court of 1 May 2007, that the applicant shared the custody of his children, that their removal from the U.S. had been unlawful and that their return to that country in spite of the applicant ’ s wife ’ s claims of inter alia physical corrections applied to the children, would not expose them to physical and psychological harm within the meaning of Article 13 § 1 (b) of the Hague Convention. However, by relying on the Elisa Perez-Vera Explanatory Report, the children ’ s views had been considered decisive for the court ’ s decision to dismiss the applicant ’ s action.",
"27. The applicant, through his legal representative, and the Romanian Ministry of Justice appealed on points of law against the judgment. They argued, inter alia, that the County Court had failed to acknowledge that by unlawfully removing the children from the U.S., their mother had breached U.S. laws. Moreover, the court had ignored the U.S. legislation and the decisions of the U.S. courts. They were wrong to have considered as conclusive the views of children who had not attained an age and a degree of maturity sufficient for their views to be taken into account. Furthermore, the courts had misinterpreted the provisions of the Hague Convention and of the domestic legislation. Lastly, by dismissing his action, the Romanian courts had transferred the jurisdiction of the U.S. courts concerning divorce and custody matters to the Braşov District Court.",
"28. On 12 February 2010, relying on Article 11 of the Hague Convention, the applicant submitted a request for a statement on the delay in the proceedings instituted by him for the return of his children with the Bucharest County Court. He argued that the repeated delays caused by the Romanian authorities in examining his case, including by not respecting the statutory ten - day time-limit for the reasoning of the judgment, had breached his right to a trial within a reasonable time guaranteed by Article 6 of the European Convention on Human Rights.",
"29. On 25 February 2010 the Bucharest County Court acknowledged the applicant ’ s request of 12 February 2010 and informed him that the judgment it had delivered on 24 November 2009 had been reasoned and communicated to the parties and the case file had been archived on 23 February 2010.",
"30. By interlocutory judgments of 18, 25 and 29 March 2010 the Bucharest Court of Appeal adjourned the proceedings for deliberations and in order to allow the applicant ’ s wife to submit written observations.",
"31. By a final judgment of 25 March 2010 the Bucharest Court of Appeal dismissed the applicant ’ s appeal on points of law. It held that, although the children had dual nationality, they had been born and had resided in the U.S. In addition, there was no evidence in the file that the applicant had not had custody rights over them or that he had not exercised them immediately prior to their departure. Consequently, their retention in Romania by their mother against the applicant ’ s will had been unlawful. However, it noted that the provisions of the Hague Convention, as interpreted also by the Elisa Perez-Vera Explanatory Report, suggested that the best interests of the children were at the heart of the unlawful removal principles regulated by the said Convention and the exceptions thereto. Consequently, the lower court ’ s decision to refuse the return of the children to the U.S. by relying on Article 13 § 2 of the Hague Convention – after examining both parties ’ submissions and the particular schooling and extra ‑ curricular circumstances of the children, and declaring the mother ’ s refusal to return them unlawful – was not contradictory and did not amount to a misinterpretation of the Hague Convention.",
"32. The court further noted that according to the available evidence that the parties had wished for their children to maintain strong ties with Romania. However, it dismissed the applicant ’ s wife ’ s argument that through his actions and behavior at the moment of their departure from the U.S., the applicant had agreed to settle the children ’ s residence in Romania and that therefore the retention had been lawful within the meaning of Article 13 § 1(a) of the Hague Convention. At the same time, the refusal to order the return of the children was based on Article 13 § 2 of the Hague Convention; it did not amount to a transfer of jurisdiction to the Romanian courts in respect of custody matters because the Hague Convention itself provided for the refusal to return in exceptional circumstances and gave precedent to the child ’ s best interest. The decision of the lower court could not change the fact that the parties and their children were also Romanian nationals, a factor that may be considered relevant by a court when determining its competence to examining the custody proceedings; something that this court was not lawfully allowed to do.",
"33. Moreover, the children, the eldest of whom was approximately twelve years old, had been heard by the first-instance court in the presence of a psychologist and after counselling sessions. They had all freely and unequivocal stated, in the absence of any parents or relatives, that they did not wish to return to the U.S. The children had shown a sufficient degree of maturity in expressing their opinions. They understood their situation and made logical assessments which were not plagued by contradictions concerning their relationship with their parents, their future perspectives in the two countries and their views on family life. In this context, the argument that the twins were under ten years old at the time and that therefore their opinions could not be considered relevant for the case was unfounded. In addition, the lower court ’ s reliance on Article 13 § 2 of the Hague Convention was also justified by A.H.B. ’ s clear refusal to return to the U.S. Her refusal was compelling and had been expressed at an age and maturity which fulfilled the requirements set out in Article 13 § 2 of the Hague Convention. According to the evidence and the psychological evaluation reports available in the case file, the connection between the three siblings was very strong. Consequently, an assessment that the twins did not show a sufficient degree of maturity in expressing their opinions would not serve the best interests of the children. A separation of the siblings would be traumatic and would have a detrimental impact on their future psychological development. Also, according to the conclusions of the psychological evaluation reports the children ’ s separation from the current environment would result in a serious risk for them. Furthermore, there was no evidence in the file to support the applicant ’ s argument that his wife had denied him personal relations with his children and had deprived him of his family life. In addition, the present case did not concern custody rights; consequently, the court dismissed the applicant ’ s argument that under the domestic legislation it should not attach more weight to the children ’ s statements than to those of the parent exercising his parental rights or that by doing so it had discriminated against him in relation to his wife.",
"34. By attaching more weight to the children ’ s best interest, the court further held that the return of the children to the U.S. against their will could have only destabilized them and subjected them to new pressure, which could have negatively influenced their future development, given that the relationship between their parents had radically changed since they had left the U.S. Lastly, the Court of Appeal considered that the first-instance court had correctly interpreted the provisions of the Hague Convention. It had not misinterpreted the provisions of Article 12 § § 1 and 2 of the Hague Convention, given that its decision had been based on the best interests of the children, as required by Article 13 § 2. In addition, it considered that the first-instance court would have been forced to order the return of the children only if after it had examined the circumstances of the new environment the children enjoyed, it would have found that their health and future development had been endangered.",
"C. Divorce - and - custody proceedings conducted in Romania",
"35. By an interlocutory judgment of 20 February 2009 the Braşov District Court allowed the parties ’ request seeking the suspension of the custody and divorce proceedings pending the outcome of the Hague Convention proceedings, and ordered the postponement of the trial.",
"36. By an interlocutory judgment of 18 June 2010 the Braşov District Court reopened the divorce - and - custody proceedings at the parties ’ request and allowed them to submit documentary and testimonial evidence. In addition, it ordered a social inquiry report on the applicant ’ s living conditions in the U.S. through an international rogatory commission.",
"37. On 30 September 2010 the Romanian Ministry of Justice informed the Braşov District Court that it had forwarded the court ’ s request for a social inquiry at the applicant ’ s home in the U.S. to the relevant American authorities with the aid of the U.S. State Department. At the same time the Ministry of Justice informed the court that the international rogatory commission proceedings would take between six months and a year.",
"38. By interlocutory judgments of 13 December 2010, and 18 March and 10 June 2011, the Braşov District Court adjourned the proceedings repeatedly in order to allow the parties to submit evidence and for procedural reasons. In addition, it dismissed the applicant ’ s request to reiterate its request for a social inquiry at his home through the international rogatory commission proceedings on account of the information note of 30 September 2010. At the same time it allowed the applicant ’ s request to adjourn the proceedings for a longer period of time pending the receipt of documents requested from the U.S.",
"39. At the hearing of 2 September 2011 the applicant raised a preliminary objection, arguing that under the Hague Convention and Council Regulation no. 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial and parental responsibility matters (“the Council Regulation”), the Romanian courts did not retain jurisdiction in respect of divorce - and - custody proceedings as a similar action was pending before the U.S. courts. In addition, the children ’ s habitual residence prior to their unlawful removal was in the U.S. Consequently, the courts in the U.S. retained jurisdiction in respect of child ‑ custody matters. Lastly, the U.S. courts had issued an injunction forbidding the removal of the children from their jurisdiction.",
"40. By an interlocutory judgment delivered the same day, the Braşov District Court dismissed the applicant ’ s preliminary objection. It held that under the relevant domestic legislation the Romanian courts had jurisdiction in respect of proceedings concerning divorce and custody matters instituted by Romanian citizens living abroad. The applicant, his wife and their children were Romanian citizens and their civil - status papers had been registered in Romania. In addition, the Romanian courts had dismissed the applicant ’ s action seeking the return of his children to the U.S. The children had been residing in Romania with their mother since September 2008 and were well adapted to their new living conditions. Consequently, under the Hague Convention the jurisdiction of the U.S. courts had ceased from the time the children had been settled in Romania, that is after the Romanian courts had dismissed the applicant ’ s request for the return of his children. Moreover, the Council Regulation could not be applied to the present case because it concerned only situations where both parties were European residents. The court adjourned the proceedings for procedural reasons.",
"41. By interlocutory judgments of 30 September and 11 November 2011 the Braşov District Court ordered that the separate set of proceedings which D.B. had instituted against the applicant seeking an injunction for his agreement to the children being issued a Romanian passport and to their travelling abroad be joined to the divorce - and - custody proceedings. In addition, the court allowed the parties ’ request for evidence, including testimonial evidence. It adjourned the proceedings pending the submission of evidence and for procedural reasons.",
"42. By an interlocutory judgment of 21 November 2011 the Braşov District Court dismissed the applicant ’ s preliminary objection concerning the Romanian courts ’ lack of jurisdiction in respect of the proceedings regarding the injunction requested by his wife. It held that the proceedings were subsidiary to the divorce - and - custody proceedings and that the court had already ruled that the Romanian courts had jurisdiction in matrimonial and custody matters. The court reiterated the arguments it had relied on in the interlocutory judgment of 2 September 2011. It dismissed the application for the suspension of the proceedings before the Romanian courts pending the outcome of the divorce proceedings instituted by the applicant against his wife before the U.S. courts. It held that the suspension request was unfounded given the provisions of the Council Regulation. Also, it had already been ruled that the Romanian courts held jurisdiction in respect of the proceedings to which the applicant was party, and the Superior Court of Forsyth County in the U.S. had acknowledged that decision. The court adjourned the proceedings pending the submission of evidence by the parties.",
"43. By interlocutory judgments of 23 January, 5 March, 14 May, 30 July and 24 September 2012 the Braşov District Court adjourned the proceedings pending the submission of evidence by the parties, the receipt of information about the applicant ’ s income from his employer and the outcome of the international rogatory commission proceedings conducted by the Ministry of Justice in order to hear the foreign nationals chosen by the applicant to testify on his behalf.",
"44. By an interlocutory judgment of 27 May 2013 the Braşov District Court adjourned the proceedings in order to allow the applicant to submit a written declaration stating his intention or refusal to pay for the travel expenses of the witnesses he had asked for and who were living abroad.",
"45. By an interlocutory judgment of 10 June 2013 the Braşov District Court dismissed the applicant ’ s request that the court order the Ministries of Justice and Foreign Affairs to contact the U.S. authorities in order to hear the American witnesses selected by the applicant. It held that since the proceedings had started, it had repeatedly issued such orders without any results for the case. In addition, Article 1 of the Hague Convention acknowledged that the civil - procedure rules applied to the administration of evidence before the first - instance court. Consequently, it turned down the applicant ’ s request to have American witnesses heard because he had refused to pay their travel expenses to Romania in order to appear before the court. Lastly, it allowed the applicant ’ s request to adjourn the proceedings pending the submission by his wife of documentary evidence regarding her income.",
"46. By an interlocutory judgment of 20 June 2013 the Braşov District Court dismissed a request submitted by the applicant to replace the foreign witnesses who could not be heard, on the ground that the lawful requirements for witness replacement had not been met. It adjourned the proceedings for deliberations.",
"47. By a judgment of 26 June 2013 the Braşov District Court allowed in part an action lodged by the applicant ’ s wife. It took into account the children ’ s best interests and relied on the children ’ s testimonies of 14 December 2012, other documentary and testimonial evidence and a social inquiry report produced by the Braşov Guardianship Authority in respect of the children ’ s living conditions, their social and educational development, and their relationship with their father and his family since their departure from the U.S. It held that both spouses were responsible for the divorce. Also, it considered that a request by D.B. to maintain her married name even after the divorce had been finalised was in her best interests and those of the children. In awarding sole custody of the children to their mother, it ordered that the children live with their mother and that their father pay monthly maintenance. Moreover, it ordered the applicant to agree to passports being issued in his children ’ s names and to their occasional travel abroad accompanied by their mother. It granted the applicant visiting rights at their mother ’ s home. The applicant appealed against the judgment.",
"48. By a judgment of 13 December 2013 the Braşov County Court allowed in part the applicant ’ s appeal and amended the judgment of the first-instance court. In particular, it awarded the applicant joint custody of the children and yearly visiting rights for a month during the summer holiday and for a week during the winter holiday. It also granted the applicant the right to take the children to his home in Romania or the U.S. or to leave the country with them during the periods they were allowed to spend time together. The applicant ’ s wife appealed on points of law against the judgment.",
"49. By a final judgment of 12 March 2014 the Braşov Court of Appeal allowed his wife ’ s appeal on points of law against the judgment of 13 December 2013, quashed the said judgment and upheld the judgment delivered by the first-instance court on 26 June 2013."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMETS",
"50. The relevant provisions of Law no. 369/2004 on the enforcement of the Hague Convention, in so far as relevant, read as follows:",
"...",
"Article 6",
"The proceedings under Article 3 of the Convention seeking the return of the child living in Romania shall be examined urgently.",
"...",
"Article 9",
"...",
"The hearing of the child who is ten years old is mandatory. The child who is not ten years old may be heard by the court if it considers that it is necessary.",
"A psychologist attached to the Bucharest social assistance and child protection agencies shall attend the hearing of a child and shall produce a psychological report if requested by the court.",
"...",
"Article 12",
"The judgment shall be reasoned within ten days from the date it was delivered on.",
"The judgment is subject to appeal on points of law before the Bucharest Court of Appeal within ten days from the date it was communicated to the parties. ”",
"51. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows.",
"“The States signatory to the present Convention,",
"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,",
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,",
"Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions -",
"...",
"Article 1",
"The objects of the present Convention are -",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...",
"Article 3",
"The removal or the retention of a child is to be considered wrongful where -",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 4",
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.",
"Article 5",
"For the purposes of this Convention -",
"(a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child ’ s place of residence;",
"(b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child ’ s habitual residence.",
"...",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -",
"(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.",
"Article 14",
"In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.",
"...",
"Article 16",
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.",
"Article 17",
"The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.",
"...",
"Article 19",
"A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.",
"Article 20",
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"...”",
"52. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply the Convention a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of this Convention, as this matter is to be discussed before the relevant courts in the State of the child ’ s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific conception of “the child ’ s best interests”. However, as the child ’ s removal may be justified for objective reasons which have to do either with his or her person, or with the environment with which he or she is most closely connected, the Convention allows for certain exceptions to the general obligations on the States to ensure an immediate return (§ 25). Since the return of the child is the basic principle of the Convention, the exceptions to the general duty to secure it form an important element in understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive their justification from three different principles (§ 27). Firstly, the authorities of the requested State are not bound to order the return of the child if the person requesting the return was not actually exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28). Secondly, paragraphs 1b and 2 of Article 13 contain exceptions which clearly derive from a consideration of the interests of the child, to which the Convention gives a definite content. Thus, the interest of the child in not being removed from his or her habitual residence without sufficient guarantees of stability in the new environment gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out those exceptions, also emphasises the margin of appreciation inherent in the judicial function.",
"53. In 2003 the HCCH published Part II of the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention ’ s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”).",
"54. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, in so far as relevant reads as follows:",
"Preamble",
"(17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]”",
"Article 11",
"“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.",
"[...]",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged [ ... ]”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"55. The applicant complained, under Articles 6, 8, 14, 17 and 18 of the Convention, Article 1 of Protocol No. 12 and Article 5 of Protocol No. 7, that the Romanian courts had misinterpreted the provisions of the Hague Convention and relied exclusively on the opinion of his children to deny him their return to the U.S., and had failed to provide sufficient reasons for ignoring the injunctions delivered by the U.S. courts and the documents submitted by the U.S. authorities. He also complained that the courts had failed to expedite the proceedings, which had prevented him from exercising his parental rights as the children had remained under their mother ’ s control. He had therefore incurred much higher legal costs than the children ’ s mother. Also by unlawfully transferring the de facto jurisdiction on custody matters to the courts in the State of refuge, the Romanian courts had discriminated against him and placed him at a substantial disadvantage vis-à-vis his wife.",
"56. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I ). In this context, it notes that Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. Also, it observes that the complaint raised by the applicant under other Articles of the Convention is closely linked to his complaint under Article 8. Therefore, it considers that the applicant ’ s complaint may be examined only under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"57. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"58. The applicant submitted that at the time of the Hague Convention proceedings he had had joint custody of his children with his wife. However, the Romanian authorities failed to ensure the speedy return of his children to the U.S. in breach of his rights guaranteed by the European Convention on Human Rights (“the Convention”), even though they had acknowledged the unlawfulness of his children ’ s retention in Romania.",
"59. The applicant further contended that the relationship he enjoyed with his children belonged to the sphere of family life protected by Article 8 of the Convention. In addition, he contested the Government ’ s argument that the interference with his family life had been lawful under Article 13 § 2 of the Hague Convention. Moreover, by refusing to return his children to the U.S., the Romanian courts had forced him to become a party to divorce ‑ and ‑ custody proceedings in two different countries and had ignored the proceedings pending before the American courts. Furthermore, he had been unable to exercise his parental rights because of the geographical distance.",
"60. The applicant also submitted that the Hague Convention proceedings had been excessively lengthy, had been plagued by errors and amounted to a failure of the Romanian authorities to take any measures, including extra ‑ judicial ones, to help reunite him with his children. In addition, the domestic courts had refused to order the return of his children by relying exclusively on their opinion, even though the children did not have the required maturity to make such a decision. Moreover, the courts had negated the effect of the Hague Convention by misinterpreting its provisions and failing to strike a fair balance between the competing interests of the parties.",
"61. The Government submitted that the decision rendered by the domestic courts did not constitute an interference with the applicant ’ s right to respect for family life. In any event, even if the Hague Convention proceedings did amount to an interference with the applicant ’ s family life, that interference had a legal basis, namely Article 13 § 2 of the Hague Convention. It had also served the legitimate aim of protecting the children ’ s best interests.",
"62. The Government stressed that the domestic non-judicial bodies, in particular the Romanian Ministry of Justice, had represented the applicant actively and appropriately before the domestic authorities. The applicant had been involved in the decision - making process, had been represented throughout the proceedings by a legal representative of his choosing, had been informed about all the relevant procedural steps and had been given the opportunity to submit oral and written observations. In addition, the domestic courts had a wide margin of appreciation in respect of the factual circumstances of the case and were better placed to decide them. The courts relied on all the evidence adduced in the case, including witnesses ’ testimonies, a social inquiry report produced by the relevant authorities in respect of the children ’ s living conditions and the children ’ s statement. The wording of the domestic judgments clearly showed that the judges had had the children ’ s best interests at heart, as well as the need to ensure their psychological development, and that they had struck a fair balance between the parties ’ conflicting interests.",
"63. The Government also submitted that the Hague Convention proceedings had unfolded without unreasonable delays. The domestic courts had administered an extensive amount of evidence without periods of inactivity and although the case file had been remitted for retrial once, the judgments delivered by the courts had been promptly communicated to the parties.",
"2. The Court ’ s assessment",
"64. The Court reiterates that the mutual enjoyment by parents and children of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006).",
"65. In the sensitive area of family relations, the State is not only bound to refrain from taking measures that would hinder the effective enjoyment of family life, but, depending on the circumstances of each case, should take positive action in order to ensure the effective exercise of such rights. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007 ), bearing in mind, however, that the child ’ s best interests must be the primary consideration (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX) and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” ( see X v. Latvia [GC], no. 27853/09, § 95, 26 November 2013 ).",
"66. The Court recalls that it has already held that within the legal framework set up by the Hague Convention and the Council Regulation, if the children ’ s opinions must be taken into account, their opposition is not necessarily an obstacle to their return (see Raw v. France, no. 10131/11, § 94, 7 March 2013).",
"67. Notwithstanding the State ’ s margin of appreciation, the Court is called upon to examine whether the decision-making process leading to an interference was fair and afforded those concerned to present their case fully, and that the best interests of the child were defended (see Ignaccolo ‑ Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I, with further references, and Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV).",
"68. Moreover, the States ’ obligations under Article 8 of the Convention are to be interpreted in harmony with the general principles of international law, and, in the context of international child abduction, particular account must be given to the provisions of the Hague Convention (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Ignaccolo-Zenide, cited above, § 95).",
"69. To that end, the Court considers that a harmonious interpretation of the European Convention and the Hague Convention can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 133, ECHR 2010 ).",
"70. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child ’ s return, the courts must not only consider arguable objection to the child ’ s return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see X v. Latvia [GC], cited above, § 107 ).",
"71. Furthermore, as the Preamble to the Hague Convention provides for children ’ s return “to the State of their habitual residence”, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place.",
"72. The Court also reiterates that in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Iosub Caras, cited above, § 38). The delays in the procedure alone enable the Court to conclude that the authorities had not complied with their positive obligations under the Convention (see Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011).",
"73. In the instant case, while they acknowledged that their mother ’ s refusal to return them to their habitual residence in the U.S. had been unlawful within the meaning of Article 3 of the Hague Convention, the domestic courts dismissed the applicant ’ s request for the return of his children. The Court finds that, in spite of the Government ’ s submission to the contrary, such a measure constituted an interference with the applicant ’ s right to respect for family life (see Iosub Caras, cited above, § 30, and Karrer v. Romania, no. 16965/10, § 42, 21 February 2012 ).",
"74. Notwithstanding the applicant ’ s arguments, the Court accepts, however, the Government ’ s submissions that the interference was provided for by law, namely Article 13 § 2 of the Hague Convention, which entered into force for Romania in September 1992 and forms part of its domestic law, and that it pursued the legitimate aim of protecting the children ’ s best interests.",
"75. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above ‑ mentioned international instruments, and whether, when striking a balance between the competing interests at stake, the authorities acted swiftly and appropriate consideration was given to the children ’ s best interests, within the margin of appreciation afforded to the State in such matters.",
"76. The Court notes that the domestic courts examined whether the children ’ s retention to Romania had been justified and whether there existed any exceptions under the Hague Convention precluding their return to the U.S. In doing so, the courts examined the evidence submitted by the parties and found that the children ’ s father, who enjoyed joint custody of the children and had exercised it prior to their departure from the U.S., had not agreed to their retention in Romania. In addition, there was no grave risk that their return would expose them to physical or psychological harm or to an intolerable situation, in spite of the strict social and religious upbringings as well as the physical punishments argument the applicant ’ s wife had raised before the domestic courts (see paragraphs 26 and 32, above).",
"77. The Court also notes that the domestic court ’ s decision to refuse the children ’ s return to their State of habitual residence had been based on their objection to return. In this connection, the Court notes that the first-instance court had heard the children directly in the absence of any of their parents or relatives and after they had received psychological counselling. All the three children had freely stated that they objected to their return to the U.S. In addition, the domestic courts provided reasons why they considered that the children had attained a sufficient degree of maturity for their opinions to be taken into consideration and for refusing to distinguish between the situations of the three children on the basis of their age (see paragraph 33, above).",
"78. While, the Court would like to underline its concern with the fact that only one of the children had been over ten years old at the time, namely almost eleven, and met the minimum lawful age requirement for her opinion to be heard by the domestic courts, it is prepared to accept that the conditions for the domestic courts to be able to rely on the exception provided by Article 13 § 2 of the Hague Convention had been met. In particular, the children had objected to their return and they had been considered by the judicial authorities to be sufficiently mature for their statements to be taken into account. In addition, given the wording of the aforementioned Article of the Hague Convention, the Court can also accept that the opinion of the children can be an independent exception under the Hague Convention which, on its own, may support the exercise of discretion to refuse to order a return.",
"79. In terms of the weight the domestic courts gave to the children ’ s objections, the Court notes that according to the reasoning of the domestic courts they were decisive for their decision to refuse their return to the State of their habitual residence.",
"80. In this connection, the Court observes, however, that Article 13 § 2 of the Hague Convention or its interpretation by the Elisa Pérez-Vera Explanatory Report does not require a judge to automatically accede to the child ’ s stated wishes even if the said judge finds that the child has attained a sufficient degree of maturity (see paragraphs 51 and 52, above). Therefore, the Court considers that while the Convention recognizes that the objecting child should have a voice, it does not consider that voice to amount to a veto in the process of deciding whether he or she will be returned. Consequently, it appears that the domestic courts may be called to examine also other aspects of the child ’ s circumstances before exercising the discretion to refuse to order a return.",
"81. In this context the Court notes that the domestic courts also examined other aspects of the children ’ s circumstances. However, it is not entirely convinced that the domestic courts had sufficiently balanced the applicant ’ s interest of a right to family life against the competing interest of the other parties in the case and therefore had sufficiently protected the best interest of the children as defined in the light of the Hague Convention principles. In particular, the Court notes that when assessing the risks entailed by a potential separation of the children from their current environment, the last-instance court concluded that it amounted to a serious risk for them (see paragraph 33, above). Although, it is uncontested that in reaching its conclusion the last-instance court mentioned, without going into detail, the conclusions of the psychological evaluation reports available to the domestic case file, the Court notes that the said court gave no express consideration to the issue of whether the children could quickly re-adapt to a return in the U.S. Moreover, it does not appear that the courts attempted to examine if it would have been possible for the children to return to the U.S. accompanied by their mother and whether arrangements could have been made within the legal framework of the State of habitual residence or following agreements with the father for them to live together, separately from their father, pending the outcome of divorce and custody proceedings, and consequently whether such arrangements would have alleviated the serious risks mentioned by the court.",
"82. Such express considerations appear even more relevant given that according to the psychological evaluation report and the social investigation report submitted by the parties before the Court the opinion of the psychologist was confined to the harm to the child which would flow from an immediate separation from their mother (see paragraphs 15 and 18, above). The reports did not directly address the question of the children ’ s return or stated that it would be in any way harmful if they were to return to the U.S. accompanied by their mother and lived separately from their father. The fact that the applicant ’ s wife appeared to have refused the amiable settlement of the case prior to the initiation of the Hague Convention proceeding, does not amount in the Court ’ s view to a justification for a failure to clearly and duly consider the aforementioned aspect.",
"83. In addition, the Court notes from the outset that Article 11 of the Hague Convention imposes a six-week time-limit for a return decision, failing which the decision body may be requested to give reasons for the delay. The Court further notes that the European Union subscribes to the same philosophy, accepting delays in respect of the afore-mentioned time ‑ limit only in exceptional circumstances, in the framework of a system involving only EU Member States and based on a principle of mutual trust. Despite this recognised urgency, in the instant case a period of more than thirteen months elapsed from the date on which the applicant lodged his request for the return of the children to that on which the final decision was taken (see paragraphs 16 and 31, above).",
"84. The Court notes in this connection that the appellate court had quashed the judgment of the first-instance court on account of procedural flaws which had been independent of the applicant ’ s actions. Also the domestic authorities had allowed for a month and several days to lapse before they had re-registered the case on the fist-instance court ’ s docket. In addition, the first-instance court held the first re-hearing of the case only one month and several weeks after the file had been re-registered on its docket (see paragraphs 23-26, above).",
"85. The Court also observes that the Bucharest County Court failed to provide any explanation to the applicant for the length of the proceedings following his request of 12 February 2010 for a statement on the delay in the proceedings (see paragraph 29, above). In addition, no satisfactory explanation was put forward by the Government to justify the delays.",
"86. Consequently, the Court considers that the domestic authorities failed to act expeditiously in the proceedings to return the children, manifestly in breach of the applicable law.",
"87. In this connection, the Court notes that the domestic courts considered that a potential return of the children to the U.S. against their will would have destabilized them and would have subjected them to pressures which would have negatively affected their future development, particularly since the relationship between their parents had radically changed since they had left the U.S. (see paragraph 34, above).",
"88. The Court recalls that the interests of the child are paramount in such cases. Thus it may well have been justified, more than thirteen months after the removal from the U.S. of the applicant ’ s children, for the domestic courts to hold that the family situation they had been familiar with at the time of the departure had changed and that it was in their best interests to remain in Romania with their mother although, at that time, no final decision had established her residence there. However, where the Court accepts that a change in the relevant facts may exceptionally justify such a decision, it must be satisfied that the change was not brought about by the State ’ s actions or inactions (see, mutatis mutandis, Sylvester v. Austria, applications no. 36812/97 and 40104/98, § 59, 23 April 2003 ).",
"89. Having found that the time it took for the courts to adopt the final decision in the present case failed to meet the urgency of the situation, the Court considers that the change in the children ’ s circumstances was also considerably influenced by the slow reaction of the authorities.",
"90. In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention.",
"91. It follows that there has been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"92. The applicant complained that the divorce - and - custody proceedings instituted against him by his wife had been unreasonably lengthy. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:",
"“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”",
"A. Admissibility",
"93. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"94. The applicant submitted that the divorce - and - custody proceedings instituted against him by his wife had been excessively lengthy. While he acknowledged that the proceedings had been complex and unusual, he argued that the complexity of the case was not sufficient to justify the delays. He further submitted that, unlike the authorities, he had not been responsible for any of the repeated procedural delays and could not be held responsible for using the available means to present his case.",
"95. The Government submitted that the present case was particularly complex considering the exceptional character of both the factual and the legal questions involved. In addition, the proceedings were not plagued by long periods of inactivity on the part of the authorities. The divorce ‑ and ‑ custody proceedings had been suspended for more than thirteen months Therefore, that thirteen - month period should not be taken into account when assessing the total length of the proceedings.",
"96. The Government contended that numerous procedural steps had been undertaken during the proceedings following requests by the applicant, including attempts to hear witnesses residing in the U.S. by means of international rogatory commission proceedings and examination of preliminary objections raised by him concerning the alleged lack of jurisdiction of the Romanian courts. Therefore, the applicant had substantially contributed to the length of the proceedings.",
"97. The Government further submitted that the length of the proceedings had not been excessive and had not had a negative impact on the applicant.",
"2. The Court ’ s assessment",
"98. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).",
"99. While it is not the Court ’ s task to determine whether the proceedings in which the applicant was involved were properly stayed (see, mutatis mutandis, Broka v. Latvia, no. 70926/01, § 24, 28 June 2007), delays caused by the adjournment or suspension of proceedings pending the outcome of another case can be attributable to the State (see, mutatis mutandis, König v. Germany, 28 June 1978, §§ 104-05, Series A no. 27). Furthermore, when assessing the relevance and reasonableness of an adjournment of a case pending the outcome of another case, the Court must take into account what is at stake for the persons involved (see, mutatis mutandis, Tibbling v. Sweden, no. 59129/00, § 32, 11 October 2005).",
"100. The Court notes that the divorce-and-custody proceedings instituted against the applicant by his wife lasted from 14 October 2008 to 12 March 2014. Consequently, the period to be taken into consideration is five years and five months for three levels of jurisdiction.",
"101. The Court considers that there have been repeated procedural delays over the entire course of the proceedings. It can accept that the case against the applicant could be regarded as complex and that the applicant was also responsible for some of the delays. That being said, it cannot but note that the proceedings, including the period in which they were adjourned pending the outcome of the Hague Convention proceedings, have lasted for more than four years and eight months only before the first ‑ instance court. Given what was at stake for the applicant and the fact that it has already found that the Hague Convention proceedings were excessively lengthy, the Court considers that the length of this period and the overall length of the proceedings cannot be justified by the complexity of the case and the adjournments caused by the applicant alone. In the Court ’ s opinion, the length of the proceedings can only be explained by the failure of the domestic authorities to deal with the case diligently (see Gümüşten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).",
"102. Having regard to all the evidence before it, the Court finds that the length of the divorce-and-custody proceedings at issue does not satisfy the “reasonable time” requirement.",
"103. There has accordingly been a breach of Article 6 § 1 of the Convention.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"104. The applicant complained, under Article 6 of the Convention, of the unfairness of the Hague Convention proceedings, in particular that the interlocutory judgment of 13 April 2009 had been missing from the domestic case file and that the domestic authorities had failed to send him a copy of the final judgment of 25 March 2010. In respect of the divorce ‑ and ‑ custody proceedings instituted against him by his wife, after the case had been communicated to the Romanian Government he complained under the same Article that the domestic courts ’ refusal to hear foreign witnesses on his behalf through the international rogatory commission proceedings or to expedite the said proceedings, and the fact that he had had to incur high financial costs in order to submit the relevant testimonial and documentary evidence, had amounted to a breach of his right to a fair trial and prevented him from defending his rights.",
"105. The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46",
"106. Article 46 of the Convention provides, in so far as relevant:",
"“ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.",
"... ”",
"107. Given the special circumstances of the present case, in particular, the subsequent developments in the children ’ s and their family ’ s situation, the Court does not consider that its judgment should imply the return of the applicant ’ s children to the U.S. (see mutatis mutandis Pontes v. Portugal, no. 19554/09, § 1 10, 10 April 2012).",
"B. Article 41",
"108. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"109. The applicant claimed 22,559 United States dollars (USD) (approximately 16,500 euros (EUR)) in respect of pecuniary damage and USD 180,000 (approximately EUR 131,600) in respect of non-pecuniary damage. He argued that the pecuniary damages claimed were for costs incurred for legal representation and transportation related to the parallel divorce-and-custody proceedings which he had had to institute before the U.S. courts. In addition, he contended that he had suffered non ‑ pecuniary damage owing to the anxiety and distress he had experienced as a result of the excessively lengthy proceedings before the Romanian courts and the separation from his children.",
"110. The Government submitted that the pecuniary damages claimed by the applicant actually represented costs and expenses incurred by him and should be examined accordingly. They contended that the finding of a violation would provide sufficient just satisfaction with regard to non ‑ pecuniary damage.",
"111. The Court shares the Government ’ s view that the pecuniary damages claimed by the applicant represent costs and expenses incurred by him and considers that the claim should be examined accordingly. Consequently, it finds no reason to award the applicant any sum under this head.",
"112. The Court considers that the applicant must have suffered distress as a result of the Hague Convention and the divorce-and-custody proceedings in which he was involved. It considers that sufficient just satisfaction would not be provided solely by a finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 9,750 in respect of non-pecuniary damage, plus any tax that may be chargeable.",
"2. Costs and expenses",
"113. The applicant also claimed a total of EUR 27,497, including the aforementioned EUR 16,500, for the costs and expenses incurred before the domestic Romanian and American courts, and EUR 2,365 for those incurred before the Court. He submitted copies of invoices and court judgments supporting part of his claims.",
"114. The Government submitted that the amount claimed by the applicant was excessive and was not fully supported by the documents submitted by him.",
"115. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the above criteria, the supporting documents submitted by the applicant, the fact that part of the expenses concerned proceedings in countries outside the Court ’ s jurisdiction and the nature of the issues dealt with, the Court considers it reasonable to award the sum of EUR 8,000 to cover the applicant ’ s costs and expenses.",
"3. Default interest",
"116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
48 | R.S. v. Poland | 21 July 2015 | The applicant, whose children were retained in Poland by their mother, argued that the Polish courts had failed to correctly apply the Hague Convention of 25 October 1980 when deciding on his request for the return of his children to Switzerland. Notably, the courts, basing their decision on the custody decision issued in the divorce proceedings in Poland, had allegedly failed to take into account the fact that he had never given his agreement to their permanent stay in Poland and that the children’s habitual place of residence at that time had been in Switzerland. | The Court held that there had been a violation of Article 8 of the Convention. Having regard to the circumstances of the case seen as a whole, it was of the view that Poland had failed to secure to the applicant the right to respect for his family life. The Court observed in particular that, in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them. In the applicant’s case, it found that the time it took for the Polish courts to adopt the final decision had failed to meet the urgency of the situation. Moreover, it had not been argued, let alone shown, either in the domestic proceedings or before the Court, that the children’s return to Switzerland would have not served their best interest. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969 and lives in Zurich.",
"6. The applicant is a Polish national. He married M.S. , another Polish national, in 1994. Shortly afterwards they moved to Switzerland where the applicant works as a software specialist. In 1998 their son P. was born and in 2002 their daughter J.",
"7. In autumn 2007 the applicant began an affair with H.",
"8. In February 2008 the applicant and M.S. decided to separate and he moved to another flat. However, the applicant ’ s flat was located opposite the flat of his family and he kept regular contacts with his children.",
"A. Divorce proceedings",
"9. On 24 September 2008 M.S. filed a petition for divorce with the Kraków Regional Court. M.S. applied for an interim order granting her temporary custody over P. and J. for the duration of the divorce proceedings. She had also informed the court that she would be in Kraków between 4 and 28 October 2008.",
"10. On 4 October 2008 M.S. took the children to Poland for school holidays. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates.",
"11. On 15 October 2008 the Regional Court granted the request of M. S. for an interim custody order. The applicant was neither informed of nor summoned to the court session concerning this order.",
"12. Subsequently, on 24 October 2008 the applicant lodged a request for return of his children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 20-30 below).",
"13. On 12 November 2008 the applicant requested the Kraków Regional Court to stay the execution of the interim custody order of 15 October 2008. He also appealed against that order.",
"14. On 11 December 2008 the Kraków Regional Court dismissed the applicant ’ s request for stay of the execution of the interim order and instead stayed the divorce proceedings. The court referred to the pending proceedings under the Hague Convention (see below). The applicant ’ s appeal against this decision and against the interim custody order was dismissed by the Kraków Court of Appeal on 26 February 2009.",
"15. On 3 March 2010 the Kraków Regional Court gave an interim order and determined the applicant ’ s contacts with P. and J. for the duration of the divorce proceedings.",
"16. On 6 May 2011 the Kraków Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) submitted an expert report to the Kraków Regional Court. According to the report, M.S. should continue to exercise custody of the children as she had always been more involved in their upbringing. Moreover, the experts considered that another separation from a parent and another change of environment would be detrimental to the children. They further noted that the applicant should be allowed to have contacts with his children outside the territory of Poland as long as there was no risk of destabilisation of their situation. He should have the right to spend with them half of summer vacation, holidays and weekends and to visit them 1-2 times a month.",
"17. On 24 July 2012 the Kraków Regional Court dissolved the applicant ’ s marriage. It found that the applicant had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by M.S., whereas the parental rights of the applicant were limited to decisions regarding the children ’ s upbringing, health and education. He was authorised to have contacts with P. and J. two afternoons per week and two weekends per month. He was further ordered to pay child maintenance and alimony.",
"18. The applicant appealed. He argued, in particular, that, due to the fact that he resided in Switzerland, his visiting rights during holidays and summer vacation should have been regulated by the court.",
"19. On 15 March 2013 the Kraków Court of Appeal dismissed the applicant ’ s appeal and upheld the first instance ’ s judgment.",
"B. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction",
"20. On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention. It was transmitted to the Administrative Division of the Kraków Regional Court on 25 November 2008.",
"21. Subsequently, in a letter of 13 March 2009 the Swiss Central Authority confirmed that the applicant and M.S. had exercised joint custody over P. and J. The authority expressed the view that since the Swiss authorities had not been aware of any decision of Swiss courts or authorities limiting the applicant ’ s custody rights, the fact that the children stayed in Poland after 20 October 2008 without their father ’ s consent constituted a wrongful removal under Article 3 of the Hague Convention.",
"22. Meanwhile in Kraków, on 9 December 2008 a local assessment ( wywiad środowiskowy ) was conducted at the home of M. S. by a court ‑ appointed guardian with a view to establishing the children ’ s situation. The report confirmed that the children ’ s living conditions with their mother were very good and that they continued their education in private schools.",
"23. On 17 December 2008 the Kraków District Court held the first hearing in the proceedings under the Hague Convention. The court also gave an interim order and allowed the applicant to visit the children on that day in the afternoon.",
"24. On 5 January 2009 the court requested a psychologist to prepare a report concerning the children ’ s mental and emotional maturity and their capacity to express views on the matter of their return to Switzerland.",
"25. On 9 January 2009 another hearing took place.",
"26. On 21 January 2009 the expert submitted his report to the court.",
"27. On 27 January 2009 the District Court allowed the applicant another exceptional contact with his children. They were to stay with him from 30 January until 1 February 2009. However, the applicant was not allowed to leave Poland with the children.",
"28. On 11 February 2009 the Kraków District Court gave a decision and refused to grant the applicant ’ s request for the children ’ s return to Switzerland. The court referred to the applicant ’ s and M.S. ’ s consistent testimonies and the information included in the divorce file.",
"The court established that on 4 October 2008 M.S. had come to Poland together with P. and J. and the applicant had consented to this trip. On 20 October 2008 M.S. had not returned to Switzerland and stayed in Poland together with the children. The applicant had not accepted this decision.",
"The court subsequently stressed that in the proceedings under the Hague Convention it should be firstly established whether wrongful removal or retention took place. It further held that in the case at issue there had been no wrongful removal since the applicant had agreed to P and J ’ s trip to Poland on the 4 October 2008. With reference to the fact that M.S. failed to return on 20 October 2008 (the date agreed with the applicant), the court noted that she had been granted temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father ’ s consent. Consequently, M.S. could have decided to stay in Poland also after 20 October 2008 and there had been no wrongful retention in the case.",
"The court also considered that the interim custody order was not contrary to Article 16 of the Hague Convention, since the applicant ’ s request for return of his children had been received by the Kraków Regional Court only on 25 November 2008 while the custody order had been delivered on 15 October 2008.",
"Lastly, the court held that the refusal to grant the request for return was not contrary to Article 17 of the Hague Convention, since that provision concerned custody decisions delivered after the removal of a child.",
"29. On 24 March 2009 the applicant lodged an appeal against the first ‑ instance decision. He argued that the contested decision was in breach of Article 3 of the Hague Convention. He further argued that Article 17 of that Convention was also breached as the first-instance court had relied on a decision which was merely of a temporary character, whereas this provision expressly prohibited to refuse an application for return on the basis that a decision on custody was given in the country to which children were abducted.",
"30. On 2 June 2009 the Kraków Regional Court dismissed the applicant ’ s appeal. The court first refused to accept as evidence the document from the Swiss Central Authority since that document failed to refer to the interim custody order of 15 October 2008. It its decision, the Kraków Regional Court referred in particular to the events leading to the breakdown of the applicant ’ s marriage. It also noted that when M.S. had discovered that the applicant ’ s new partner had been pregnant, she had decided to institute divorce proceedings. However, she had been informed by a Swiss lawyer that in view of the applicant ’ s lack of consent to a divorce, she could only have filed a petition in Switzerland after two years of separation. For these reasons she had decided to file a petition for divorce with the Polish courts. The court further noted that on 4 October 2008 M.S. had arrived in Kraków with her children in order to spend two weeks of school holidays there, after having obtained the applicant ’ s consent for their trip. The court further stressed that M.S. decided to stay in Poland permanently only when she was granted temporary custody. Consequently, in the court ’ s opinion the removal of the children was not a wrongful removal within the meaning of Article 3 of the Hague Convention.",
"The decision was served on the applicant on 28 July 2009. It is final."
] | [
"II. RELEVANT LAW AND PRACTICE",
"1. Relevant International Law",
"31. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) was published in the Polish Official Journal on 25 September 1995. It provides, in so far as relevant:",
"Article 3",
"“ The removal or the retention of a child is to be considered wrongful where -",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. ”",
"Article 11",
"“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. ”",
"Article 12",
"“ Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. ”",
"Article 13",
"“ Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -",
"(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. ”",
"Article 14",
"“ In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ”",
"Article 15",
"“ The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. ”",
"Article 16",
"“ After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. ”",
"Article 17",
"“ The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ”",
"Article 19",
"“ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. ”",
"2. Explanatory Report to the Hague Convention",
"32. The most relevant part of the Explanatory Report to the Hague Convention by Elisa Pérez-Vera (hereafter: “the Explanatory Report”) reads as follows:",
"Article 3 – The unlawful nature of removal or retention",
"“71 ... from the Convention ’ s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention ’ s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.”",
"Article 17 — The existence of a decision on custody in the requested State",
"“122. The origins of this article clearly demonstrate the end pursued. The First Commission initially adopted a provision which gave absolute priority to the application of the Convention, by making the duty to return the child prevail over any other decision on custody, which had been issued or was likely to be issued in the requested State. At the same time, it accepted the possibility of a reservation allowing the return of the child to be refused, when its return was shown to be incompatible with a decision existing in the State of refuge, prior to the ‘ abduction ’. The current text is therefore the result of a compromise which was reached in order to eliminate a reservation in the Convention, without at the same time reducing the extent of its acceptability to the States. In this way, the original provision was recast by emphasizing that the sole fact that a decision existed would not of itself prevent the return of the child, and by allowing judges to take into consideration the reasons for this decision in coming to a decision themselves on the application for the child ’ s return.",
"123. The solution contained in this article accords perfectly with the object of the Convention, which is to discourage potential abductors, who will not be able to defend their action by means either of a ‘ dead ’ decision taken prior to the removal but never put into effect, or of a decision obtained subsequently, which will, in the majority of cases, be vitiated by fraud. Consequently, the competent authority of the requested State will have to regard the application for the child ’ s return as proof of the fact that a new factor has been introduced which obliges it to reconsider a decision which has not been put into effect, or which was taken on the basis of exorbitant grounds of jurisdiction, or else failed to have regard to the right of all the parties concerned to state their case. Moreover, since the decision on the return of the child is not concerned with the merits of custody rights, the reasons for the decision which may be taken into consideration are limited to those which concern ‘ the application of the Convention ’. A situation brought about by a decision issued by the authorities of the State of a child ’ s habitual residence prior to its ‘ abduction ’ and which granted custody to the ‘ abductor ’, would normally be resolved by applying article 3 of the Convention, since the existence of a claimed right to custody must be understood in accordance with the law of that State.”",
"3. Convention No. 34 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures For The Protection of Children, prepared within the framework of The Hague Conference on Private International Law",
"33. Article 7 of this Convention defines wrongful removal of a child as follows:",
"“ (1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and",
"a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.",
"(2) The removal or the retention of a child is to be considered wrongful where -",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"(3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child. ”",
"4. Relevant Domestic Law",
"34. The 1964 Code of the Polish Code of Civil Procedure (Kodeks Postępowania Cywilnego) in Article 577 provides as follows:",
"“The custody court can change its decision if the best interests of the person it concerns so require.”",
"5. Relevant Swiss Law",
"35. Article 85 of the Federal Act on Private International Law of 18 December 1987, in so far as relevant, reads:",
"“ 1. In matters of child protection by Swiss judicial or administrative authorities applicable law and the recognition and enforcement of foreign decisions or measures are governed by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures For The Protection of Children. ( ... )",
"2. The Swiss judicial or administrative authorities Swiss shall have jurisdiction where protection of a person or property so requires. ”",
"36. The Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults of 21 December 2009, provides, in so far as relevant:",
"Art. 1 Federal central authority",
"“ 1. The Federal Office of Justice (\"the Office\") is the federal central authority in charge of implementing the conventions listed in the preamble.",
"2. The Office shall perform the tasks set out in the 1980 Hague Convention and the 1980 European Convention. ”",
"Art. 2 Cantonal central authorities",
"“ Each canton shall designate a central authority responsible for implementation of the 1996 and 2000 Hague Conventions. ”",
"Art. 5 Return and best interests of the child",
"“ Under Article 13 paragraph 1 letter b of the 1980 Hague Convention, the return of a child places him or her in an intolerable situation where:",
"a. placement with the parent who filed the application is manifestly not in the child ’ s best interests;",
"b. the abducting parent is not, given all the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction or this cannot reasonably be required from this parent; and",
"c. placement in foster care is manifestly not in the child ’ s best interests. ”",
"6. Relevant Case-Law of Various Jurisdictions on the Hague Convention",
"37. The Swiss Federal Tribunal has held in a number of cases, with regard to consent and acquiescence, that left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible (see 5.P367/2005; 5.P380/2006; 5P.1999/2006).",
"38. The High Court of the United Kingdom held, in the case N. v. N. [1995] 1 FLR 107, that abducting parents should not be empowered to defeat the purpose of the Hague Convention by manipulation.",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION",
"39. The applicant complained that there was a breach of his right to respect of family life in that the domestic courts failed to correctly apply the Hague Convention criteria when deciding on his request for a return order. The complaint falls to be examined under Article 8 of the Convention. He also claimed under Article 6 of the Convention that the proceedings under the Hague Convention had been unfair. Articles 6 and 8 of the Convention provide, in so far as relevant:",
"Article 6 § 1",
"“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of thi s right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"40. The Court firstly notes that the complaints raised by the applicant are essentially directed against the merits of the decision, concerning the issue of an alleged international abduction of children. The Court further considers that the main legal issue raised by the application concerned the applicant ’ s right to family life as provided for by Article 8 of the Convention. It therefore considers that its examination should exclusively address the issue raised under Article 8 of the Convention and that therefore it is not necessary to examine whether there has also been a violation of Article 6 § 1 of the Convention (see Raban v. Romania, no. 25437/08, § 23, 26 October 2010)",
"41. Consequently, the Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The applicant ’ s submissions",
"42. The applicant submitted that the domestic courts had failed to apply the Hague Convention criteria when deciding his request for return of the children. He maintained that the retention of the children was wrongful, as confirmed by the competent Swiss authorities.",
"43. The applicant further pointed that the proper application of the Hague Convention should have consisted of two stages. First the court should have assessed whether there had been wrongful removal or retention. Secondly, the court should have assessed the positive and negative prerequisites of the return of the children.",
"44. In the applicant ’ s opinion, in the present case the domestic courts failed to assess the wrongfulness of retention of children in Poland in the light of the law governing the children ’ s habitual place of residence. In addition, they had failed to assess the prerequisites of the return of children based on their own findings in the proceedings regarding the return of the children. Instead the court had based its decision on the custody decision issued in the divorce case.",
"45. He further argued that when deciding what was in the children ’ s best interest, the Polish courts failed to assess the children ’ s situation in case of their return to Switzerland.",
"46. He also submitted that the decision refusing the return of his children to Switzerland had been issued under the influence of a practice favouring granting custody to mothers.",
"2. The Government ’ s submissions",
"47. The Government submitted that the proceedings at issue had been very complex and of a sensitive nature. Furthermore, they had been important for the applicant as they had concerned close family matters.",
"48. They further stressed that while the children ’ s “habitual residence” for the purposes of the Hague Convention had been in Switzerland, the applicant had given his consent for the children ’ s journey to Poland from 4 to 20 October 2008, which had rendered Article 3 of the Hague Convention inapplicable.",
"49. In addition, they stressed that the children remained in Poland on the basis of the interim order of 15 October 2008. Consequently, no wrongful removal or retention took place.",
"50. The Government further maintained that inapplicability of Article 3 of the Hague Convention had not been the sole argument that had led the national jurisdiction to refuse to order the return of the children. The other arguments repeated by the domestic courts had been the children ’ s best interest and the fact that the children had integrated into their new environment successfully which, in their opinion, had made the exception provided in Article 13 § 1 ( b ) of the Hague Convention applicable.",
"51. The Government argued that the domestic courts had taken into consideration the parties ’ arguments concerning the consent given by the father to take the children to Poland. Evidence had been obtained from both parties in the proceedings. The courts had examined documents submitted by the parties, expert reports, psychological evaluations of the children and witness testimonies.",
"52. The Government concluded that there had been no arbitrariness in the way the case was examined. The Kraków Regional Court had given a decision with particular consideration to the principle of the best interest of the children ’ s who at that time had been very well - integrated into their new environment.",
"3. The Court ’ s assessment",
"53. The Court notes, firstly, that it is common ground that the relationship between the applicant and his children falls within the sphere of family life under Article 8 of the Convention.",
"54. The Court reiterates that the mutual enjoyment by parents and children of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no.71099/01, § 70, 5 April 2005, and Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006).",
"55. While the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in an effective “respect” for family life (see, for example, Chabrowski v. Ukraine, no. 61680/10, § 104, 17 January 20 13, with further references). Positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for rights guaranteed by this provision even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 110, ECHR 2007 ‑ I).",
"In this area the decisive issue is whether a fair balance was struck between the competing interests at stake – those of the child, the two parents and public order – within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007), bearing in mind, however, that the child ’ s best interests must be the primary consideration (see X v. Latvia [GC], no. 27853/09, § 95, 26 November 2013).",
"56. On the facts of the present case, the Court observes that the primary interference with the applicant ’ s right to respect for his family life may not be attributed to an action or omission by the respondent State but rather to the actions of the mother, a private party, who has retained the children in Poland ( López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014).",
"57. It therefore remains to be ascertained whether there were any positive obligations on the part of the respondent State that required to be taken with a view to securing to the applicant his right to respect for his family life and, if so, whether any such positive obligations have been complied with by the respondent State.",
"58. The Court has held in the past that the State ’ s positive obligations under Article 8 include a right for parents to have access to measures which will enable them to be reunited with their children and an obligation on the national authorities to take such action (see Chabrowski, cited above, § 105).",
"59. As to the ensuing question whether in discharging its obligations under the Hague Convention Poland has complied with its positive obligations under Article 8 of the Convention, the Court finds it opportune, at the outset, to refer to the summary of the general principles applicable in any assessment under the Convention of complaints concerning proceedings under the Hague Convention set out in its recent judgment in the case of X v. Latvia [GC] (cited above, §§ 99-108).",
"60. In respect of those general principles, the Court would observe, in particular, that the extent of its jurisdiction under Article 32 of the Convention is limited to matters concerning the interpretation and application of the Convention and the Protocols thereto. Nevertheless, in the area of international child abduction, the obligations imposed on the Contracting States by Article 8 of the Convention must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see X v. Latvia [GC], cited above, § 93, with further references).",
"61. Under Article 3 of the Hague Convention, the removal or retention of a child is to be considered “wrongful” where it is in breach of rights of custody attributed to a person under the law of the State in which the child was “habitually resident” immediately before the removal or retention (see paragraph 3 1 above).",
"62. Furthermore, it is relevant to have regard to the Explanatory Memorandum to this Article, referred in paragraph 32 to above, which emphasizes that “[f] rom the Convention standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law and has interfered with their normal exercise.” The Memorandum further explains that the Hague Convention essentially “seeks ( ... ) to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.”",
"63. The Court notes that in the present case the children ’ s mother left Switzerland where the children were habitually resident at that time on 4 October 2008 for two-week school holidays. She promised to return with them on 20 October 2008. The applicant had agreed for them leaving Switzerland for that purpose and consented to the travelling dates. Hence, the Court can accept that the children ’ s removal could reasonably be regarded as not being in breach of Article 3 of the Hague Convention and that the domestic courts did not err in law in referring to the applicant ’ s agreement and considering that the removal as such, in the light of that agreement, was not “wrongful” in the sense of the Hague Convention, as explained in the Explanatory Report.",
"64. However, the same cannot be said of the subsequent “retention” of the children in Poland, quite evidently without the father ’ s consent, after the period of the two-week holiday had expired. The Court cannot overlook that already prior to leaving Switzerland on 4 October 2008 the children ’ s mother had already lodged, on 24 September 2008, a petition to divorce and applied for an interim custody order. She had also informed the court that she would be in Kraków after 4 October 2008. Subsequently, on 15 October 2008 she obtained that order.",
"65. When in 2009 the courts examined the applicant ’ s request for the children ’ s return under the Hague Convention, they refused to grant it as they considered that there had been no wrongful removal and retention of the children from Switzerland. They reached this conclusion referring to two factors: firstly, to the applicant ’ s prior agreement to the trip to Poland, and secondly, to the interim custody order given by the Polish courts at the mother ’ s request during that trip. It was that order which, in the view of the Polish courts, stripped the children ’ s retention of its wrongful character. However, it was not in dispute either before the domestic courts nor before the Court that prior to their leaving for Poland for what was originally planned as two-week holiday the children had habitual residence in Switzerland. Nor was it disputed that the applicant and M.S. jointly exercised custody rights over them under the law of that state (see paragraphs 6, 8 and 21 above). The Court also attaches weight in this respect to the relevant information contained in the letter of the Swiss Central Authority of 13 March 2009 (see paragraph 21 above).",
"66. The Court notes that the specific sequence of events in the present case, with the interim custody order of the Polish courts intervening already after the children had left Switzerland, resulted in the courts dealing with the applicants ’ application for their return in such a way as to consider their retention in Poland lawful, regardless of the fact that the applicant had never given his agreement to their permanent stay there and the courts were aware of it. Under the terms of the Hague Convention Hague Convention the wrongfulness of the removal and retention derives from the fact that such action has interfered with the normal exercise of the parental rights of one of their holders under the law of the State where the children previously had their habitual residence (that is, in the present case Switzerland), not under the law of the requested State (that is, in the present case, Poland). Yet, in the present case the Polish courts ignored the law of the previous habitual residence of the children and instead relied on their own law, that is the law of the requested State. In so doing, the Polish courts did not take this aspect of the case into consideration and, as a result of the mother ’ s unilateral act, the applicant was deprived of the protection he could reasonably expect to enjoy under its provisions.”",
"67. Hence, the provisions of the applicable law were in the present case applied in such a way as to render meaningless the applicant ’ s lack of consent for the children ’ s permanent stay in Poland.",
"68. The Court further observes that the children ’ s mother applied for an interim order granting her temporary custody for the duration of the divorce proceedings. The Kraków Regional Court granted her application on 15 October 2008. The Court notes that the applicant was neither notified of the mother ’ s application nor informed about the court session at which this application was to be examined. He was therefore not afforded an opportunity to be heard on the matter. As this decision was subsequently heavily relied on by the court dealing with the applicant ’ s request for the children ’ s return lodged under the Hague Convention, the Court accepts that the absence of procedural safeguards at this stage of the proceedings had an incidence on the outcome of the return proceedings (compare and contrast, Šneersone and Kampanella v. Italy, no 14737/09, § 100 -101, 12 July 2011, mutatis mutandis ).",
"69. It is not the task of this Court to interpret the terms of the Hague Convention or to substitute itself for the national courts in regard to the interpretation of the relevant law applicable within the domestic legal order. However, the Court cannot but conclude that the objective result in the present case is that the legitimate interests of the applicant, as the father of the children, were not taken into account in an adequate or fair manner in the judicial decision-making process in Poland.",
"70. Furthermore, in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see, among many other authorities, Iosub Caras v. Romania, no 7198/04, §§ 38, 27 July 2006; Penchevi v. Bulgaria, no. 77818/12, § 58, 10 February 2015 ). The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Indeed, Article 11 of the Hague Convention imposes a six-week time-limit for the required decision, failing which the decision body may be requested to give reasons for the delay ( Raw and Others v. France, no. 10131/11, § 83, 7 March 2013; M.A. v. Austria, no. 4097/13, § 109, 15 January 2015). Despite this recognised urgency, in the instant case over six months elapsed from the date on which the first applicant ’ s request for the return of the children was transmitted to the Kraków Court to the date of the final decision. No satisfactory explanation was put forward by the Government for this delay. It follows that the time it took for the courts to adopt the final decision failed to meet the urgency of the situation.",
"71. Finally, the Court notes that it has not been argued, let alone shown, either in the domestic proceedings or before the Court, that the children ’ s return to Switzerland would have not served their best interest on account of any alleged inappropriate behaviour or wrongdoing of the applicant in his role as a father.",
"72. Having regard to the circumstances of the case seen as a whole, the Court is of the view that the respondent State failed to secure to the applicant the right to respect for his family life.",
"73. There has therefore been a violation of Article 8 of the Convention.",
"74. Lastly, the Court observes that, as the children will soon reach the age of majority, there is no basis for the present judgment to be interpreted as obliging the respondent State to take steps ordering their return to Switzerland.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"75. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"76. The applicant claimed 2,000,000 euros (EUR) in respect of non ‑ pecuniary damage. He sought compensation for major disruption of his family life and rupture of close bonds with his children he had had before their retention in Poland by their mother and for substantial impact it had on his and his children ’ s lives.",
"77. He further claimed EUR 10,393 in respect of pecuniary damage. He referred to the costs of travel incurred by him in order to see his children and maintain the emotional ties with them in so far as it was possible in the circumstances between October 2008 and March 2013 until the final decision regarding divorce and custody was made.",
"78. The Government contested these claims. In respect of non-pecuniary claims it was of the view that they were exorbitant. As to the pecuniary damage the Government were of the view that they were partly unconnected with the violation alleged and partly unsubstantiated.",
"79. The Court discerns a causal link between the violation found and the pecuniary damage alleged, given that had the violation not occurred the applicant would not have had to travel to Poland to be with his children during the mentioned period (see Penchevi v. Bulgaria, no. 77818/12, § 83, 10 February 2015). However, on the basis of the documentary evidence before it, and in particular the flight bookings submitted by the applicant and concerning his travels to Cracow, the Court allows this claim only partially, awarding EUR 3,700 in respect of pecuniary damage.",
"80. However, it awards the applicant EUR 7,800 in respect of non ‑ pecuniary damage.",
"B. Costs and expenses",
"81. The applicant also claimed EUR 6,000 for the costs and expenses incurred before the Court.",
"82. The Government contested the claim.",
"83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, the Court rejects the claim for costs and expenses.",
"C. Default interest",
"84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
49 | M.A. v. Austria | 15 January 2015 | The applicant’s partner removed their daughter from Italy, where the family lived, to Austria in February 2008. He complained about the Austrian courts’ failure to enforce two judgments by Italian courts ordering the return of his daughter to Italy. | The Court held that there had been a violation of Article 8 of the Convention, finding that the Austrian authorities had failed to act swiftly, in particular in the first set of proceedings, and that the procedural framework had not facilitated the expeditious and efficient conduct of the return proceedings. In sum, the applicant had not received effective protection of his right to respect for his family life. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in 1968 and lives in Vittorio Veneto.",
"7. The applicant entered into a relationship with D.P., an Austrian national, and lived together with her in Vittorio Veneto. Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her.",
"8. The relationship between the applicant and D.P. deteriorated and the latter left the family home on 31 January 2008, taking their daughter with her.",
"9. The applicant applied to the Venice Youth Court ( tribunale per i minorenni di Venezia ) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving Italy without his consent.",
"10. On 8 February 2008 the Venice Youth Court issued a travel ban in respect of the applicant ’ s daughter. On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence.",
"11. On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant ’ s daughter, granted preliminary joint custody of the child to both parents, and authorised her to reside with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. In addition, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert.",
"12. According to the applicant, D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P. did not facilitate their organisation. At a later date visits ceased, allegedly due to D.P. ’ s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant ’ s ability to take care of his daughter.",
"13. According to the Government the applicant met his daughter fifteen times in Austria, where supervised visits took place between October 2008 and June 2009. Subsequently, he refused to travel to Austria without giving any reasons.",
"A. Proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and proceedings in Austria concerning custody of the applicant ’ s daughter",
"14. The applicant applied for assistance to secure his daughter ’ s return under the Hague Convention. His application was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court ( Bezirksgericht ), where proceedings began on 19 June 2008. Subsequently, the court appointed an expert.",
"15. On 3 July 2008, the Leoben District Court dismissed the applicant ’ s application for the return of the child under the Hague Convention. Referring to the expert ’ s opinion and having regard to the very young age of the child, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.",
"16. On 1 September 2008, the Leoben Regional Court ( Landes gericht ) set aside that decision because the applicant had not been duly heard in the proceedings.",
"17. On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his application for his daughter ’ s return, referring to the Venice Youth Court ’ s decision of 23 May 2008.",
"18. On 7 January 2009 the Leoben Regional Court dismissed the applicant ’ s appeal, finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention.",
"19. Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court, seeking an award of sole custody of the child.",
"20. On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and maintenance issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).",
"21. On 25 August 2009 the same court made a preliminary award of sole custody to D.P., referring to the child ’ s close links with Austria and the risk of danger to her well-being upon a possible return to Italy.",
"22. On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child.",
"B. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009",
"23. In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter ’ s return under Article 11(8) of the Brussels IIa Regulation.",
"24. In a judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child ’ s return to Italy. The child would live with her mother, should the latter decide to return to Italy with her. In that event the Vittorio Veneto social services department was required to provide them with accommodation. In addition, a programme for the exercise of the applicant ’ s access rights would have to be established. If the child ’ s mother did not wish to return to Italy, the child was to reside with the applicant.",
"25. The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child. However, the child ’ s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child ’ s best interests in a satisfactory manner.",
"26. On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation.",
"27. On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009. He was represented by counsel in these and all subsequent proceedings.",
"28. On 12 November 2009 the Leoben District Court dismissed the applicant ’ s request for enforcement of the Venice Youth Court ’ s order to return the child. It noted that the child ’ s mother was not willing to return to Italy with her. However, the child ’ s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.",
"29. On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant ’ s request for enforcement.",
"30. The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was irrelevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child ’ s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They were not to establish anew whether the child ’ s return would be contrary to her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement.",
"31. D.P. lodged an appeal on points of law with the Supreme Court ( Oberster Gerichtshof ) on 16 February 2010.",
"32. On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation.",
"33. On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court ’ s judgment of 10 July 2009. It found, in particular, that :",
"(1) a provisional measure [ such as the one issued by the Venice Youth Court in 2008] did not constitute a ‘ judgment on custody that does not entail the return of the child ’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed;",
"(2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to custody of the child;",
"(3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member State of origin and had ordered the return of the child; and",
"(4) enforcement of a certified judgment [ordering the child ’ s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin, which also had to hear any application to suspend the enforcement of its judgment.",
"34. On 13 July 2010 the Supreme Court dismissed D.P. ’ s appeal on points of law. It noted that according to the CJEU ’ s ruling the Austrian courts ’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to conduct any review of the merits of the decision. If D.P. asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect.",
"35. The Supreme Court noted that it was now for the first- instance court to enforce the Venice Youth Court ’ s judgment. In doing so, it had to take into account the fact that the Venice Youth Court had in the first place envisaged that the child should reside with her mother upon her return to Italy and had ordered the Vittorio Veneto social services department to make accommodation available for them. The first- instance court would therefore have to ask the applicant to submit appropriate evidence, in particular confirmation from the Venice Youth Court or Vittorio Veneto municipal council, that accommodation was indeed available. The first- instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, the first- instance court would, upon the applicant ’ s request, have to order coercive measures for the child ’ s return, while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to Italy with the child.",
"36. On 31 August 2010 the Venice Youth Court refused to grant an application by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant asked the Leoben District Court to order his daughter ’ s return to Italy.",
"37. The applicant claimed that he had offered to make accommodation (apparently a flat belonging to him) available to D.P. and his daughter, but that the Leoben District Court had found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009.",
"38. On 17 February 2011 the Leoben District Court asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the Vittorio Veneto social services department, as required by the Venice Youth Court ’ s judgment of 10 July 2009.",
"39. By letter of 22 March 2011 the Austrian Federal Ministry of Justice, as Central Authority, informed its Italian counterpart accordingly and also noted that to date the condition had not been complied with. A similar letter was sent to the Italian Central Authority on 27 May 2011. Three further letters with similar content were sent to the Italian Central Authority prior to November 2011.",
"C. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 23 November 2011",
"40. By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P. ’ s custody rights and awarded the applicant sole custody of the child. It further ordered the child ’ s return to Italy to reside with the applicant in Vittorio Veneto. The court ordered the Vittorio Veneto social services department – if need be in co-operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment.",
"41. The Venice Youth Court referred to its decision of 23 May 2008, which had been aimed at preserving the child ’ s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to a lack of co-operation from the mother. It had therefore ordered the child ’ s return to Italy in its judgment of 10 July 2009. It further considered that D.P. had unlawfully removed the child to Austria and had subsequently deprived her of contact with the applicant without good reason. She had thus acted contrary to the child ’ s best interests. It therefore found that sole custody was to be awarded to the applicant. Given that to date any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her, but considered that the damage caused by growing up without her father would weigh even heavier. The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child ’ s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention.",
"42. D.P. did not appeal against this judgment.",
"43. On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court ’ s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation.",
"44. On 3 May 2012 the Leoben District Court dismissed the applicant ’ s request for enforcement of the Venice Youth Court ’ s order for the child ’ s return. Referring to the Supreme Court ’ s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return.",
"45. The applicant appealed. He submitted, in particular, that the Venice Youth Court ’ s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she was to reside with him.",
"46. On 15 June 2012 the Leoben Regional Court granted the applicant ’ s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply.",
"47. The Regional Court found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The mother ’ s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court ’ s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the award of custody made by the Judenburg District Court on 8 March 2010 could not prevent the enforcement of the Venice Youth Court ’ s judgment. The latter had retained its competence to rule on custody matters, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation.",
"48. D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court.",
"49. On 13 September 2012 the Supreme Court rejected D.P. ’ s extraordinary appeal on points of law, as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed with the enforcement of the main judgment. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return had been met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the issue of whether a return would endanger the child ’ s well-being had to be raised before the competent court of the requesting State. D.P. ’ s argument that the child ’ s return would lead to serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts, but rather had to be raised before the competent Italian courts.",
"50. On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, apparently on account of a change of residence by D.P. and the child.",
"51. On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child being traumatised, especially if the parents ’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution. Accordingly, he asked both parents to indicate within two weeks whether they were ready to take part in the proposed hearing. The judge further noted that if the parents were not willing to take part in the hearing, the enforced return of the child would be arranged. In this connection, the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child.",
"52. On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to take part in a hearing with the child ’ s mother, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that D.P. travel to Italy with the child to hand her over. He therefore asked D.P. to either set a pick-up date in Austria or to inform him of a date when she would bring the child to Italy.",
"53. On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court ’ s competence had not become final. She therefore asked the court to await the decision on her appeal before taking any further steps.",
"54. In the related case brought before the European Court of Human Rights by the mother of the child ( Povse v. Austria (dec.), no. 3890/11, 18 June 2013), the Court granted a request for interim measures on 4 December 2012. It asked the Government to stay the child ’ s return to Italy. Having obtained information from the Austrian and Italian Governments and from the applicants, the Court lifted the interim measure on 18 February 2013.",
"55. On 4 April 2013 the applicant ’ s counsel requested that the enforcement proceedings be continued.",
"56. On 25 April 2013 the Wiener Neustadt District Court decided to continue the enforcement proceedings and, on 30 April 2013, requested that the parties submit their views within two weeks in order to reach a comprehensive solution for the benefit of the child. According to the Government, the applicant refused to contribute to that process.",
"57. In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would set a date within that timeframe for the applicant to pick up the child in Austria. Furthermore, the District Court, referring to the Supreme Court ’ s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any issues relating to the child ’ s well-being. It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish the school year in Austria.",
"58. As D.P. did not comply with the order to hand over the child, an attempt to enforce it by means of coercive measures was made in the early hours of 24 July 2013 without prior notice. The attempt, in which the judge, trained bailiffs and police officers participated, was unsuccessful, as D.P. and the child were not present at their place of residence. The applicant had been informed of the planned enforcement and was present.",
"59. On 9 August 2013 D.P. asked the Venice Youth Court to stay the enforcement of its judgment of 23 November 2011. Furthermore, she sought an award of sole custody in her favour. She alleged that she had not been adequately heard in the initial proceedings. Furthermore, she asserted that there had been a change of circumstances, in that her daughter was fully integrated into her living environment in Austria and had formed bonds with D.P. ’ s family, consisting of her mother, the latter ’ s partner and her younger half-brother. There had been no contact between father and child for a lengthy period and the child had no knowledge of Italian. D.P. submitted an expert opinion, according to which the child ’ s return to her father through the use of coercive measures would cause serious harm to the child.",
"60. On 14 August 2013 the Wiener Neustadt District Court dismissed D.P. ’ s application for a stay of enforcement, but decided to provisionally refrain from returning the child until the Venice Youth Court gave a decision on D.P. ’ s action before it.",
"61. In his observations of 18 October 2013 the applicant claimed that he had not yet been duly notified of the fresh proceedings before the Venice Youth Court. The Government, in their submissions of 18 November 2013, stated that the proceedings were pending before the Italian courts and that the parties had been notified of the dates of hearings. Moreover, the Government submitted that the applicant had not taken advantage of numerous opportunities to re- establish communication between himself and his daughter.",
"62. According to information provided by the applicant in a letter of 17 November 2014, the Venice Youth Court held hearings in January and April 2014 in the presence of both parents and fixed a series of meetings between the applicant and his daughter. A number of meetings took place between February and May at intervals of three weeks in Austria and then in June in Italy. The mother of the child was present at the meetings and on some occasions also her partner. The applicant alleges that on two occasions the mother ’ s partner threatened him and disrupted the meetings. According to the applicant meetings which had been scheduled for July and August 2014 did not take place as the mother refused to bring the child to Italy. The Venice Youth Court held a further hearing on 29 September 2014 and scheduled further meetings in Italy between the applicant and his daughter for December 2014 and January 2015. The proceedings before the Italian courts are still pending."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"63. The enforcement of child custody decisions is based on section 110 of the Non-Contentious Proceedings Act ( Außerstreitgesetz ). This provision also applies to the enforcement of decisions under the Hague Convention and, according to the Supreme Court ’ s case-law, to the enforcement of return orders under Article 11(8) of the Brussels IIa Regulation.",
"64. Section 110(1), taken in conjunction with section 79(2), provides for the imposition of the following sanctions: fines to enforce actions that need not be taken in person, imprisonment for contempt of court for a duration of up to one year to enforce actions that are to be performed in person, compulsory attendance, seizure of documents and, finally, appointment of a curator ad litem. As more lenient measures, the court may also reprimand a party or threaten to take coercive measures.",
"65. Section 110(2) allows for the use of reasonable direct coercion. Direct coercion may only be applied by court organs and is in practice entrusted to specially trained bailiffs. According to the Supreme Court ’ s case-law, the use of direct coercion, meaning the physical taking away of the child, is possible as a measure of last resort for the implementation of a return order. However, since the use of direct coercion constitutes a massive interference with the child ’ s personal circumstances, a particularly careful approach should be adopted when removing a minor from his or her previous living environment (judgment of 17 February 2010, 2 Ob 8/10f).",
"66. Section 110(3) provides that the court may refrain from continuing with enforcement proceedings if and as long as they constitute a risk for the well-being of the minor.",
"The Government argued that in accordance with the CJEU ruling of 1 July 2010, the courts were not entitled to rely on section 110(3) of the Non-Contentious Proceedings Act to review a return order on the merits or to examine whether there were reasons for granting a stay of enforcement, even if it was alleged that there had been a change in circumstances, as it was exclusively within the competence of the courts of the State of origin to rule on an application for a stay of a return order given under Article 11(8) of the Brussels IIa Regulation. In the context of the enforcement of a return order under that Regulation, the scope of application of section 110(3) of the Non-Contentious Proceedings Act was limited to cases in which the act of enforcement in itself endangered the minor ’ s well-being because of an acute danger to the child arising during the removal (for instance on account of strong resistance by or acute health problems of the minor concerned).",
"III. RELEVANT INTERNATIONAL LAW AND EUROPEAN UNION LAW",
"1. The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980",
"67. The relevant provisions of the Hague Convention read as follows:",
"Article 1",
"“The objects of the present Convention are:",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”",
"Article 3",
"“The removal or the retention of a child is to be considered wrongful where:",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”",
"Article 4",
"“ The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. ”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”",
"Article 12",
"“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. ”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:",
"...",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.”",
"2. Council Regulation (EC) No. 2201/2003 of 27 November 2003",
"68. The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa Regulation”)[, repealing Regulation (EC) No. 1347/2000,] read as follows:",
"Preamble",
"“(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.",
"...",
"(21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required.",
"...",
"(23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be ‘ automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement ’. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law.”",
"Article 1",
"“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:",
"(a) divorce, legal separation or marriage annulment;",
"(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.",
"2. The matters referred to in paragraph 1(b) may, in particular, deal with:",
"(a) rights of custody and rights of access;",
"(b) guardianship, curatorship and similar institutions;",
"(c) the designation and functions of any person or body having charge of the child ’ s person and property, representing or assisting the child;",
"(d) the placement of the child in a foster family or in institutional care;",
"(e) measures for the protection of the child relating to the administration, conservation or disposal of the child ’ s property.",
"...”",
"Article 10",
"“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:",
"(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;",
"or",
"(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:",
"(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.",
"(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);",
"(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7);",
"(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”",
"Article 11",
"“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘ the 1980 Hague Convention ’ ), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.",
"2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make it impossible, issue its judgment no later than six weeks after the application is lodged.",
"4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.",
"5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.",
"6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.",
"7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submission to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.",
"Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.",
"8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”",
"69. Pursuant to Article 40(1)(b) of the Regulation, section 4 of the Regulation applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8). ” Article 42, which also forms part of section 4 of the Regulation, provides as follows:",
"Article 42",
"“1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.",
"Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8) the court of origin may declare the judgment enforceable.",
"2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:",
"(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;",
"(b) the parties were given an opportunity to be heard; and",
"(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.",
"In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.",
"The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning the return of child(ren)).",
"The certificate shall be completed in the language of the judgment.”",
"Article 47",
"“1. The enforcement procedure is governed by the law of the Member State of enforcement.",
"2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.",
"In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”",
"Article 60",
"“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by the Regulation:",
"...",
"(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"70. The applicant complained that the Austrian courts had violated his right to respect for his family life in that they failed to enforce the Venice Youth Court ’ s judgments ordering his daughter ’ s return to Italy. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:",
"“1. Everyone has the right to respect for his private and family life, ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"71. The Government contested that argument.",
"A. Admissibility",
"1. The parties ’ submissions",
"72. The Government raised a number of objections regarding the admissibility of the case.",
"73. Firstly they asserted that the Venice Youth Court ’ s judgment of 10 July 2009, which had ordered the child ’ s return to Italy where she would reside with her mother, if the latter wished to relocate with her or, alternatively, with the applicant, had been replaced by the Venice Youth Court ’ s judgment of 23 November 2011. In that judgment, the said court had awarded sole custody to the applicant and had ordered that his daughter be returned to reside with him. The Government argued that the first judgment had thus become obsolete and there was no need for the Court to examine the applicant ’ s complaint in so far as it related to the non-enforcement of the first judgment. Following its approach in the Povse case (cited above, § 6 9 ), the Court should limit its examination to the enforcement of the second judgment.",
"74. In the alternative, the Government submitted that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention in so far as his complaint concerned the non-enforcement of the Venice Youth Court ’ s judgment of 10 July 2009. As the said court ’ s judgment of 23 November 2011 had replaced its first judgment, the applicant should have lodged his application concerning the non-enforcement of that judgment within six months after the new judgment had been issued. Consequently, his application lodged on 14 January 2013 had to be regarded as out of time.",
"75. Furthermore, the Government asserted that the applicant had failed to exhaust domestic remedies, as he had not made use of the possibility to lodge an application under section 91 of the Courts Act ( Gerichts-organisationsgesetz ) in respect of the enforcement of both judgments of the Venice Youth Court.",
"76. The applicant contested the Government ’ s view. He pointed out that both judgments of the Venice Youth Court had been given in the course of the same set of proceedings. The enforcement proceedings in Austria had started on 22 September 2009 when he had sought the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009 and were still pending. Consequently, his application lodged on 14 January 2013 had been introduced in good time. The applicant did not comment on the Government ’ s submissions concerning exhaustion of domestic remedies.",
"77. The Italian Government did not make submissions on these issues.",
"2. The Court ’ s assessment",
"( a) Exhaustion of domestic remedies",
"78. The Court will first examine the Government ’ s objection that the applicant has failed to exhaust domestic remedies.",
"79. The Court reiterates that that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. An applicant must have provided the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States, namely the opportunity of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention, that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which, at the same time, are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII ).",
"80. According to the Court ’ s established case-law, an application under section 91 of the Courts Act is an effective remedy in respect of complaints under Article 6 of the Convention regarding the length of proceedings (see, for instance, Holzinger v. Austria (no. 1), no. 23459/94, § 25, ECHR 2001 ‑ I). However, the Court has not yet pronounced itself on the question whether section 91 of the Courts Act can also be regarded as an effective remedy in respect of complaints under Article 8 alleging a failure to act or to conduct proceedings expeditiously, affecting an applicant ’ s right to respect for his or her family life.",
"81. The Court reiterates that there is a difference in the nature of the interests protected by Articles 6 § 1 and 8. Thus, Article 6 § 1 affords a procedural safeguard including the right to have a determination of one ’ s “civil rights and obligations” within a “reasonable time”, while Article 8, including the procedural requirements inherent in it, aims at the wider purpose of ensuring proper respect for family life (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 91, Series A no. 307 ‑ B). Given the different nature and aims of the two provisions, the finding that a remedy is effective for a complaint about the length of proceedings under Article 6 § 1 is not decisive for the question whether this is also the case for a complaint under Article 8.",
"82. The Court notes that the issue was also raised by the Government in a case which concerned both a complaint under Article 6 § 1 about the length of the custody proceedings in the case and a complaint under Article 8 that the domestic court ’ s inactivity had enabled the applicant ’ s husband to take their son to Turkey before a substantive decision on custody was given ( Kaplan v. Austria (dec.), no. 45983/99, 14 February 2006). The Court, while finding that failure to make use of the application under section 91 of the Courts Act led to non-exhaustion in respect of the length complaint under Article 6 § 1, did not decide on the question whether section 91 of the said Act might also provide an effective remedy in respect of the complaint under Article 8. Instead, it noted that the applicant had reiterated her request to be granted custody several times and had, moreover, twice sought an interim order in order to prevent her husband from taking their son to Turkey. As such requests called by their very nature for a speedy decision, the Court was satisfied that the applicant had made sufficient use of remedies for her complaint under Article 8 of the Convention.",
"83. In the present case, the applicant complained that the Austrian authorities had failed to enforce an order for his daughter ’ s return to Italy. He had requested her return under the relevant provisions of the Brussels IIa Regulation which, in so far as the return of a wrongfully removed child is concerned, builds on the Hague Convention. The applicant requested that the Austrian courts enforce the order for his daughter ’ s return, submitting the Venice Youth Court ’ s judgments of 10 July 2009 and of 23 November 2011 respectively, each accompanied by a certificate of enforceability under Article 42 of the Brussels IIa Regulation. In both sets of proceedings he appealed against the Leoben District Court ’ s decision refusing the child ’ s return. In the Court ’ s view, the applicant made use of the appropriate mechanism, the very aim of which is to bring about the speedy return of a wrongfully removed child, and thus, at least in substance, claimed his right to respect for his family life before the Austrian courts (see, mutatis mutandis, Raw and Others v. France, no. 10131/11, § 62, 7 March 2013 ).",
"84. In both sets of proceedings, the appellate court and the Supreme Court ruled that the Venice Youth Court ’ s return order was to be enforced. In addition, the CJEU ’ s ruling of 1 July 2010 made it clear that the Austrian courts were under an obligation to enforce the return order within the framework of the Brussels IIa Regulation (paragraph 33 above). The courts were therefore called upon to proceed with the enforcement of the Venice Youth Court ’ s judgments. It was for the authorities to act, not for the applicant ( Raw and Others, cited above, § 62, with further references). Moreover, the Court notes that the Government have not submitted any particular example showing the application of section 91 of the Courts Act in the specific context of proceedings concerning the enforcement of a return order. The Court concludes that in the present case the applicant was not required to make use of this remedy.",
"85. The Court therefore dismisses the Government ’ s objection of non-exhaustion.",
"( b) The further objections raised by the Government",
"86. The Court now turns to the other two points raised by the Government, namely that it should limit its examination to the enforcement of the Venice Youth Court ’ s second judgment, i .e. the one given on 23 November 2011, which made the latter court ’ s first judgment obsolete or, alternatively, find that the applicant has failed to comply with the six-month rule in so far as his complaint related to the Venice Youth Court ’ s first judgment, namely the one given on 10 July 2009.",
"87. The Court observes that the applicant does not complain in the first place that the Austrian courts failed to enforce one or the other of the Venice Youth Court ’ s judgments but alleges that they displayed a lack of respect for his family life throughout the proceedings which, in his assertion, have to be considered as a whole.",
"88. Furthermore, the Court observes that in the Povse case (cited above, § 69) case, to which the Government referred, it had noted that it would concentrate its examination on the enforcement of the Venice Youth Court ’ s second judgment. However, it did not declare the complaint inadmissible in so far as it related to the enforcement of the Venice Youth Court ’ s first judgment. The main issue raised by that case, brought by the mother of the applicant ’ s daughter on her own behalf and on behalf of the child, was whether the Austrian courts ’ obligation under the Brussels IIa Regulation to proceed to the enforcement of the Venice Youth Court ’ s judgments without any further examination of the merits violated their right to respect for their family life. Consequently, the same issue arose in respect of the enforcement of both judgments of the Venice Youth Court and the Court could concentrate its examination on the enforcement of the second judgment which was still pending.",
"89. The applicant ’ s complaint in the present case is of a different nature. He complains in essence that the manner in which the Austrian courts conducted the proceedings in their entirety violated his rights under Article 8. The Court notes the fact that until the present day the applicant has not been able to obtain his daughter ’ s return to Italy. In the Court ’ s view it would be artificial to consider the proceedings for the enforcement of the Venice Youth Court ’ s judgments of 10 July 2009 and 23 November 2011 as separate and unconnected, when examining whether or not the Austrian authorities have failed to show respect for the applicant ’ s family life.",
"90. Consequently, the Court dismisses the Government ’ s objections set out above.",
"( c) Conclusion",
"91. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"92. The applicant asserted that throughout the proceedings the Austrian courts had failed to act expeditiously and to take sufficient steps to ensure the enforcement of his daughter ’ s return to Italy.",
"93. In respect of the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009, the applicant asserted in particular that following the Supreme Court ’ s judgment of 13 July 2010 the competent District Court limited itself to requesting proof that appropriate accommodation would be available for D.P. and his daughter without giving any indication as to how he could comply with that requirement.",
"94. In respect of the enforcement of the Venice Youth Court ’ s judgment of 23 November 2011, the applicant asserted that proceedings had been examined at three levels of jurisdiction in Austria before the judge at the Wiener Neustadt District Court had taken the first steps towards enforcement of the judgment. They had been interrupted by the interim measure applied by the Court in the Povse case (cited above) and had only been resumed on his request in April 2013. The attempt of 24 July 2013 to have the child handed over to him by coercive measures had been flawed : he alleged that the absence of his daughter from her place of residence must have been due to information being leaked, and claimed that he had not received the necessary assistance from the judge. In addition, he asserted that the subsequent decision of 14 August 2013 to refrain from taking further enforcement measures while the proceedings brought by D.P. before the Venice Youth Court were pending had had no legal basis and had thus been arbitrary.",
"95. In sum, he alleged that the Austrian courts, instead of taking effective measures to enforce the return of his daughter, had remained passive or had acted arbitrarily, thus violating his right to respect for his family life.",
"96. For their part the Government, referring to the Court ’ s case-law in child abduction cases, observed that States were under a positive obligation to take all measures that could reasonably be expected of them to enforce a decision ordering a child ’ s return. The obligation was, however, not absolute but required the State to take the interests of all those concerned, and in particular the well-being and rights of the child, into account. They observed that the Court had frequently pointed out that the best interests of the child were of paramount importance.",
"97. Furthermore, the Government pointed out that in relations between EU member States the Brussels IIa Regulation took precedence over the Hague Convention. Pursuant to Article 47 of the Brussels IIa Regulation the law of the member State of enforcement was relevant for the enforcement proceedings, as had also been confirmed by the CJEU ’ s ruling in the present case. Enforcement law had to be in compliance with Article 8 of the Convention. In that connection, the Government pointed out that according to the Court ’ s case-law, domestic authorities had to do their utmost to facilitate cooperation among the parties concerned, which remained an important ingredient, as any obligation to apply coercion against a child had to be limited.",
"98. The Government conceded that although the applicant had not made use of his right to visit his daughter since mid-2009, the non-enforcement of the return orders had affected his right to respect for his family life.",
"99. The Government then gave a detailed overview of the steps taken by the Austrian authorities in the proceedings. Regarding the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009, which the applicant had applied for on 22 September 2009, they pointed out that the case raised controversial questions of EU law and had to be submitted to the CJEU for a preliminary ruling. Having obtained that ruling the Supreme Court ordered the child ’ s return in its decision of 13 July 2010. The District Court then took the necessary steps, calling repeatedly on the applicant directly and via the Austrian and Italian Central Authorities to furnish proof of the fulfilment of the condition imposed by the Venice Youth Court, namely that accommodation be made available for the applicant ’ s daughter and her mother by the Vittorio Veneto social services department. No such proof was forthcoming between February and November 2011. The fact that a prerequisite for the child ’ s return required by the Venice Youth Court had not been met could not be blamed on the Austrian courts.",
"100. Regarding the enforcement of the Venice Youth Court ’ s judgment of 23 November 2011, which the applicant had applied for on 19 March 2012, they pointed out in particular that once the Supreme Court had confirmed on 13 September 2012 that the judgment had to be enforced, the competent District Court had attempted to bring about co-operation between the applicant and the mother of the child in order to facilitate the handover and to limit the impact on the child. Subsequently, the District Court had been prevented from taking any steps from 4 December 2012 to 18 February 2013, during the period in which an interim measure had been applied by the Court in the related Povse case (cited above). Once the District Court had been informed of the lifting of the interim measure, it had continued the proceedings in April 2013 and on 20 May 2013 had ordered that the child be handed over by 7 July. An attempt made on 24 July 2013 to remove the child from her place of residence through the use of coercive measures had been unsuccessful due to her absence. The Government pointed out that careful preparation was needed for the use of coercive measures as they could only be carried out by specially trained bailiffs. The Government contested the applicant ’ s allegation that there must have been a leak as regards the date of the enforcement, noting that this allegation was unsubstantiated and unsupported by any evidence. Finally, the District Court could not be blamed for having refrained from taking further enforcement measures once D.P. had lodged applications with the competent Italian court seeking a stay of the enforcement of the judgment of 23 November 2011 and a new ruling on custody.",
"101. In sum, the Government asserted that the Austrian courts had taken all reasonable measures with a view to enforcing the return order. In the choice of steps taken, the competent District Court had struck a fair balance between implementing the applicant ’ s rights and having regard to the best interests of a young child, which had to be given priority in its deliberations.",
"102. The Italian Government observed that the case involved a delicate balance of interests between the fundamental rights involved and expressed the view that the national authorities were best placed to find a solution that duly took into account the best interests of the child.",
"2. The Court ’ s assessment",
"(a) Principles established by the Court ’ s case-law",
"103. The Court notes, firstly, that the relationship between the applicant and his daughter amounts to family life within the meaning of Article 8 of the Convention. The child was born in December 2006 from the relationship between the applicant and D.P. and lived in the applicant ’ s household until the age of one year and two months. After her mother moved to Austria with her in February 2008, the applicant visited her regularly from October 2008 until mid-2009. Since then they had no further contact until February 2014 (see paragraph 62 above). While the parties disagree as to the reason for the lack of contact between the applicant and his daughter, the existence of family life between them is not in dispute.",
"104. That being so, it must be determined whether there has been a failure to respect the applicant ’ s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective “respect” for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Raw and Others, cited above, § 78; Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 55, 24 April 2003; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 ‑ I ).",
"105. In relation to the State ’ s positive obligations the Court has repeatedly held that Article 8 includes a parent ’ s right to have measures taken with a view to being reunited with his or her child and an obligation on the national authorities to take such measures ( Raw and Others, cited above, § 79; Maire, cited above, § 70; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94).",
"106. However, the national authorities ’ obligation to take such measures is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all are always important ingredients. While national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In a situation where contact between parent and child might jeopardise such interests or infringe such rights, the national authorities are under a duty to ensure that a fair balance is struck between them (see, Raw and Others, § 80; Maire, cited above, § 71; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94).",
"107. Moreover, the Court has repeatedly held that coercive measures against children are not desirable in this sensitive area ( Maire, cited above, § 76, and Ignaccolo-Zenide, cited above, § 106) or might even be ruled out by the best interests of the child ( Raw and Others, cited above, § 80).",
"108. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The Court considers that, in the area of international child abduction, the positive obligations that Article 8 of the Convention lays on the Contracting must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see, among others, Ignaccolo-Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989 (see, for example Maire, cited above, § 72), which attach paramount importance to the best interests of the child ( see Raw and Others, cited above § 82, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § § 49-56 and 137, ECHR 2010 and X. v. Latvia, [GC], no. 27853/09, §§ 93 and 96, ECHR 2013 ).",
"109. Finally, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to an award of parental responsibility, including the enforcement of the final decision, require urgent handling, as the passage of time can have irremediable consequences for relations between the child and the non-resident parent. The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any failure to act for more than six weeks may give rise to a request for a statement of reasons for the delay (Raw and Others, cited above, § 83; Maire, cited above, § 74; and Ignaccolo-Zenide, cited above, § 102).",
"( b ) Application of these principles to the present case",
"110. The present case concerns the applicant ’ s complaint about a lack of respect for his family life in that the Austrian courts failed to enforce the Venice Youth Court ’ s judgments ordering his daughter ’ s return to Italy.",
"111. The main point to be assessed is whether the Austrian authorities have taken all the measures that they could reasonably be expected to take in order to ensure the return of the applicant ’ s daughter (see, among other authorites, Raw and Others, cited above, § 84; Maire, cited above, 73; and Ignaccolo-Zenide, cited above, §§ 96 and 101).",
"112. In addition, the Court notes that the present case concerns the return of a child from one EU member State to another. In relations between EU member States the rules on child abduction contained in the Brussels IIa Regulation supplement those already laid down in the Hague Convention. Both instruments are based on the philosophy that in all decisions concerning children, their best interests must be paramount (see X. v. Latvia, cited above, §§ 96-97 ).",
"113. The Hague Convention and the Brussels IIa Regulation, which in the field of child abduction builds on it, associate this interest with restoration of the status quo by means of a decision ordering the child ’ s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child ’ s best interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph (b ) of the Hague Convention – see X. v. Latvia, cited above, § 97 ).",
"114. Under the Brussels IIa Regulation, which builds on the Hague Convention and is based on the principle of mutual trust between EU member States, the competency to assess whether non-return would be in the child ’ s best interest is distributed as follows: the State to which the child has been wrongfully removed can oppose return in justified cases. However, under Article 11 (8) of the Brussels IIa Regulation the State in which the child had its habitual residence prior to the wrongful removal can override a decision refusing return pursuant to Article 13 of the Hague Convention. If such a decision is accompanied by a certificate of enforceability pursuant to Article 42 of the Regulation, the requested State has to enforce it. According to Article 47 of the Regulation the law of the State of enforcement applies to any enforcement proceedings.",
"115. The Court ’ s task in the present case is to assess whether the Austrian courts took swift and adequate measures to secure the return of the applicant ’ s daughter. The decisive issue is whether the domestic courts, in their choice and implementation of enforcement measures struck a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – taking into account, however, that the best interest of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see, mutatis mutandis, X. v. Latvia, cited above, § 95).",
"116. The Court considers it useful in the present case to give an overview of the conduct of the proceedings before entering into the detailed assessment of the Austrian authorities ’ handling of the case.",
"(i) The conduct of the proceedings",
"117. It is uncontested that D.P. had wrongfully removed the child to Austria in February 2008. However, the Venice Youth Court had initially, by judgment of 23 May 2008 (see paragraph 11 above), authorised her and the child to stay in Austria and had granted access rights to the applicant. Visits took place between October 2008 and mid-2009. Subsequently, the applicant had no further contact with his daughter until February 2014. While the parties disagree whether this was due to the applicant ’ s failure to make use of his right to visit his daughter or to obstruction by the child ’ s mother, the fact that there was no contact between the applicant and his daughter from mid-2009 until February 2014 is not in dispute.",
"118. Regarding the first set of proceedings, the Court notes the following: On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009 given pursuant to Article 11(8) of the Brussels IIa Regulation. He also submitted a certificate of enforceability under Article 42 of the Regulation. That judgment had ordered the return of the applicant ’ s daughter to Italy leaving two options to the child ’ s mother: if she wished to return with the child, the judgment required the Vittorio Veneto social services department to provide them with accommodation. In case she did not wish to return, the child was to reside with the applicant.",
"119. By a decision of 12 November 2009 the Leoben District Court refused enforcement. Its decision was set aside by the Leoben Regional Court on 20 January 2010 on the ground that it was contrary to the provisions of the Brussels IIa Regulation. D.P. ’ s appeal on points of law of 16 February 2010 raised a number of rather complex questions concerning the application and interpretation of the Brussels IIa Regulation, which led the Supreme Court to request the CJEU for a preliminary ruling on 20 April 2010. The CJEU gave judgment on 1 July 2010. On 13 July 2010 the Supreme Court dismissed D.P. ’ s appeal on points of law confirming that the Austrian courts had to enforce the Venice Youth Court ’ s judgment without reviewing the merits of the case, while it was for D.P. to raise any argument relating to a change of relevant circumstances before the competent Italian court. D.P. made use of this opportunity but the Venice Youth Court dismissed her application for a stay of the enforcement of its judgment on 31 August 2010.",
"120. According to the file, no action was taken until 17 February 2011 when the Leoben District Court requested the applicant to provide evidence that appropriate accommodation would be made available (see paragraph 38 above). More than a month later, on 22 March 2011, the Austrian Central Authority informed its Italian counterpart that the condition of providing accommodation had not been complied with. Further letters with similar contents were sent to the Italian Central Authority between May and November 2011. It appears that no reply was received from the Italian authorities.",
"121. Regarding the second set of proceedings, the Court notes the following: While the proceedings concerning the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009 had come to a standstill, the applicant had obtained a new judgment by the Venice Youth Court on 23 November 2011. It transferred sole custody of his daughter to him and ordered that she return to Italy to reside with him.",
"122. On 19 March 2012 the applicant sought the enforcement of that judgment again submitting a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The Leoben District Court, by decision of 3 May 2012, once more refused the request for the return of the applicant ’ s daughter. On 15 June 2012, the Leoben Regional Court granted the applicant ’ s appeal on the ground that the condition that accommodation be made available was no longer applicable and ordered D.P. to hand over the child within fourteen days, with enforcement measures to be taken in case of failure to comply. D.P. did not comply with the order but made use of the possibility of lodging an appeal on points of law with the Supreme Court, which was rejected by that court on 13 September 2012 as the legal issues has already been clarified in the first set of proceedings.",
"123. Subsequently, on 1 October 2012, the competence to deal with the present case was transferred from the Leoben District Court to the Wiener Neustadt District Court, as D.P. and the applicant ’ s daughter had changed their place of residence. The Wiener Neustadt District Court attempted to obtain the co-operation of both parents, while threatening to make use of coercive measures should no negotiated solution be found. The first attempt was made on 4 October 2012, when the Wiener Neustadt District Court ordered both parents to indicate within two weeks whether they were prepared to take part in a hearing with the aim of finding an agreed solution for the child ’ s return. The applicant indicated that he was not prepared to take part in the hearing. It appears that no steps were taken in November 2012. The proceedings were interrupted between the beginning of December 2012 and mid-February 2013 (see paragraph 54 above). Subsequently, two months elapsed until April 2013, when the District Court resumed the proceedings and made a second attempt to bring about both parents ’ co-operation.",
"124. Following the second unsuccessful attempt to bring about both parents ’ co-operation, the District Court issued an order on 20 May 2013, setting 7 July 2013 as the deadline for the child ’ s handover to the applicant as the next step, again threatening the use of coercive measures in the event of non-compliance. As D.P. did not comply with the order, the court made an attempt to enforce the order through the use of coercive measures on 24 July 2013. That attempt remained unsuccessful.",
"125. On 9 August 2013 D.P. sought a stay on the enforcement of the child ’ s return from the Venice Youth Court and asked it to take a new decision on custody, seeking an award of sole custody of the child. She advanced a number of arguments alleging that the circumstances had changed and that the child ’ s return to Italy would endanger her well-being (see paragraph 59 above). Thereupon, on 14 August 2013 the Wiener Neustadt District Court decided to refrain from further enforcement measures, pending the decision of the Venice Youth Court. According to the information available to the Court, the proceedings before the Venice Youth Court are still pending.",
"( ii) Whether the Austrian authorities took swift and adequate measures",
"126. The Court will now examine whether the Austrian courts took swift and adequate measures to protect the applicant ’ s right to respect for his family life.",
"127. The Court notes firstly, that the decisions in the first set of proceedings followed at reasonable intervals. The case, raising a new issue regarding the application of the Brussels IIa Regulation came before three levels of jurisdiction. In addition it was submitted to the CJEU for a preliminary ruling. The Court reiterates that bringing the case before the CJEU was a necessary step in order to bring the control mechanism provided for in European Union law into play (see, Povse, cited above, §§ 81-83). Up to 31 August 2010 when the Venice Youth Court dismissed D.P. ’ s request for a stay of the enforcement of its return order, the Court does not see any failure of the Austrian courts to handle the case expeditiously.",
"128. The subsequent phase, however, was marked by a period of inactivity. Although almost a year had gone by since the applicant ’ s request for his daughter ’ s return, the Leoben District Court remained inactive for five and a half months until mid-February 2011, when it contacted the applicant and then the Italian central authority in order to establish whether accommodation for the applicant ’ s daughter and her mother would be made available. Given that the Venice Youth Court ’ s judgment had provided alternatives for the child ’ s return either with or without her mother, the Court can accept that the Austrian courts gave preference to the first alternative which involved a less drastic interference with the family life between the applicant ’ s daughter and her mother. However, no explanation has been provided for the District Court ’ s failure to take action for a protracted period. The Court notes that in return proceedings far shorter delays give rise to concern. In the context of the Hague Convention any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see, for instance, Ignaccolo-Zenide, cited above, § 102). The delay here at issue weighs all the more heavily, given that contacts between the applicant and his daughter had already broken off in mid-2009, The District Court must have been aware that any further delay might have irremediable consequences for the relationship between them.",
"129. Subsequently, the Austrian authorities were faced with the lack of any reply from the Italian authorities between March and November 2011. As the proceedings had reached a deadlock, it is understandable that the applicant sought a new judgment from the Venice Youth Court, which he obtained on 23 November 2011. However, he only requested its enforcement on 19 March 2012. The request was refused by the Leoben District Court. While it is a normal occurrence for a court decision to be set aside on appeal, the Court notes that the District Court ’ s decision triggered a new round of appeal proceedings before the Leoben Regional Court, which decided in the applicant ’ s favour and finally opened up the possibility for D.P. to lodge a further appeal on points of law with the Supreme Court, although the relevant legal issues had already been resolved in the first set of proceedings.",
"130. At the time the Wiener Neustadt District Court became competent to deal with the case in October 2012, a period of three years had gone by since the applicant had requested the enforcement of the Venice Youth Court ’ s first judgment ordering his daughter ’ s return. As follows from the considerations set out above, this situation was in part attributable to the lack of expedition in the Austrian courts ’ own handling of the case. Moreover, there had not been any contacts between the applicant and his daughter during this period. In that connection, the Court notes that it does not appear that the applicable law provided the courts with adequate means to re-establish such contact while the proceedings were pending.",
"131. Given the difficult situation, the Court considers that the District Court took appropriate steps, trying to secure the parties ’ co-operation in order to avoid coercive measures in the interest of the child. Although the Court discerns some delays in November 2012 and between February and April 2013, it does not consider them decisive in themselves. Ultimately, faced with the unbending position of both parents, the District Court proceeded to the implementation of coercive measures. While the attempt at enforcement of 24 July 2013 was unsuccessful, the Court sees no indication in the file that the failure of the attempt could be attributed to the conduct of the Austrian authorities, as alleged by the applicant.",
"( iii ) Overall assessment",
"132. Although the Court attaches considerable weight to the delay caused by the Leoben District Court in the first set of proceedings, it does not overlook a number of factors which contributed to the difficulty in dealing with the case. To begin with, there was the lack of any reply by the Italian authorities in the first set of proceedings. The applicant ’ s choice, though understandable, to make a request for enforcement of the Venice Youth Court ’ s second judgment, meant that the whole range of remedies was again available to the parties. Finally, the fact that contact between the applicant and his daughter had been interrupted since mid- 2009 made the authorities ’ task all the more difficult. The unbending position of both parents added further to the difficulty of the case. This became particularly apparent in the second set of proceedings, which were marked by the District Court ’ s attempts to bring about co-operation between the parties, with the aim of avoiding coercive measures against the applicant ’ s daughter. However, the Court reiterates that that the lack of co-operation between separated parents is not a circumstance which by itself may exempt the authorities form their positive obligations under Article 8 (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011 ).",
"133. The Court would add the following considerations. It cannot but note that despite the fact that the applicant submitted a final and enforceable return order to the Austrian courts in September 2009, the Austrian authorities have not been able to bring about an enforcement of this or the subsequent return order until today. In that context, it is of particular importance to note that so far no final decision has been taken which would conclude that return would be against the child ’ s best interests. The issue whether circumstances have changed to such an extent that an enforcement of the Venice Youth Court ’ s judgment is no longer justified is currently pending before the Venice Youth Court.",
"134. According to the Court ’ s established case-law, effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time (see, among others, H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120; Raw and Others, cited above, § 83). In that connection, the Court has also repeatedly noted that the passage of time can have irremediable consequences for relations between the child and the parent who does not live with it (see, for instance Keegan v. Ireland, 26 May 1994, § 55, Series A no. 290; Ignaccolo-Zenide, cited above, § 102; Maire, cited above, § 74). This raises the question whether the procedural framework in place allowed the applicant to pursue his rights effectively.",
"135. In the specific the context of return proceedings, the Court has held that it is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention (see, for instance Ignaccolo-Zenide, cited above, § 108; Sylvester, cited above, § 68). Moreover, in a recent case relating to proceedings under the Hague Convention, the Court examined whether the procedural framework provided by the State was adequate to give effect to the object and purpose of that Convention (see, López Guió v. Slovakia, no. 10280/12, §§ 106-111, 3 June 2014). In the Court ’ s view, similar considerations apply in the present case.",
"136. Specific streamlined proceedings may be required for the enforcement of return orders – be it under the Hague Convention or under the Brussels IIa Regulation – for a number of reasons. Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court notes that it is in the nature of such proceedings that the lapse of time risks to compromise the position of the non-resident parent irretrievably (see, Lópes Guió, cited above, § 109 ). Moreover, as long as the return decision remains in force the presumption stands that return is also in the interests of the child (see, X. v. Latvia, cited above, §§ 96-97 ). The proceedings available to the applicant in the present case followed the normal pattern of enforcement proceedings. They did not contain any specific rules or mechanisms to ensure particular speediness. It does not appear either that the authorities had appropriate means at their disposal to ensure that contact between the applicant and his daughter, which had broken off in mid-2009, was re-established and maintained while the proceedings were pending.",
"137. In conclusion, the Court considers that the Austrian authorities failed to act swiftly in particular in the first set of proceedings. Moreover, the available procedural framework did not facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life.",
"138. There has accordingly been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"139. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"140. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage, arguing that the Austrian courts ’ failure to enforce his daughter ’ s return to Italy has deprived him of contact with his daughter over a lengthy period.",
"141. The Government contested the applicant ’ s claim. They asserted that the applicant himself did not make any attempt to get in contact with his daughter and that, in any case, the amount claimed appeared excessive in the light of awards made by the Court in comparable cases.",
"142. The Court accepts that the applicant must have suffered distress as a result of the Austrian Court ’ s failure to enforce the return of his daughter to Italy, which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases and making an assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"143. The applicant also claimed EUR 39,283.85 under the head of costs and costs and expenses. This sum is composed of EUR 24,393.65 incurred in the proceedings before the Venice Youth Court and EUR 14,890.20 incurred in the proceedings before the Court. These amounts included value-added tax.",
"144. The Government submitted that the applicant had failed to give any indication as to the existence of a causal link between the costs claimed for the proceedings before the Venice Youth Court and the alleged violation. Regarding the costs claimed in respect of the proceedings before the Court, the Government argued that they appeared excessive.",
"145. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the proceedings before the Venice Youth Court and considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to him on that amount.",
"C. Default interest",
"146. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
50 | G.S. v. Georgia | 21 July 2015 | This case concerned proceedings in Georgia for the return of the applicant’s son, born in 2004, to Ukraine. Her former partner decided to keep their son in Georgia with family at the end of the summer holidays in 2010, while himself living in Russia and occasionally visiting his son in Georgia. The applicant complained in particular about the refusal of the Georgian courts to order the return of her son to Ukraine and about the length of the return proceedings. | The Court held that there had been a violation of Article 8 of the Convention, finding that the decision-making process before the domestic courts under the Hague Convention had amounted to a disproportionate interference with the applicant’s right to respect for her family life. It considered in particular that there had been shortcomings in the Georgian courts’ examination of the expert and other evidence in the return proceedings on the case. In particular, when identifying what would be in the boy’s best interests, the courts gave no consideration to reports by social workers and a psychologist, which had concluded that the boy was suffering from lack of contact with both parents and a situation which was barely understandable. Indeed, it was questionable whether keeping the boy, who had spent the first six years of his life in Ukraine, in Georgia in the care of his paternal family – who had no custody rights – and without either of his parents, was in itself in his best interests. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1981 and lives in Kharkiv, Ukraine.",
"A. Background",
"6. The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in Kharkiv. On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant ’ s address and acquired Ukrainian citizenship.",
"7. Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkiv.",
"8. In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T.",
"9. On 22 July 2010 T. died in an accident. She fell from an open window of an apartment. L., who had apparently witnessed the tragic incident, started receiving psychological help in the form of dolphin-assisted therapy.",
"10. On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays. She signed a document authorising G. Ch. to travel with L. to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the applicant, L. was expected to return to Kharkiv by the end of August in order to start in September at a primary school in which he had been pre-enrolled.",
"11. On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia. For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch. ’ s brother, and his grandfather. G. Ch. travelled occasionally to Georgia to see his son.",
"12. On 16 November 2010 L. was diagnosed with an adjustment disorder and began having outpatient treatment.",
"B. The proceedings in Ukraine",
"13. On 22 March 2011 the Kievskiy District Court of Kharkiv ordered L. ’ s return to Ukraine. The court ruled that L. ’ s place of permanent residence should be that of the applicant.",
"14. G. Ch. was not apparently informed of the institution of the above proceedings. He did not accordingly appeal against that decision.",
"C. The proceedings in Georgia",
"15. In October 2010 the applicant initiated child return proceedings under the Hague Convention via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court.",
"16. On 10 February 2011 two social workers went to see L. at the request of the Tbilisi City Court. They visited him at his uncle ’ s apartment, where he was living with his cousins. According to the report drawn up thereafter, L. was being looked after by his uncle, since his father was mainly based in Russia. The boy spoke Russian, although he had started attending a Georgian school. L. ’ s uncle told the social workers that L. ’ s sister had died as a result of their mother ’ s lack of attention; hence it was dangerous for L. to live with his mother. The social workers also had a short conversation with L. during which he stated that he was happy with his uncle and cousins, and did not want to go back to Ukraine. In conclusion, the social workers noted that L. was living in appropriate living conditions, and that his basic needs were being met.",
"17. In April 2011 the social workers set up and attended three meetings between the applicant and her son. In the report drawn up thereafter they concluded the following:",
"“On the basis of our intervention, which included visits, conversations with L. and observation of his behaviour, we consider his behaviour to be problematic. In particular, although L. wants to see his mother, and when seeing her expresses his love, warm feelings and happiness, he refuses subsequently to talk to her on the telephone. It should be underlined that when communicating with his mother he is following his father ’ s prompting and is stressed. Given that L. is living in the family of his uncle and grandfather, he lacks relationship with his parents (since neither of the parents lives with him). In order for a child to develop into a contented and healthy individual, and to have his interests protected, it is necessary for him to communicate with his parents.”",
"18. In the same report the social workers noted that during one of the meetings they noticed that the boy, prompted by his father, had stopped hugging his mother. This happened twice, until one of the social workers warned G. Ch. to stop doing this.",
"19. In April L. additionally underwent a psychological examination, which concluded that the boy was suffering from insufficient emotional relationship with his parents. It was noted that L. had a clearly positive attitude towards his father and the paternal family, while with respect to the mother his attitude was twofold: love and warm feelings on the one hand, and anxiety on the other. L. indicated to a psychologist that he wanted to live with his father and his father ’ s family and wanted his mother to be with them too. In her conclusions about his emotional condition the psychologist noted that the boy ’ s nervousness, aggression, distrust, and irritability, as well as low self-esteem, were caused by psychological trauma he had suffered in the past, as well as by his current complicated and barely comprehensible situation.",
"20. On 16 May 2011 the Tbilisi City Court refused the applicant ’ s request. The court concluded, having regard to the boy ’ s age and other circumstances of the case, that his return to Ukraine would expose him to psychological risk. It stated in this connection that it would be inappropriate to order the boy ’ s return to Ukraine, since the applicant had failed to show that she could create a stable environment for her son in which he could be protected from psychological risks related to the separation from his father. The court further noted the following:",
"“The court considers that in the current case, having regard to a psychologist ’ s report which categorically states that L. suffered a serious psychological injury, it is with high probability that if returned to Ukraine the child would be exposed to “physical or psychological harm or otherwise place [d] in an intolerable situation” (Article 13 of the Convention).”",
"21. The court dismissed the applicant ’ s argument that her son was suffering from an adjustment disorder and lacked communication with his parents. It noted in this connection the following:",
"“In view of a psychological examination the court particularly stresses the following – “L. Ch. has revealed ... high level of anxiety ... and fear of the future”, “twofold attitude towards his mother, which implies love and warm feelings as well as strong anxiety,” according to the same report, it was established that [he suffers from] “lack of emotional relationship with both parents” and “positive attitude towards his father and the paternal family” especially towards the grandfather (N. Ch.).",
"The court further particularly underlines the fact that minor L. Ch. expresses the wish to live with his father and the paternal family. At the same time, he wants his mother (G. S.) to stay with them ...",
"The court cannot accept the argument of the requesting party that the child is having adaptation difficulties because of the separation from his mother and because he is being kept in Georgia. The above opinion is not supported by any evidence and is not substantiated ... There is an attempt on the father ’ s side to take every possible measure ... to treat [the boy ’ s] psychological condition.”",
"22. As to the risks related to the boy ’ s return to Ukraine, the court stated :",
"“Hence, the court considers that the return of L. Ch. to Ukraine (in view of his current condition) would imply his return to an uncomfortable situation, which would result in his psychological stress and would place him at psychological risk, even if he returned to Ukraine with his father. Separation from his father and the paternal family and his return to Ukraine (at this stage) would cause mental deterioration of the child and from a psychological point of view would inevitably create a risk [for the boy]. (The requesting party failed to prove the opposite). “",
"23. That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L. ’ s return to Ukraine. The appeal court observed that L. had been born and had lived in Kharkiv, so he had adapted to the situation in Ukraine. Further, according to the psychological and social welfare reports, the boy was suffering from adaptation difficulties and lacked sufficient communication with his parents. In this connection, the court stressed that L. had indeed suffered psychological trauma as a result of the accidental death of his sister; but, according to the very same reports, he was also suffering because of the situation he was currently in. Hence, it was within the best interests of the child to be reunited with his mother. The court further noted:",
"“The above - mentioned conclusions confirm that the current situation for [the boy] is complicated and hardly comprehensible. Accordingly, in view of the interests of L. Ch., since there is no obvious risk of a negative impact on his mental state if he were returned to his mother, it would be appropriate that he be returned to his parent (the applicant G. S.) and to his habitual place of residence.”",
"24. As to the death of L. ’ s sister, the appeal court noted that related criminal proceedings had been dropped, as it had been concluded that it had been a tragic accident. It further noted in connection with the psychological trauma the boy suffered as a result, that",
"“ ... already traumatised child should not be separated from his parents. This should be viewed as a decision taken in the interests of the child. As was noted in the appealed decision, L. before his arrival in Georgia had been having dolphin-assisted rehabilitation treatment. At the same time, his stay with his mother cannot be harmful to him, since she has been doing an internship at the psychiatric hospital ... ”",
"25. G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. On 22 August 2012, without holding an oral hearing, the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. On a general note, in connection with the purpose of the initiated proceedings the court noted the following:",
"“The subject matter of the pending application is the return to Ukraine of a child (L. Ch.) wrongfully retained in Georgia ... The cassation court pays attention to the analysis developed in the preamble of the Convention concerning its aims, according to which the interests of the child are of paramount importance when examining childcare - related issues. At the same time, the High Contracting Parties to the Convention undertook an obligation to provide international protection to children against any harmful effects of their wrongful removal or retention. Accordingly, it implies that the procedures provided for by the Convention which aim at the speedy return of a wrongfully removed or retained child to his or her habitual place of residence serve the main purpose of protecting children ’ s interests. In view of all the above - mentioned, the cassation court when considering the lawfulness of the request to end wrongful retention of a child considers it appropriate within the scope of the appeal on point of law to also examine the issue as to what extent the child ’ s interests would be protected in the event of his return which together with other factors implies the creation of a safe environment for a child. The above analysis of the cassation court finds its basis in the exceptional clauses of the Convention which in individual cases allow the relevant bodies of the receiving state to refuse the return of a child (Article 13 of the Convention).”",
"26. The Supreme Court further considered that the applicant had failed to show that the return of L. to the pre-abduction situation would be possible without damaging his interests. Notably, the court concluded:",
"“ The cassation court wholly shares the view of the appeal court, according to which L. is suffering from lack of relationship with his parents; accordingly, in order for the child to develop into a contented and healthy individual and to have his interests protected it is necessary for him to communicate with his parents. However, as was noted above, when dealing with this type of case particular attention should be given to the consideration of exceptional circumstances ... The appellant alleges a violation of Article 13 § b of the Convention (there is a serious risk that if returned the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation) and considers that the impugned decision omits the primary reason for L. Ch. ’ s leaving Ukraine, namely the tragic death of T. Ch. in July 2010, which fact had a negative impact on the psychological condition of L. Ch. ...",
"The cassation court notes the results of the available psychological examination, in which the psychologist along with other issues stressed the high level of traumatisation in L. Ch. as a result of the death of his younger sister. At the same time, the psychologist considers the psychological features observed to be the boy ’ s reaction to the psychological trauma which he had suffered and to the current barely comprehensible situation. It is noteworthy that even the court of appeal could not omit the fact that as a result of the death of T. Ch. (the sister of L. Ch.) the latter had suffered mental trauma and is as of 16 November 2010 registered at a ... psychiatric institution .... However, the above - mentioned circumstances were not sufficient [for the appeal court] to refuse the return of the boy.",
"The cassation court considers that there is no evidence in the case file which would lead the court to believe that it would be possible to return the child to his pre-abduction environment without damaging his interests. In the opinion of the cassation court, the appellant validly substantiated, on the basis of relevant evidence, the risk factors which are inconsistent with the purposes of the Convention, while the respondent failed to show a higher purpose which could have been achieved by putting an end to the unlawful situation and [she had also] failed to demonstrate that in the event of the child being returned to Ukraine his interests and rights would not be even more violated. Accordingly, bearing in mind that the primary purpose of the Convention on Civil Aspects of International Child Abduction is the protection of the interests of a child, the cassation court considers that the appellant has lodged a substantiated complaint. ”",
"27. To conclude, in reference to Article 13 § b of the Hague Convention, the Supreme Court observed that the main purpose of the Hague Convention was the protection of the best interests of a child, and that accordingly, given the well-substantiated risks that L. was facing upon his return to Ukraine, the exception clause should have been invoked.",
"28. The case file indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the case file, is currently living with his uncle and grandfather in Tbilisi."
] | [
"II. RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW AND PRACTICE",
"A. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction",
"29. The relevant part of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) reads:",
"Article 2",
"Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.",
"Article 3",
"The removal or the retention of a child is to be considered wrongful where -",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.",
"30. The relevant part of the Explanatory Report to the Hague Convention by Elisa Pérez-Vera (hereafter “the Explanatory Report”), published by the Hague Conference on Private International Law (HCCH) in 1982, reads as follows:",
"C. Importance attached to the interests of the child",
"25. It is thus legitimate to assert that the two objects of the Convention — the one preventive, the other designed to secure the immediate reintegration of the child into its habitual environment — both correspond to a specific idea of what constitutes the ‘ best interests of the child ’. However, even when viewing from this perspective, it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. Therefore the Convention recognizes the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained. For the most part, these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area.",
"D. Exceptions to the duty to secure the prompt return of children",
"34. To conclude ... it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. ... [A] systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child ’ s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.",
"Article 11 – The use of expeditious procedures by judicial or administrative authorities",
"104. The importance throughout the Convention of the time factor appears again in this article. Whereas article 2 of the Convention imposes upon Contracting States the duty to use expeditious procedures, the first paragraph of this article restates the obligation, this time with regard to the authorities of the State to which the child has been taken and which are to decide upon its return. There is a double aspect to this duty: firstly, the use of the most speedy procedures known to their legal system; secondly, that applications are, so far as possible, to be granted priority treatment.",
"105. The second paragraph, so as to prompt internal authorities to accord maximum priority to dealing with the problems arising out of the international removal of children, lays down a non-obligatory time-limit of six weeks, after which the applicant or Central Authority of the requested State may request a statement of reasons for the delay. Moreover, after the Central Authority of the requested State receives the reply, it is once more under a duty to inform, a duty owed either to the Central Authority of the requesting State or to the applicant who has applied to it directly. In short, the provision ’ s importance cannot be measured in terms of the requirements of the obligations imposed by it, but by the very fact that it draws the attention of the competent authorities to the decisive nature of the time factor in such situations and that it determines the maximum period of time within which a decision on this matter should be taken.",
"Articles 13 and 20 – Possible exceptions to the return of the child",
"114. With regard to article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child, be he a physical person, an institution or an organization, that person not necessarily being the abductor.",
"31. In 2003 the HCCH published Part II of the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention ’ s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, in helping to interpret coherently and understand the 1980 Convention. It emphasises, inter alia, that the judicial and administrative authorities are under an obligation to process return applications expeditiously, including on appeal. Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children.",
"B. The International Convention on the Rights of the Child",
"32. The relevant provisions of the United Nations Convention on the Rights of the Child (“the CRC”), signed in New York on 20 November 1989, read as follows:",
"Preamble",
"“The States Parties to the present Convention ...",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding ...",
"Have agreed as follows ...",
"Article 7",
"1. The child shall be registered immediately after birth and shall have the right from birth ... to know and be cared for by his or her parents...",
"Article 9",
"1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...",
"Article 18",
"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern ...”",
"33. In General Comment no. 14 on the right of the child to have his or her best interests taken as a primary consideration, published on 29 May 2013 (CRC/C/GC/14), the Committee on the Rights of the Child stated, inter alia, the following:",
"6. The Committee underlines that the child ’ s best interests is a threefold concept:",
"(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general ...",
"(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child ’ s best interests should be chosen ...",
"(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision ‑ making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child ’ s best interests; what criteria it is based on; and how the child ’ s interests have been weighed against other considerations, be they broad issues of policy or individual cases ...",
"32. The concept of the child ’ s best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof. Accordingly, the concept of the child ’ s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child ’ s best interests must be assessed and determined in light of the specific circumstances of the particular child ...",
"33. The child ’ s best interests shall be applied to all matters concerning the child or children, and taken into account to resolve any possible conflicts among the rights enshrined in the Convention or other human rights treaties. Attention must be placed on identifying possible solutions which are in the child ’ s best interests ...",
"(c) Preservation of the family environment and maintaining relations",
"58. The Committee recalls that it is indispensable to carry out the assessment and determination of the child ’ s best interests in the context of potential separation of a child from his or her parents ...",
"60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when [ ... ] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests” (art. 9, para. 3). This also extends to any person holding custody rights, legal or customary primary caregivers, foster parents and persons with whom the child has a strong personal relationship.",
"61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child ... ”",
"C. Relevant Georgian legislation",
"34. On 21 June 2011 a new chapter concerning the examination of cases regarding wrongfully removed or retained children was inserted into the Civil Code of Procedure of Georgia. The new chapter describes the procedures and manner for submitting and examining requests for a return of wrongfully removed and/or retained children. The relevant Article of this Chapter concerning time-limits reads as follows:",
"Article 351(14). Time-limits",
"“ 1. A court shall take a decision concerning the return of a wrongfully removed or retained child ... expeditiously, within six weeks of receiving the request. ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"35. The applicant complained about the refusal of the Georgian courts to order the return of her son to Ukraine. She also complained about the length of the return proceedings. She relied on Article 8 of the Convention, which reads as follows:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"a. The Government",
"37. The Government claimed at the outset that the initial removal of L. from Ukraine was not wrongful for the purposes of the Hague Convention, given that the applicant herself had authorised L. ’ s travel for the period between 30 July 2010 and 28 February 2011. They next submitted that the interference with the applicant ’ s family life on account of her son ’ s retention in Georgia had a legal basis, namely Article 13 § b of the Hague Convention. It had also served the legitimate aim of protecting the child ’ s best interests. Specifically, they maintained, in line with the reasoning of the first - instance court and the Supreme Court, that if returned to Ukraine L. would be exposed to psychological harm. The Government stressed that the domestic courts had relied on all the evidence adduced in the case, including two social welfare reports produced by the relevant authorities in respect of the child ’ s general situation and emotional state of mind, and evidence given by a psychologist concerning the boy ’ s psychological condition. In view of these reports they maintained that L. ’ s separation from his father would further aggravate his psychological trauma and hence was not in the child ’ s best interests.",
"38. As regards the length of the proceedings, the Government argued that having regard to the complexity of the case it could not be said that the domestic authorities had not acted expeditiously enough. Referring on the one hand to the social welfare reports as well as to the conclusion of a psychologist, which had been drawn up following observation of L. ’ s behaviour, and noting on the other that no significant periods of inactivity by the domestic courts could be observed, the Government claimed that they had fully discharged the positive obligation they owed to the applicant under Article 8 of the Convention.",
"39. In their additional observations the Government submitted that the place of residence of G. Ch. was irrelevant for the purposes of the return proceedings conducted under the Hague Convention, since the only purpose of those proceedings was to estimate the possible risks of psychological harm L. could face if returned to Ukraine. They further stressed that according to the social welfare reports as well as the conclusion of a psychiatrist, L. was living in a safe and loving environment and did not want to go back to Ukraine. They hence argued that his return would have caused him additional trauma.",
"b. The applicant",
"40. The applicant contested the domestic court ’ s reasoning maintained by the Government before the Court, that the interference with her family life had been lawful under Article 13 § b of the Hague Convention. She claimed that the courts had failed to conduct a deep analysis of her family situation and to strike a proper balance between the various interests at stake in the best interests of the child. Her argument in this respect was mainly threefold: firstly, the domestic courts had simply omitted the fact that L. was in fact living in Georgia with his uncle and grandfather, who were taking care of him in the absence of his father. Neither of them had any custody rights in respect of the boy. Secondly, when reaching their conclusion that psychological harm would await the boy in Ukraine, the domestic courts did not assess the living conditions of the child in Ukraine. They also overlooked the fact that the applicant was a practising psychiatrist, and was thus in a position to provide her son with the required medical assistance. And lastly, there was no clear evidence in the case file that L. was indeed undergoing psychiatric treatment in Georgia. And in any event, he could have continued receiving the required treatment in Ukraine as well.",
"2. The Court ’ s assessment",
"a. General principles",
"41. In Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, § § 131-140, ECHR 2010) and X v. Latvia ( [GC], no. 27853/09, §§ 92-108, ECHR 2013) the Court articulated a number of principles which have emerged from its case-law on the issue of the international abduction of children, as follows:",
"42. In the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child of 20 November 1989, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties;",
"43. The decisive issue is whether the fair balance that must exist between the competing interests at stake : those of the child, of the two parents, and of public order, has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”;",
"44. There is a broad consensus, including in international law, in support of the idea that in all decisions concerning children their best interests must be paramount. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child ’ s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child ’ s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b));",
"45. The child ’ s interest comprises two limbs. On the one hand, it dictates that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. On the other hand, it is clearly also in the child ’ s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development;",
"46. In the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 § a) and the existence of a “grave risk” (Article 13 § b), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation which, however, remains subject to European supervision. Hence, the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8;",
"47. A harmonious interpretation of the European Convention and the Hague Convention can be achieved, provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to ascertain that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention; and",
"48. Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child ’ s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted, is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.",
"49. In addition to the principles outlined above, the Court has repeatedly stated that effective respect for family life requires future relations between parent and child to be determined solely in the light of all the relevant considerations, and not by the mere passage of time (see Maumousseau and Washington v. France, no. 39388/05, § 73, 6 December 2007; Lipkowsky and McCormack v. Germany ( dec. ), no. 26755/10, 18 January 2011, and Diamante and Pelliccioni v. San Marino, no. 32250/08, § 177, 27 September 2011). Ineffective, and in particular delayed, conduct of judicial proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011), as procedural delay may lead to a de facto determination of the matter at issue (see H. v. the United Kingdom, 8 July 1987, § 89, Series A no. 120). Therefore, in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter. This duty, which is decisive in assessing whether a case has been heard within a reasonable time as required by Article 6 § 1 of the Convention, also forms part of the procedural requirements implicit in Article 8 (see, for example, Süß v. Germany, no. 40324/98, § 100, 10 November 2005, and Strömblad v. Sweden, no. 3684/07, § 80, 5 April 2012).",
"b. Application of these principles to the current case",
"50. The Court first observes, in line with the domestic courts ’ conclusion, that whilst L. ’ s travel to Georgia had not been wrongful, since the applicant had consented to it, the failure to return the boy to his habitual place of residence was wrongful within the meaning of Article 3 of the Hague Convention. It further notes that the Tbilisi City Court and the Supreme Court of Georgia, unlike the Tbilisi Court of Appeal, took the view that the boy ’ s return to Ukraine would expose him to psychological harm within the meaning of Article 13 § b of the Hague Convention.",
"51. The Court accepts the Government ’ s submission that the interference with the applicant ’ s right to family life was provided by law, namely Article 13 § b of the Hague Convention, which entered into force for Georgia on 1 November 1997, and that it pursued the legitimate aim of protecting the child ’ s best interests. The Court must however determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the Hague Convention. For that purpose the Court, in line with the general principles outlined above (see paragraphs 41 -4 9 above) will examine first whether the conclusion that the return of the boy to Ukraine would expose him to grave risk of harm was supported by relevant and sufficient reasons and whether the relevant factors were evaluated in the light of Article 8 of the Convention (see paragraphs 47- 4 8 above); and second, whether the domestic courts exercised the required diligence in conducting expeditious return proceedings under the Hague Convention (see paragraph 4 9 above).",
"52. The Court will make an assessment in the light of the situation existing at the time when the relevant domestic decisions were taken (see X. v. Latvia, cited above, § 109 ).",
"i. The reasons for the refusal to order the child ’ s return",
"53. The main line of reasoning of the first and cassation instances in the return proceedings centred on the death of L. ’ s sister and the psychological trauma which the boy had suffered as a result. Hence, the first - instance court concluded that in view of the applicant ’ s psychological trauma there was a high probability that his return to Ukraine would cause him physical or psychological harm, or would place him in an otherwise intolerable situation (see paragraph 20 above). Along the same line of reasoning, the Supreme Court concluded that G. Ch., by adducing relevant evidence, had substantiated the risks that the boy would face if returned to Ukraine, while the applicant had failed for her part to outweigh those risks by showing what greater benefit there would be in the boy being returned to the pre ‑ abduction situation (see paragraph 2 6 above).",
"54. The Court concurs with the domestic courts that the psychological trauma L. suffered as a result of the death of his sister was a relevant factor to be considered during the boy ’ s return proceedings. Indeed, the tragic incident was the very reason why the boy, with the consent of his mother, had initially gone to Georgia. The Court is, however, not persuaded by the subsequent reasoning of the Supreme Court, which led to the finding of the existence of a “grave risk” for the child in the event he was returned to Ukraine. Hence, the Supreme Court in its decision concluded that the father had well substantiated the risks which L. would have faced if returned to Ukraine. However, although it used general phrases such as “physical or psychological harm” or “otherwise intolerable situation” (see paragraphs 25-26 above) it failed to explain what those risks exactly implied. It is noteworthy that the father before the domestic courts did not assert that the applicant herself posed a threat to the boy (see, a contrario, X v. Latvia, cited above, §§ 23 and 116 ). Although L. ’ s uncle voiced his concerns with social workers about inattentiveness on the part of the applicant (see paragraph 16 above), it should be remembered that the relevant domestic proceedings in Ukraine concluded that the death of L. ’ s sister had been the result of a tragic accident (see paragraph 2 4 above).",
"55. Further, there was no expert evidence in the case file to suggest that the return to Ukraine as such would exacerbate the boy ’ s psychological trauma (compare with Neulinger and Shuruk, § 143, and X. V. Latvia, § 116, both cited above ). To the Court ’ s regret, neither of the reports proposed an analysis of the implications of L. ’ s possible return to Ukraine; and there was no exploration of the possible risks in this regard (see Karrer v. Romania, no. 16965/10, § 46, 21 February 2012, and Blaga v. Romania, no. 54443/10, § 82, 1 July 2014 ). The psychologist ’ s report merely stated that the boy had experienced psychological trauma and was in need of assistance (see paragraph 19 above), which the applicant did not contest. On the contrary, as someone with a medical background, she consistently reiterated before the domestic courts her readiness to provide her son with the required psychological assistance in Ukraine.",
"56. As to the Government ’ s argument that the boy wanted to stay in Georgia and that his return and consequent separation from his father and the paternal family would have caused him additional psychological trauma (see paragraphs 37- 3 9 above), the Court observes the following: the aim of the Hague Convention is to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she had unilaterally created (see Maumousseau and Washington, § 73, and Lipkowsky and McCormack ( dec. ), both cited above ). Hence, the abducting parent cannot benefit from his or her own wrongdoing. Further, the exceptions to return under the Hague Convention must be interpreted strictly (see the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 30 above; see also Maumousseau and Washington, cited above, § 73 ). Thus, the harm referred to in Article 13 § b of the Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return : the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear ( see X v. Latvia, cited above, § 116; see also Maumousseau, cited above, § 69 ).",
"57. In view of the above mentioned, and also having regard to the facts that no expert examination was conducted concerning the implications of L. ’ s separation from the paternal family, and that the living conditions awaiting the boy in Ukraine were also left without consideration, the Court finds the Government ’ s argument about possible psychological trauma due to L. ’ s separation from his father and the paternal family, misconceived.",
"58. It thus appears that there was no direct and convincing evidence in the case file concerning the allegation of a “grave risk” for the child in the event of his return to Ukraine. In such circumstances it is not entirely clear what were the specific reasons on the basis of which the domestic courts concluded that there was a grave risk either of psychological or physical harm or of an intolerable situation for the boy if he were returned to Ukraine (compare with Maumousseau and Washington, cited above, §§ 63 and 74).",
"59. As regards the evaluation of the domestic courts ’ reasoning in the light of Article 8 of the Convention, the Court notes that while concluding with reference to the psychological and social welfare reports on the harm that was allegedly awaiting L. in the event of his return to the pre-abduction situation in Ukraine, the Supreme Court omitted the risks the boy was facing, according to the very same reports, in the event of his retention in Georgia. Notably, according to the medical report of 12 January 2011, L. was diagnosed with adjustment disorder (see paragraph 12 above). Further, the social workers in their report of 12 April 2011 explicitly concluded that the boy was suffering from lack of relationship with his parents (see paragraph 17 above). The psychologist went even further, noting in her conclusion of 3 May 2011 along with the problem of insufficient relationship with the parents that L. was suffering from psychological trauma as well as from “ the currently complicated and barely understandable situation” (see paragraph 19 above). The Supreme Court did acknowledge a problem of lack of relationship with the parents (see paragraph 26 above). When identifying the boy ’ s best interests, however, it did not give any consideration to the above conclusions. Such an approach is difficult to reconcile with the requirement of a careful examination of a child ’ s situation enshrined in the Hague Convention as well as in Article 8 of the Convention (see Karrer, cited above, § § 46 -48 and İlker Ensar Uyanık v. Turkey, no. 60328/09, § 61-62, 3 May 2012 ).",
"60. At this point the Court also finds it necessary to address the Government ’ s other argument, according to which the place of residence of G. Ch. was irrelevant to the return proceedings (see paragraph 3 9 above). The Court reiterates in this connection that it has repeatedly emphasised in its case-law that the best interests of the child are to be the primary consideration in all decisions relating to children (see X v. Latvia, cited above, § 96; see also the General Comment no. 14, cited in paragraph 33 above ). In the current case the de facto consequence of the return proceedings was L. ’ s being kept in Georgia with his uncle and grandfather. The domestic courts preferred to simply ignore the facts that L. ’ s father was in principle living in Russia, and that it was primarily the paternal family who was looking after the boy. Neither the uncle nor the grandfather had any custody rights with respect to L.",
"61. The Court is of the opinion that such a situation - keeping the child, who had spent the first six years of his life in Ukraine with his mother, in Georgia in the absence of both his parents - per se raises questions as to its compatibility with the principle of the best interests of a child (see in this regard, paragraphs 32 -3 3 above). Indeed, the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005; Iosub Caras v Romania, no. 7198/04, §§ 28-29, 27 July 2006; and Karrer, cited above, § 37 ). Even if not directly relevant to the return proceedings, as claimed by the Government, this factor should not have been simply ignored by the domestic courts, which were acting ostensibly in the child ’ s best interests.",
"62. To sum up, the Court considers that the above-identified shortcomings in the examination of the expert and other evidence in the current case could not have led to a relevant and sufficient reasoning in the Supreme Court ’ s decision. Furthermore, the latter failed to properly determine L. ’ s best interests in view of the specific circumstances of the current case (see paragraphs 59-61 above) and to strike a fair balance between the parties ’ conflicting interests.",
"ii. The promptness of the proceedings",
"63. Articles 2 and 11 of the Hague Convention ( see paragraph 2 9 above) requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children, and any failure to act for more than six weeks may give rise to a request for explanations (see paragraphs 30-31 above ). In the current case the applicant submitted a request for the return of her son in October 2010. The domestic court proceedings started on 2 December 2010 and were concluded with the final decision of the Supreme Court on 22 August 2012. Even though the six- week time-limit in Article 11 of the Hague Convention, which applies both to first-instance and appellate proceedings, is not mandatory (see paragraphs 30 - 3 1 above), the Court still considers that the overall length of the current proceedings – amounting to approximately ninety weeks, raises questions as to the respondent State ’ s compliance with the positive obligation to act expeditiously in the Hague proceedings (see Iosub Caras, §§ 38-39, and Karrer, § 54, both cited above; see also M.A. v. Austria, no. 4097/13, § 128, 15 January 2015 ).",
"64. The Government argued that the involvement of a psychologist and a social worker in the proceedings could explain their length. The Court is prepared to accept this argument in part, as regards the length of the first ‑ instance court proceedings. An issue already arises with respect to the length of the appeal proceedings, which lasted for approximately four months and did not involve any examination of new evidence. However, a major concern for the Court is the delay at the cassation stage. Hence, in the instant case the proceedings before the Supreme Court were pending for almost nine months. It is noteworthy that the Supreme Court opted not to hold an oral hearing (see paragraph 2 5 above ). No witnesses were thus questioned in court, and no fresh expert or other evidence was presented and examined. In such circumstances, such a long period of inactivity gives rise to a concern. The Government provided no explanation for the Supreme Court ’ s failure to take action for a protracted period.",
"65. On this point, the Court also notes that Article 351(14) § 1 of the Civil Code of Procedure, which was already in force during the appeal and cassation proceedings, provided for a six-week period for taking decisions on requests in proceedings for the return of children (see paragraph 34 above). By disregarding that specific time-limit in the applicant ’ s case, the Tbilisi Court of Appeal and the Supreme Court did not use the most expeditious procedure as required (see Articles 2 and 11 of the Hague Convention in paragraph 29 above, and the Explanatory Report thereto in paragraph 30-31 above), and failed to respond to the urgency of the situation ( see Adžić v. Croatia, no. 22643/14, §§ 97-98, 12 March 2015 ).",
"66. Consequently, the Court finds that the domestic courts did not act with the required diligence, and failed to address this case in a most expeditious manner.",
"iii. Conclusion",
"67. In the light of all the above mentioned, the Court considers that the applicant suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under the Hague Convention before the domestic courts did not meet the procedural and positive requirements inherent in Article 8 of the Convention. There has accordingly been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"68. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"69. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage, arguing that separation from her son over a lengthy period of time had caused her pain and suffering. In addition, she claimed EUR 850 in respect of pecuniary damage on account of several journeys she had undertaken between Ukraine and Georgia in order to spend time with her son and participate in the return proceedings.",
"70. The Government reiterated their argument concerning the unreasonableness of the applicant ’ s allegations under Article 8 of the Convention. They further argued that the amount claimed in relation to non ‑ pecuniary damage was excessive in the light of awards made by the Court in comparable cases. As regards the pecuniary damage, the Government noted that the documentation submitted by the applicant in support of her claim was insufficient; the copies of the two air tickets submitted showed an amount of only approximately EUR 300.",
"71. The Court accepts that the applicant must have suffered distress and emotional hardship as a result of the Georgian courts ’ refusal to order her son ’ s return to Ukraine, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 8 ,000 in respect of non-pecuniary damage.",
"72. As regards the pecuniary damage, the Court discerns a causal link between the violation found and the pecuniary damage alleged, given that had the violation not occurred the applicant would not have had to travel to Georgia. However, on the basis of the documentary evidence before it, and in particular the flight bookings submitted by the applicant, the Court allows this claim only partially, awarding EUR 300 in respect of pecuniary damage.",
"B. Costs and expenses",
"73. The applicant also claimed EUR 1, 500 for costs and expenses incurred before the domestic courts, which included EUR 150 for court fees.",
"74. The Government submitted that the amount claimed was not supported by the required documentation.",
"75. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 800 for costs and expenses.",
"C. Default interest",
"76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
51 | K.J. v. Poland | 1 March 2016 | This case concerned a Polish national’s complaint about the proceedings before the Polish courts for the return of his child to the United Kingdom where he he was living and where the child had been born and raised for the first two years of her life. The mother, also Polish, left the United Kingdom with their daughter for a holiday in Poland in July 2012 and has never returned. In the ensuing Hague Convention proceedings, the Polish courts dismissed the father’s request for the return of his daughter. | The Court held that there had been a violation of Article 8 of the Convention, finding that, notwithstanding its margin of appreciation in the matter, the Polish State had failed to comply with its positive obligations under Article 8. It found in particular that the mother, instead of substantiating any specific risks to her daughter if she were returned to the United Kingdom, had only referred to the break-up of her marriage and her fear that the child would not be allowed to leave the United Kingdom. The Polish courts had, however, accepted her reasons as convincing enough to conclude that – with or without the mother – the child’s return to her habitual environment in the United Kingdom would place her in an intolerable situation. The Court considered that that assessment by the Polish courts was misguided: firstly, there was no objective obstacle to the mother’s return to the United Kingdom; secondly, in assessing that the child’s return to the United Kingdom with her mother would not have a positive impact on the child’s development, the courts had not taken into account the conclusions in an expert report by psychologists that the child, who adapted easily, was in good physical and psychological health, was emotionally attached to both parents and perceived Poland and the United Kingdom on an equal footing. Lastly, the Court noted that, despite the recognised urgent nature of the Hague Convention proceedings, one year had elapsed between the request for return and the final decision, a period for which no explanation had been provided by the Polish Government. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background",
"5. The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents.",
"B. Child retention and proceedings under the Hague Convention",
"6. On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant ’ s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child.",
"7. On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention.",
"8. It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case.",
"9. In response to the applicant ’ s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter ’ s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child.",
"10. The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing.",
"11. The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”).",
"12. On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013.",
"13. The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant ’ s request for the child ’ s return (III Nsm 999/12).",
"14. The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts ’ report.",
"15. The RODK experts were ordered to make the following assessment:",
"“whether moving [the child] into her father ’ s care, linked with her separation from the mother, would disturb [the child ’ s] sense of security and would affect her emotional state in a negative way; or is it recommended, [ with a view to] the adequate psycho-physical development of the child, to [put the child under the father ’ s care] linked with [giving] an order to surrender the child by the mother.”",
"16. The experts concluded that “the child ’ s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child ’ s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter ’ s needs.”",
"The experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father.",
"17. The first-instance court considered that the RODK ’ s report was thorough, clear and of a high evidentiary value.",
"18. On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child ’ s return to her father without the mother.”",
"19. The domestic court attached importance to the young age of the child ( who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child ’ s primary caregiver. The reasons for the mother ’ s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts ’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 ( b ) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” ( w niekorzystnej sytuacji ).",
"20. The applicant appealed, arguing among others the following points of fact and law : the first-instance court ruled in breach of Article 13 ( b) of the Hague Convention, firstly in that they concluded that in the circumstances of the case there was a grave risk that the child ’ s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court ’ s conclusion that the child ’ s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer.",
"21. At the appellate hearing, the applicant also argued (6 ) that the experts in psychology who had drafted the RODK ’ s report for the first ‑ instance court were incompetent.",
"22. On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12).",
"23. The appellate court fully relied on the findings of fact made by the first- instance court, and held that the child ’ s return to the United Kingdom with or without the mother would place her in an intolerable situation (“ w sytuacji nie do zniesienia ”). Firstly, in view of the child ’ s very young age and the fact that since the retention the child had been under her mother ’ s care practically round the clock and that her contact with the applicant had been rare, the child ’ s separation from her mother would cause negative and irreversible consequences. Secondly, the child ’ s return with her mother would not have a positive impact on the child ’ s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances.",
"24. As to the remaining grounds of the applicant ’ s appeal, the regional court ruled in the following manner: contrary to the applicant ’ s impression, the RODK ’ s report was clear and adamant in its conclusion that the child ’ s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant ’ s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK ’ s experts was, firstly, belated ( the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant ’ s reliance on the impugned report in support of his remaining arguments.",
"C. The applicant ’ s contact with the child, divorce application and recent developments",
"25. At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant ’ s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant ’ s right of contact during the Hague Convention proceedings.",
"26. The domestic court did not rule on that application.",
"27. On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m.",
"28. On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant ’ s contact with the child until the end of the couple ’ s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 ( III. R. Nsm 35/13 ).",
"29. On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J. ’ s interlocutory appeal against that decision.",
"30. The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother ’ s house and in her presence.",
"31. On 28 November 2014 the Grudziadz District Court issued a decision on the applicant ’ s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision.",
"On 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015.",
"32. Divorce proceedings are currently pending in the United Kingdom."
] | [
"II. RELEVANT INTERNATIONAL AND COMPARATIVE LAW",
"A. The Hague Convention",
"33. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland (Dz.U.1995 r. Nr 108, poz. 528, date of entry onto force 1 November 1992 ) and the United Kingdom provides, in so far as relevant, as follows.",
"“ ... Article 3",
"The removal or the retention of a child is to be considered wrongful where -",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 4",
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.",
"...",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.",
"...",
"Article 16",
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.",
"Article 19",
"A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.",
"... ”",
"B. The Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention",
"34. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 ( “the Pérez ‑ Vera Report”), provides the following comments on the notion of “the best interest of the child”:",
"“ ... ‘ the legal standard ‘ the best interest of the child ’ is that at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether ‘ the interest ’ of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age ’ ... ” (§21, p. 431)",
"“ ... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase on international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests ... the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child ... ’ the presumption generally stated is that the true victim of the ‘ childnapping ’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives ’ ... ” (§24, pp. 431 and 432)",
"“It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘ best interests of the child ’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected ... ” (§ 25, p. 432) ”",
"35. As a consequence, the Hague Convention contains a number of clearly derived from a consideration of the interest of the child, namely that of a serious risk that a child ’ s return would expose him or her to “physical or psychological harm” or otherwise place the child in an “intolerable situation”.",
"36. The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child ’ s prompt return under Article 13 (b) :",
"“ ... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter ... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child ’ s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child ’ s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration ... ” (§34, pp. 434 and 435)",
"“ ... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child ’ s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances ...” (§113 p. 460)",
"“ ... With regard to article 13, the introductory past of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child ... ” (§ 114, p. 460)",
"“ ... The exceptions contained in [article 13] b deal with situations ... where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ... ” (§116, p. 461)",
"37. With regard to Article 29 the Pérez-Vera Report states that the aim of the Hague Convention is to provide additional means of helping persons whose custody or contact rights have been breached. Those persons have a choice either to apply directly to the Central Authorities, as provided for in the Hague Convention, or to institute relevant proceedings before the authorities of the State where the child is located. In such a case, where the applicants have recourse to a direct action before the competent authorities, they can choose to submit their application “whether or not under the provisions” of the Hague Convention. In the latter case, according to the explanatory report, the authorities are not obliged to apply the provisions of the convention unless they have been incorporated in their domestic law.",
"C. The International Convention on the Rights of the Child",
"38. The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows:",
"Preamble",
"“The States Parties to the present Convention,",
"...",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...",
"Have agreed as follows:",
"...",
"Article 3",
"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration ...",
"Article 7",
"1. The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents...",
"Article 9",
"1. States Parties shall ensure that a child shall not be separated from his or her parents against their will...",
"Article 14",
"1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.",
"2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child...",
"Article 18",
"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.",
"...”",
"D. European Union law",
"39. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “Brussels II bis Regulation”) reads, in particular, as follows:",
"“...",
"(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child ’ s habitual residence, except for certain cases of a change in the child ’ s residence or pursuant to an agreement between the holders of parental responsibility.",
"(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.",
"...",
"(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.",
"...",
"Article 10",
"Jurisdiction in cases of child abduction",
"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:",
"(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;",
"or",
"(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:",
"(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;",
"(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);",
"(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);",
"(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.",
"Article 11",
"Return of the child",
"1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter \"the 1980 Hague Convention\"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.",
"...",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.",
"4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.",
"5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.",
"... ”",
"E. European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children",
"40. The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (known as “Luxembourg Convention”) reads, in so far as relevant, as follows:",
"“ ...",
"Article 1",
"For the purposes of this Convention:",
"a child means a person of any nationality, so long as he is under 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed;",
"...",
"d improper removal means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; improper removal also includes:",
"i the failure to return a child across an international frontier at the end of a period of the exercise of the right of access to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised;",
"...",
"Article 5",
"1 The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order:",
"...",
"b to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant;",
"...",
"Article 8",
"1 In the case of an improper removal, the central authority of the State addressed shall cause steps to be taken forthwith to restore the custody of the child where:",
"a at the time of the institution of the proceedings in the State where the decision was given or at the time of the improper removal, if earlier, the child and his parents had as their sole nationality the nationality of that State and the child had his habitual residence in the territory of that State, and",
"b a request for the restoration was made to a central authority within a period of six months from the date of the improper removal.",
"...",
"Article 11",
"...",
"3 Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the State addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests.",
"...",
"Article 19",
"This Convention shall not exclude the possibility of relying on any other international instrument in force between the State of origin and the State addressed or on any other law of the State addressed not derived from an international agreement for the purpose of obtaining recognition or enforcement of a decision.",
"Article 20",
"1 This Convention shall not affect any obligations which a Contracting State may have towards a non-Contracting State under an international instrument dealing with matters governed by this Convention.",
"2 When two or more Contracting States have enacted uniform laws in relation to custody of children or created a special system of recognition or enforcement of decisions in this field, or if they should do so in the future, they shall be free to apply, between themselves, those laws or that system in place of this Convention or any part of it. In order to avail themselves of this provision the State shall notify their decision to the Secretary General of the Council of Europe. Any alteration or revocation of this decision must also be notified.",
"III. RELEVANT DOMESTIC LAW",
"41. The amendment to the 1964 Code of Civil Procedure ( Kodeks Postępowania Cywilnego ) introduced on 19 July 2001, which entered into force on 27 September 2001 regulates the proceedings concerning the return of children under the Hague Convention (Articles 598 1 -598 14 of the Code of Civil Procedure).",
"Article 598 2 provides that when proceedings under the Hague Convention are pending, the domestic court shall not, in principle, rule on the issue of parental rights and custody. Custody proceedings shall be stayed proprio motu until the end of the proceedings concerning the child ’ s return.",
"Article 445 1 operates in the general context of family disputes over minor children and provides that when proceedings for divorce are pending, separate proceedings concerning right of contact shall not be instituted or shall be stayed proprio motu if they had been instituted prior to the application for divorce. Under this provision, the issue of the right of contact shall be decided by the court before which the divorce proceedings are pending by means of interim procedure.",
"Lastly, under paragraph 2 of this provision proceedings for the right of contact shall be resumed if the final and binding ruling ending the divorce proceedings is silent on the issue of contact. Otherwise, proceedings for the right of contact shall be discontinued.",
"42. Irrespective of the above-mentioned regulations, a party to civil proceedings is entitled to apply for an interim measure (Article 730 et al. of the Code of Civil Procedure). Article 755 of the Code of Civil Procedure specifically provides that matters of custody and contact with a child may be regulated by a court by means of an interim measure. Under Article 737 of the Code of Civil Procedure, an application for an interim measure shall be examined without undue delay, in principle no later than one week after the date of its lodging with the court.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE OUTCOME THE PROCEEDINGS FOR THE CHILD ’ S RETURN UNDER THE HAGUE CONVENTION AND THE DECISION-MAKING PROCESS",
"43. The applicant complained of a breach of his right to respect for his family life under Article 8 of the Convention because of the dismissal of his Hague Convention request. The applicant elaborated on this complaint, indicating that the unfavourable outcome of the impugned proceedings resulted from the misapplication of the Hague Convention and from various alleged shortcomings in the decision-making process. Article 8 of the Convention reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"44. The Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"45. In his application to the Court, the applicant complained of a breach of Article 8 of the Convention on account of the outcome of his Hague Convention proceedings. In his subsequent observations on the case he specified a series of shortcomings in the decision-making process leading to the refusal to grant his Hague Convention request.",
"46. More specifically, the applicant submitted that the Polish family court had misapplied the Hague Convention procedure in that they had focused on two elements which were absent from the Hague Convention test under Article 13. Incidentally, these elements also constituted wrong assumptions, namely that the applicant ’ s daughter would have to be separated from her mother and that she would be placed in her father ’ s custody.",
"To this effect, the applicant considered that the issue which had been put forward by the first-instance court to the RODK ’ s experts had been formulated erroneously de jure since the applicant ’ s request for the child ’ s return under the Hague Convention had not aimed at “moving the child into the father ’ s care” but simply at returning the child to her habitual place of residence regardless of who was responsible for her care. Firstly, such was the nature of the Hague Convention requests which pursued its restorative objective. And secondly, with regard to the applicant ’ s specific case, in the divorce proceedings pending in the United Kingdom the applicant had specifically asked for shared and not exclusive custody of his daughter.",
"In the applicant ’ s opinion, the subsequent judicial examination of his Hague Convention request was likewise erroneously focused on those two elements.",
"47. The applicant also argued that the impugned decision of the domestic court, which resulted from an incorrectly broad interpretation of Article 13 (b) of the Hague Convention, was contrary to the child ’ s best interests within the meaning of that provision and instead protected the interests of the child ’ s mother, who had decided not to return to the United Kingdom without indicating any objective reasons for such a decision.",
"48. Moreover, the applicant submitted that the decision-making process leading to the adoption of the impugned decision was contrary to the procedural requirements of Article 8 of the Convention.",
"49. Firstly, in the applicant ’ s opinion, the Polish family court had taken too long to examine his Hague Convention request, in breach of the requirement of expeditious proceedings under Article 11 of the Hague Convention. Secondly, in the absence of a decision to adjourn, the applicant had to attend one hearing before the first-instance court without a lawyer. Thirdly, the presiding judge who issued the first-instance ruling was to be biased because she “welcomed the divorce petition” filed by the applicant ’ s wife. Fourthly, the RODK ’ s report was, in the applicant ’ s view, issued unlawfully because the appointment of expert psychologists and their professional liability was not regulated under Polish law at the time. And fifthly, under the Hague Convention and under the Brussels II Regulation, the Polish courts should not have examined the divorce application brought by M.J. as long as the applicant ’ s request for the child ’ s return was pending.",
"50. The Government refrained from making comments on the merits of the case.",
"2. The Court ’ s assessment",
"(a) General principles",
"51. The general principles on the relationship between the Convention and the Hague Convention, the scope of the Court ’ s examination of child international child abduction applications, the best interests of the child and on the procedural obligations of the States, are laid down in the Court ’ s Grand Chamber judgment in the case of X v. Latvia (see X v. Latvia [GC], no. 27853/09, § § 93-102, 107 ECHR 2013) and also in a number of other judgments concerning proceedings for return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 ‑ I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015).",
"( b ) Application of the general principles to the present case",
"52. In the instant case, the primary interference with the applicant ’ s right to respect for his family life may not be attributed to an action or omission by the respondent State, but rather to the action of the applicant ’ s wife and his child ’ s mother, a private individual, who has retained their daughter in Poland (see López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014).",
"53. That action nevertheless placed the respondent State under positive obligations to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child (see Ignaccolo-Zenide, cited above, § 94 ).",
"54. In the present case, while holding that the retention of the child away from her habitual residence in the United Kingdom was wrongful within the meaning of Article 3 of the Hague Convention, the domestic courts took twelve months to examine the applicant ’ s request for the return of his daughter, and eventually dismissed it on the ground that her return without her mother would place the girl in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention.",
"55. The Court finds therefore that the events under consideration in the instant case, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicant ’ s right to respect for his family life (see Iosub Caras, cited above, § 30).",
"56. The Court also notes that this interference had its legal basis in the Hague Convention, which entered into force in Poland in 199 2 and which forms part of its domestic law. Moreover, the domestic courts acted in what they considered to be pursuit of the legitimate aim of protecting the rights and freedoms of the child and her mother (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 99 and 106, ECHR 2010, and, mutatis mutandis, Maummousseau, cited above, § 61 ).",
"57. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking the balance between the competing interests at stake appropriate weight was given to the child ’ s best interests, within the margin of appreciation afforded to the State in such matters.",
"58. The Court must be also aware of the context which is all-important for the interpretation of treaties. The 1980 Hague Convention is not the only instrument regulating matters connected with child abduction in relations between Poland and the United Kingdom. Both States are also parties to the 2003 Brussels II bis Regulation and the 1980 Luxembourg Convention. The 1980 Hague Convention itself has to be interpreted and applied in the context of these instruments.",
"59. The Court observes that the assessment of the child ’ s best interests carried out by the Polish family courts in the course of the applicant ’ s Hague Convention proceedings has indeed revolved around the question of whether moving the child into her father ’ s care and separating her from the mother would disturb the child ’ s sense of security and would have a negative impact on her emotional state (see paragraphs 15, 18 and 23 above).",
"60. Firstly, a question to this effect was formulated in explicit terms and put to the RODK ’ s experts with a view to obtaining a report which later served as the basis of the family courts ’ assessment of the exceptions under Article 13 (b) of the Hague Convention (see paragraphs 16 and 17 above). The RODK ’ s experts in fact recommended that the child should continue living in Poland because her return to the United Kingdom without the mother would be more harmful to her than the lack of daily contact with her father (see paragraph 16 above).",
"61. Secondly, the first-instance court assessed the risk of psychological and physical harm to the child in the event of her return to her father without the mother; no consideration having been given to the alternative return of the child with the mother (see paragraph 18 above). As a matter of fact the district court held that there was a grave risk of psychological trauma for the child in the event of her immediate separation from her mother, because of the girl ’ s young age and because her mother had always been her primary caregiver (see paragraph 19 above).",
"62. Thirdly, even though the appellate court reformulated its reasoning when upholding the decision to dismiss the applicant ’ s Hague Convention request, the fact that the child ’ s mother was unwilling to live in the United Kingdom remained central to its analysis (see paragraph 23 above). Being faced with the applicant ’ s explicit argument that the lower court had breached Article 13 (b) of the Hague Convention in that it had wrongly assumed that the child would have to be separated from the mother in absence of any objective obstacles to her return to the United Kingdom (see paragraph 20 above), the appellate court appears to have accepted that the conflict between the applicant and M.J. and the latter ’ s alleged inability to adapt to her life abroad were reasons objective and convincing enough to prompt the conclusion that with or without her mother the child ’ s return to her habitual environment would place her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention (see paragraph 23 above).",
"63. It is not the Court ’ s task to take the place of the competent authorities in determining whether a grave risk exists that the child would be exposed to psychological harm within the meaning of Article 13 of the Hague Convention if she returned to the United Kingdom. However, the Court is in a position to ascertain whether the domestic courts, in applying and interpreting the provisions of that convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child ’ s best interests (see, amongst other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 32, § 68).",
"64. The Court observes that it was the applicant ’ s estranged wife who opposed the child ’ s return. It was therefore for her to make and to substantiate any potential allegation of specific risks under Article 13 (b) of the Hague Convention (see paragraph 38 above). While this provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerns only situations which go beyond what a child might reasonably be expected to bear (see X v. Latvia, cited above, § 116, and Maumousseau and Washington, cited above, §§ 69 and 73 ).",
"65. In the instant case, the applicant ’ s wife objected to the child ’ s return to the United Kingdom, giving two reasons. The first was essentially the break-up of the marriage, and the second her fear that the child would not be allowed to leave the United Kingdom (see paragraph 9 above).",
"66. The Court considers that both of these arguments fell short of the requirements of Article 13 (b) of the Hague Convention which were described above. The domestic courts nevertheless proceeded with the case, assessing the said Article 13 (b) risks in view of what appears to be a rather arbitrary refusal of the child ’ s mother to return with the child as discussed in paragraph 60 above.",
"67. In addition to restating consistently that the exceptions to return under the Hague Convention must be interpreted strictly (see X v. Latvia, cited above, § 116), this Court has also specifically held that the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test (see mutatis mutandis, G.S. v. Georgia, no. 2361/13, § 56, 21 July 2015).",
"68. Nothing in the circumstances unveiled before the domestic courts objectively ruled out the possibility of the mother ’ s return together with the child. It was not implied that the applicant ’ s wife did not have access to UK territory (see, mutatis mutandis, Maumousseau, cited above, § 74) or that she would have faced criminal sanctions upon her return ( see, a contrario, Neullinger, cited above, §§ 149 and 150). In addition, nothing indicated that the applicant might actively prevent M.J. from seeing her child in the United Kingdom or might deprive her of parental rights or custody ( see, mutatis mutandis, Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). Instead, the appellate court upheld the conclusion and the reasoning of the lower court that the child ’ s separation from the mother would have negative irreversible consequences, adding that it was so because since the abduction the child had been under her mother ’ s care practically round the clock, and her contact with the applicant had been rare (see paragraph 23 above).",
"69. The alternative part of the appellate court ’ s ruling, namely its holding that the child ’ s return to the United Kingdom with the mother would not have a positive impact on the child ’ s development, because M.J. ’ s departure from Poland would be against her will (see paragraph 23 above), must be considered equally misguided. The domestic court has clearly gone beyond the elements which ought to have been assessed under Article 13 (b) of the Hague Convention. Moreover, even in doing so, it seemed to have completely ignored the remaining conclusions of the RODK ’ s experts, namely that the child, who was apparently adaptable, was in good physical and psychological health, was emotionally attached to both parents, and perceived Poland and the United Kingdom as on an equal footing (see paragraph 16 above).",
"70. Lastly, the Court observes that the issues of custody and access are not to be intertwined in the Hague Convention proceedings (see paragraph 38 above, and see also Maumousseau, cited above, § 69 ). Consequently, whether in the light of international law or of domestic law, it was erroneous for the family court in the instant case to assume that if returned to the United Kingdom the child would be placed in the applicant ’ s custody or care.",
"71. The Court also observes that, as regards the length of the impugned domestic proceedings, despite the recognised urgent nature of the Hague Convention proceedings, a period of one year elapsed from the date on which the applicant ’ s request for the return of the child was registered with the Grudziadz District Court to the date of the final decision. No explanation was put forward by the Government for this delay.",
"72. Consequently, even though the six-week time-limit is non-obligatory under the Hague Convention (see paragraph 3 3 above), the Court considers that exceeding it by forty-five weeks, which is more than eightfold, in the absence of any circumstances capable of exempting the domestic courts from the duty to strictly observe it, does not meet the urgency of the situation and is not in compliance with the positive obligation to act expeditiously in proceedings for the return of children (see Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Karrer v. Romania, no. 16965/10, § 54, 21 February 2012; R.S. v. Poland, no. 63777/09, § 70, 21 July 2015; Blaga v. Romania, no. 54443/10, § 83, 1 July 2014; and Monory, cited above, § 82; see also, a contrario, Lipkowsky (dec.), cited above ).",
"73. In conclusion, in the circumstances of the case seen as a whole and notwithstanding the respondent States ’ margin of appreciation in the matter, the Court considers that the State failed to comply with its positive obligations under Article 8 of the Convention.",
"74. In view of the above conclusion, it is unnecessary that the remainder of the applicant ’ s complaint about the allegedly defective procedure be examined by the Court.",
"75. There has accordingly been a violation of Article 8 of the Convention.",
"76. Lastly, the Court observes that, as the child has lived with her mother in Poland for over three years and a half, there is no basis for the present judgment to be interpreted as obliging the respondent State to take steps ordering the child ’ s return to the United Kingdom.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE DOMESTIC COURTS ’ FAILURE TO ISSUE AN INTERIM CONTACT ORDER",
"77. In his observations on the admissibility and the merits of the case which were submitted to the Court on 19 January 2015, the applicant made an additional complaint, namely that the Polish family court failed to secure the exercise of his right of contact during the Hague Convention proceedings. In result, his contact with the child was irregular and rare, as it was at the absolute discretion of the abducting mother. That, in the applicant ’ s view, was in breach of Article 21 of the Hague Convention and in violation of his and his daughter ’ s right for respect for their family life under Article 8 of the Convention.",
"78. The Court considers that the above grievance cannot be viewed as an integral part of the applicant ’ s main complaint, which concerned the dismissal of his Hague Convention request and the features of these proceedings in so far as they might have influenced that outcome. Consequently, the applicant ’ s allegation that his contact was not secured by the domestic court during the return proceedings must be examined as a separate complaint. It is not open to the Court, however, to set aside the application of the six-month rule even in the absence of the relevant objection from the Government (see, among many other authorities, Wereda v. Poland, no. 54727/08, § 57, 26 November 2013; Belaousof and Others v. Greece, no. 66296/01, judgment of 27 May 2004, § 38; Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008; Tsikakis v. Germany, no. 1521/06, § 55, 10 February 2011; and Ciornei v. Romania, no. 6098/05, § 19, 21 July 2009).",
"79. In view of these considerations, it must be noted that the examination of the merits of the applicant ’ s request for contact arrangements was stayed by the Grudziądz District Court on 28 February 2013 until the termination of the divorce proceedings (see paragraph 28 above). The latter proceedings ended on 24 June 2013 with the decision of the Gdańsk Court of Appeal (see paragraph 29 above). The applicant informed the Court that on 28 November 2014 a decision on contact arrangements had been issued (see paragraph 3 1 above). The latter development, however, is of no importance since the Hague Convention proceedings, for the duration of which the applicant sought to have contact with his child, ended on 14 October 2013 (see paragraph 22 above).",
"80. Having regard to the above, the Court finds that the applicant ’ s complaint that the Polish family court failed to secure his right of contact during the return proceedings has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"81. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"82. In his application form, the applicant claimed 20, 000 euros ( EUR ) in respect of non-pecuniary damage. In his subsequent submissions on just satisfaction, he claimed EUR 1, 886 in respect of pecuniary damage, representing loss of income when the applicant was absent from work to participate in the impugned domestic court proceedings. At that point, the applicant also claimed EUR 50, 000 in respect of non ‑ pecuniary damage.",
"83. The Government submitted that no causal link existed between the applicant ’ s Article 8 application and the pecuniary damage which he had allegedly suffered. Moreover, they argued that the non-pecuniary damages sought were excessive and did not correspond to what had originally been claimed by the applicant.",
"84. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant must have suffered distress and emotional hardship, as a result of the Polish court ’ s refusal to order her daughter ’ s return to the United Kingdom, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 9 ,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"85. The applicant also claimed EUR 7, 447.74 for costs and expenses incurred in relation to the proceedings before domestic courts and EUR 3,000 for those incurred before the Court. The former amount comprised EUR 5,473.54 of the applicant and his witness ’ s travel expenses (transportation, hotels and parking fees ) incurred between December 2012 and October 2013 and EUR 1,974.2 of various court and translation fees.",
"86. The Government argued that only costs actually incurred in the preparation and defence of the applicant ’ s case before the Court should be taken into consideration.",
"87. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6, 145 covering costs under all heads.",
"C. Default interest",
"88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
52 | Rinau v. Lithuania | 14 January 2020 | This case concerned a German father’s efforts to return his daughter from his former Lithuanian wife after court orders in his favour. The applicants – father and daughter – complained in particular about the Lithuanian authorities’ handling of the proceedings for the child’s return to Germany. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of both applicants, finding that, overall, the conduct by the Lithuanian authorities had fallen short of what was required of the State under that provision. It considered in particular that it was clear that the legislature and executive had attempted to influence the decision-making process in favour of the mother, despite the court orders in favour of the father, which should have been rapidly enforced in Lithuania. Among other factors, actions by the Supreme Court and the Supreme Court’s President had led to “procedural vagaries” which had contradicted the aims of international and European Union rules on child custody. | International child abductions | Applications lodged by the parent whose child had been abducted by the other parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The first applicant was born in 1969. The second applicant is his daughter; she was born in 2005 (also see paragraph 8 below). They live in Bergfelde, Germany.",
"6. In July 2003 the first applicant married a Lithuanian citizen, I.R. They lived in Bergfelde, Germany, where their marriage was registered. The spouses also chose German law to be applicable to their marriage.",
"7. From a previous marriage I.R. had an older son, E.M., who was born in 1992.",
"8. On 11 January 2005 a daughter, Luisa (the second applicant), was born to the couple in Germany. Parental responsibility was exercised jointly by both parents. In the course of March 2005 the spouses began living separately. The child remained with her mother but maintained frequent contact with her father. At a later stage, divorce proceedings were initiated by the first applicant before the Oranienburg District Court ( Amtsgericht Oranienburg ) in Germany.",
"9. In May 2005 the second applicant was issued with a German passport.",
"A. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction",
"10. On 21 July 2006, the first applicant agreed that his wife should take their daughter to Lithuania for two weeks’ holiday, on condition that she return to Germany by 6 August 2006.",
"11. When the child and mother did not return to Germany, the first applicant started court proceedings in Germany. An arrest warrant in respect of I.R. was issued by the German authorities.",
"12. On 14 August 2006 the Oranienburg District Court terminated the mother’s joint custody of their daughter and awarded provisional custody to the applicant until divorce proceedings were completed. The German court also granted the first applicant the exclusive right to decide questions relating to his daughter’s passport.",
"13. That decision was upheld by the Brandenburg Regional Court ( Oberlandesgericht ) on 11 October 2006, which dismissed an appeal by I.R.",
"14. On 30 October 2006 the first applicant asked the Klaipėda Regional Court in Lithuania for a permit allowing him to take his daughter back to Germany. He relied on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see paragraph 145 below), and also on Council Regulation (EC) No. 2201/2003 (also known as “the Brussels II bis Regulation”, hereafter “Regulation (EC) No. 2201/2003”; for the text see paragraph 150 below).",
"15. On 15 November 2006 the State Child Rights and Adoption Service under the Ministry of Social Security and Labour ( Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba prie Socialinės apsaugos ir darbo ministerijos; hereafter “the State Child Rights and Adoption Service”), which is also the “Central Authority” within the meaning of Article 53 of Regulation (EC) No. 2201/2003 (see paragraphs 134 and 150 below), announced its conclusion regarding the second applicant’s return. The child care authority noted that the girl had lived in Germany until being taken to Lithuania and that I.R. had kept the child in Lithuania unlawfully. The child care specialists had talked to I.R., but could not persuade her to return the child to Germany and had concluded that the child had not yet reached an age at which it would be reasonable to hear her opinion. The child care specialists noted, on the one hand, that the child had been examined, on I.R.’s initiative, by child development specialists at Vilnius University Hospital, and those specialists had considered that separation of the child from her mother and brother at that moment would negatively affect the girl’s emotional health and potentially cause problems for her development. On the other hand, there was no proof that the first applicant would not be capable of taking care of his daughter or that any other kind of harm might be caused to her upon her return to Germany. The child care specialists also pointed out that, pursuant to Article 11 § 4 of Regulation (EC) No. 2201/2003, “a court cannot refuse to return a child on the basis of Article 13 (b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return” (see paragraph 150 below). Accordingly, even if the court were to establish that there was a substantial risk that the girl would sustain psychological harm if returned to Germany, it should in addition verify whether German institutions would take appropriate measures to protect the girl’s interests after her return. It also transpires from the documents in the case that the representatives of the State Child Rights and Adoption Service reiterated that view during the court hearing.",
"16. I.R., who was represented by a lawyer, V.Š., admitted before the Klaipėda Regional Court that it was definitely not her intention to return to Germany. Neither did she agree that the second applicant should be returned there but argued that her daughter should stay with her in Lithuania because a mother’s care was very important for a child. The first applicant was also present at that hearing, together with a lawyer.",
"17. By a ruling of 22 December 2006, the Klaipėda Regional Court refused the first applicant’s request. It held that because of the girl’s bond with her mother I.R. and brother E.M., her return to Germany ‒ where her mother might be arrested, even if only temporarily ‒ could cause the child serious psychological harm. As to E.M., he had a psychological ailment and refused to return to Germany, and I.R. could not leave him alone in Lithuania. For the first-instance court, this constituted grounds not to return the second applicant under Article 13 (b) of the Hague Convention. The Klaipėda Regional Court considered that the second applicant’s habitual place of residence, and thus her familiar and safe environment ‒ which was Lithuania ‒ could be changed only if there was a court decision regarding her custody.",
"18. It transpires from the documents before the court that in January 2007 the second applicant was issued with a permit granting her permanent residence in Lithuania. That same month I.R. declared her daughter’s place of residence to be Klaipėda, Lithuania.",
"19. On 15 March 2007 the Court of Appeal granted an appeal lodged by the first applicant and quashed the Klaipėda Regional Court’s decision. The Court of Appeal noted that although I.R., who at that stage was represented by a lawyer K.L., had taken her daughter to Lithuania lawfully − because she had the father’s agreement − her choice not to return the child to Germany and instead to keep her in Lithuania was unlawful both under Article 3 of the Hague Convention and under Article 2 § 11 of Regulation (EC) No. 2201/2003. Such unlawful retention of the child in a place which was not her habitual place of residence breached the custody rights of the first applicant, who had taken care of the second applicant before she was taken to Lithuania and who intended to continue taking care of her in future. The first applicant noted that on 2 January 2007 the criminal proceedings against I.R. had been discontinued in Germany and that, since those proceedings had been brought on the basis of a private prosecution, they could not be repeatedly reopened.",
"The Court of Appeal pointed out that since the criminal proceedings instituted against I.R. for unlawful retention of the child had been discontinued in Germany, there was no reason to believe that, if returned to Germany, the child would be separated from her mother. The Court of Appeal also noted that the proceedings in the Lithuanian courts were concerned only with the return of the child, who was being retained unlawfully in Lithuania, and not with questions relating to the child’s custody, such as the possibility of her living with her brother or her mother. This was a principle that likewise had its origins in Article 19 of the Hague Convention (see paragraph 145 below). In fact, as noted in the preamble to the Hague Convention, its aim was to protect children internationally from the harmful effects of their wrongful removal or retention (ibid.).",
"Moreover, there was no reason to doubt that a competent court in Germany would be capable of properly evaluating factual circumstances relating to matters of custody. The Court of Appeal observed that a consequence of unlawful removal was that the person with custody rights lost the possibility of exercising those rights in the child’s place of residence. The child, for her part, was deprived of that person’s care in a place that used to be her habitual place of residence. Accordingly, harm was caused to both the person with custody rights and the child and would continue until a lawful state of affairs was restored.",
"20. The Court of Appeal also noted that the burden of proof in demonstrating a grave risk that the child’s return would expose her to harm lay with the person who was objecting to the return. In the instant case, although − as noted in the report of the Klaipėda University Pedagogical Faculty social science (psychology) specialists − the return of the second applicant might cause her psychological hardship ( psichologiniai sunkumai ), there was no reason to believe that such hardship would amount to an intolerable situation or exceed the normal distress which the return of a small child to his or her country of origin would cause. Accordingly, there was no reason to apply Article 13 (b) of the Hague Convention.",
"21. The Court of Appeal ordered I.R. to return her daughter to Germany by 15 April 2007. In the event of her failure to do that, it would be for a Lithuanian bailiff to transfer the girl to her father in Klaipėda and in the presence of the Klaipėda child care authority.",
"22. Under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003 (see paragraph 134 below, which also contains the full title of this law), the decision of the Court of Appeal was final, that is to say, not amenable to an appeal on points of law. Under Article 339 of the Code of Civil Procedure (hereinafter “the CCP”), it also became enforceable from the day of its adoption (see paragraph 136 below).",
"23. On 23 April 2007 the Klaipėda Regional Court, accepting a plea by I.R. that she and her son E.M. needed more time to prepare themselves psychologically for the girl’s return to her father, issued an order suspending enforcement of the Court of Appeal decision. The Klaipėda Regional Court disregarded the first applicant’s pleading that as early as 22 March 2007 he had contacted the child care authorities in Klaipėda and the State Child Rights and Adoption Service with an offer in good faith to help I.R. to execute the Court of Appeal ruling of 15 March 2007, including helping her financially to travel to and stay in Germany during the transfer of the child, but I.R. had rejected those proposals, seeking to delay the execution proceedings and abusing her procedural rights.",
"24. By a ruling of 4 June 2007 the Court of Appeal quashed the Klaipėda Regional Court’s decision of 23 April 2007. The appellate court noted, on the one hand, that the situation referred to by I.R. – that the second applicant’s return would be harmful for I.R. and for her son E.M. ‒ could last indefinitely. On the other hand, there was no evidence that returning the child to her father within the time-limit set earlier would cause her any harm or not be in her interests, nor had this been the conclusion of the first-instance court. The paramount concern was to protect the interests of the child, who was being held in Lithuania unlawfully, and any delay in executing the court decision for her return ran counter to the Court’s ample case-law concerning States’ positive obligations in this field.",
"25. According to the documents submitted by the Government, on 18 May 2007 I.R. signed an agreement with the law office of K.Č. and R.B., whereby I.R. agreed to pay 300 Lithuanian litai (LTL) (approximately 87 euros (EUR)) per hour for representation in the case concerning the second applicant’s return to Germany. The lawyers in question took on the obligation to represent I.R. in the Lithuanian courts up to the level of the Supreme Court.",
"B. The bailiff’s attempts to execute the Court of Appeal decision of 15 March 2007 for the second applicant’s return in 2007",
"26. Given that I.R. had not returned the second applicant within the prescribed time-limit, on 13 June 2007 at the first applicant’s request the Klaipėda Regional Court issued a writ of execution ( vykdomasis raštas ) which stated that “I.R. [was] obliged to return the second applicant to Germany before 15 April 2007 [see paragraph 21 above]. Should the court order for the transfer not be executed before that date, it is for the bailiff to take measures, in accordance with the rules set out in the Code of Civil Procedure, by taking the second applicant from I.R. and transferring the girl in Klaipėda city on a date agreed with the first applicant, and in the presence of the Klaipėda city child care authorities”.",
"27. In addition, on 9 July 2007 the first applicant presented the bailiff with a letter in which he stated that, in order to protect his daughter’s interests and to protect her from any harm during the transfer process − and also wishing to help I.R. to voluntarily execute the court decision for the girl’s return − he proposed to cover all costs for I.R. and the child related to their travel to Germany. He also proposed that he would provide I.R. with financial support and somewhere to live in Germany until she could find herself a place to live, and would also help her with other organisational matters. The first applicant also presented the bailiff with a document from a private company in Germany which agreed to employ I.R.",
"28. On 9 July 2007 the bailiff drew up an order ( patvarkymas ), asking I.R. to explain how she envisaged that the court decision could be executed in a friendly way.",
"29. The first applicant then wrote to the bailiff stating that he would arrive in Lithuania for the transfer, and asked the bailiff to make arrangements for that transfer to take place on 30 July 2007. On that date the bailiff issued the decision that the transfer would take place on 3 August 2007, with the participation of the Klaipėda city child care authorities. However, the bailiff could not subsequently serve that decision on I.R. because she could not be found at either her home address in Klaipėda or her place of work at Klaipėda University nor could she be reached on her telephone. On 3 August 2007 the bailiff announced that a search would be launched for I.R. and the second applicant, and informed the police of this fact. I.R. contacted the bailiff on 5 September 2007, stating that in August she had been on holiday and claiming that she had not been avoiding the bailiff. The bailiff therefore called off the search. On 5 September 2007 he again ordered I.R. to bring the second applicant to Klaipėda city child care authorities’ premises on 12 September for her transfer to the first applicant.",
"30. As confirmed by the bailiff and also by the signatures of the first applicant, of I.R., and of the representative of the Klaipėda child care authority, I.R. arrived at the meeting on 12 September 2007, but refused to execute the court decision for the second applicant’s transfer, or to disclose her daughter’s whereabouts. The bailiff also noted that the first applicant had asked I.R. to give him the opportunity to communicate with their daughter, but I.R. had refused that request. On the same day, the bailiff announced a police search for the second applicant, and asked the Klaipėda City District Court to decide whether I.R. should be issued with a fine for having ignored the court decision.",
"31. The court decisions on file also show that on 11 September 2007 the bailiff refused I.R’s request to suspend the execution proceedings, despite I.R.’s submission that separation would be traumatic because of the second applicant’s close family ties to her and to her brother.",
"32. The Klaipėda Regional Court on 4 December 2007 upheld the Klaipėda City District Court’s decision of 23 October 2007, and underlined that the merits of the question of the second applicant’s return had already been decided by the Court of Appeal ruling of 15 March 2007 (see paragraphs 19-21 above). After the latter decision, I.R.’s attempts to have the merits of the question re ‑ examined − at the stage when the bailiff was executing the court decision − by invoking Article 13 § 1 (b) of the Hague Convention, had no basis in law. The Klaipėda Regional Court also pointed out that on 4 June 2007 the Court of Appeal had already examined the question of whether execution of the decision to return the second applicant could be suspended on the grounds of I.R.’s son’s state of health and his separation from the second applicant, but had dismissed the request as unfounded (see paragraph 24 above). Accordingly, such arguments could not be examined again.",
"33. I.R. appealed against the bailiff’s decision, but her complaint was dismissed by the Klaipėda City District Court on 23 October 2007. I.R. then lodged a further appeal, to which the first applicant responded that by such actions I.R. was abusing her procedural rights and being dishonest.",
"34. Afterwards, having received the 22 October 2007 ruling of the Supreme Court’s President ordering suspension of the execution of the Court of Appeal ruling of 15 March 2007 (see paragraph 73 below), on 29 October 2007 the bailiff issued a decision ( patvarkymas ) suspending execution of the second applicant’s return to the first applicant and also halting the search for the second applicant.",
"C. The public interest in the case in Lithuania and State authorities’ and politicians’ comments and other involvement in the matter, as submitted essentially by the applicants",
"35. The applicants submitted numerous pieces of evidence showing the public interest in their case and the Lithuanian State authorities’ and politicians’ involvement in it, including statements of various officials, official documents of Lithuanian and European Union institutions, and publications in various Lithuanian Government Internet sites and the media. The facts constituting the evidence submitted by the applicants were not challenged by the Government and are also corroborated by the information available from the public sources (see also paragraph 210 below).",
"36. As noted by the applicants, as early as 6 December 2006 and in a television documentary entitled “ SOS Pagalba ” (translated as “SOS Help”), G.A., who was the director of the Klaipėda child care authority, made the following comments regarding the applicants’ situation (regarding her subsequent position see also paragraph 60 below):",
"“How can a mother be accused of kidnapping her own child? Father and mother must both take care of the child. And if there is a conflict situation in the family, then that can only be resolved in court.”",
"“As a mother I say that this is not a good step to take. I believe that the child has to grow up with his or her mother and stay in contact with the father. This is my opinion.”",
"“This mother is right – it is her child, and we should all make an effort to help her.”",
"“I am asking myself – what abduction? The mother has taken her child along with her. I would do the same, no one could take my child away from me.”",
"37. According to information published on 5 April 2007 on the Internet site of the Seimas (the Parliament of the Republic of Lithuania), A.L., who was the Chairman of the Seimas Committee on Human Rights, commented that “Lithuania was not ready to defend the rights of Lithuanian citizens who had married foreigners or the rights of their children”. After the investigation which the Committee conducted on the basis of I.R.’s request, the Chairman considered that in the applicants’ case the child care specialists had acted only formally, having failed to evaluate the impact which the return to Germany could have on the second applicant. He also “rhetorically asked”: “the Hague Convention of 1980 and the Council Regulation (EC) No. 2201/2003 formally oblige to return [the second applicant] to her country of origin in order to avoid consequences negative for the child. However, if one would disregard the formal law, what harm could being with a loving mother cause to a two year old child?” According to the information on the Seimas Internet site, the Committee also discussed such questions as the “problem of Lithuania’s international engagements”, the European Union law which led to the situation where “the mothers from eastern Europe countries, after marriage in the West and having given birth there, lose the right to a child, when a man from western Europe turns them out of the family”. The Chairman also considered that there was no institution in Lithuania that would be effective in defending a child’s interests on an international scale.",
"38. On 7 September 2007 the press also quoted a public statement by V.A.A., a member of the Seimas who belonged to the Homeland Union ( Tėvynės Sąjunga ) political party and who, according to her CV on the Seimas website, had an educational background in music and whose interests included “family politics, children’s rights and human rights ( angažuojasi šeimos politikos, vaiko teisių ir žmogaus teisių srityse )”. She was also a member of the Seimas Committee on Legal Affairs ( Teisės ir teisetvarkos komitetas ) and the Seimas Committee on European Affairs ( Europos reikalų komitetas ). V.A.A. claimed to be “very much concerned” with the conclusions that had been provided by the State Child Rights and Adoption Service as well as its position during the court proceedings regarding the second applicant’s return to Germany (see paragraph 15 above). V.A.A. pointed out that the State Child Rights and Adoption Service was the “Central Authority” under the Hague Convention and under Regulation (EC) No. 2201/2003 and that, pursuant to Article 2 § 3 of the Law on the Implementation of EC Regulation No. 2201/2003, its role was to provide a conclusion for submission to the court hearing the case for a child’s return (see paragraph 134 below). However, her impression was that the State Child Rights and Adoption Service had only formally defended the rights and interests of the second applicant and had essentially supported the arguments of the first applicant, who had asked the courts to order that his daughter be returned to Germany. V.A.A. underlined that the conclusions provided by the State Child Rights and Adoption Service “had influence on ( įtakoja )” court decisions. It was therefore of paramount importance that those conclusions should be “just ( teisingos )”: the State Child Rights and Adoption Service should not only formally rely on the norms of international conventions. In V.A.A.’s view, analysing the factual situation, one could not comprehend how the State Child Rights and Adoption Service could have agreed to the second applicant’s return to Germany, given that before leaving for Lithuania she had lived most of her life with her mother, and had now lived most of her life in Lithuania.",
"The parliamentarian also opined that, since the second applicant had been only one and a half years old when she left Germany, her connection with the environment there had been minimal. In Lithuania, however, she had already established close connections with other members of her (Lithuanian) family and had become used to that environment. The member of the Seimas considered that the second applicant’s return to Germany would thus put the child in an intolerable situation, and would possibly cause irreparable damage to her mental and other development. V.A.A. stated that she had read the conclusion of the State Child Rights and Adoption Service which it had submitted to the court but considered that the Service had not taken the relevant circumstances properly into account and therefore “had not performed its main function and task”, and “in this particular case” had failed “to protect the rights and lawful interests” of the second applicant. V.A.A. thus urged the State Child Rights and Adoption Service to properly carry out its functions when protecting the second applicant’s interests, also pointing out that that institution was overseen by the Ministry of Social Security and Labour.",
"39. By means of a written request dated 7 September 2007, six members of the Seimas elected in the constituencies of the Klaipėda region or those who stood for parliamentary elections in those constituencies and/or lived there (V.Č., V.G., V.S., A.S., I.Š. and I.Ro.) submitted a written request to the bailiff in charge of executing the Lithuanian court’s order for the transfer of the girl into her father’s custody, asking him to refrain from carrying out that duty. The parliamentarians stated that they intended to petition the President of the Republic and the Minister of Justice, requesting that the girl not be returned to her father.",
"40. On 9 September 2007 the President of the Republic wrote to the first applicant, stating that he was very much aware of the case, which had attracted wide media attention. However, the President highlighted that he could not exert any influence over the courts or provide any kind of recommendation as to how cases should be decided, for to do so would be unconstitutional. The President also pointed out that, whilst understanding how important a court decision was in the first applicant’s case, he had never expressed his view publicly in order not to breach the principle of the independence of the courts. The President expected that the case would be examined objectively, taking into account the interests and needs of the second applicant.",
"41. On 21 September 2007, a group of forty-one members of the Seimas, on the initiative of the Seimas Committee on Human Rights, asked the Constitutional Court to examine the question of whether Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003 ‒ pursuant to which no appeal on points of law was possible in cases concerning a child’s return effected under that Regulation (see paragraph 134 below) ‒ contradicted the constitutional principle of the rule of law.",
"42. In that context, the press also quoted another member of the Seimas Committee on Human Rights, A.Sa., who also signed a petition seeking referral of the question to the Constitutional Court and stated that he did “not understand how such a situation was possible. Maybe the German courts adopt ( priima ) reasonable decisions, but this is a precedent which the Constitutional Court should examine. Lithuania is a member of the European Union, and there are plenty of such marriages. Does that mean that we shall always give in and our children will always be taken away to foreign countries?”",
"43. The Constitutional Court initially accepted the request for examination but, two years later, in December 2009, it discontinued the proceedings because on 13 November 2008 the Seimas had adopted a new Law on the Implementation of EC Regulation No. 2201/2003, and the former law ceased to be applicable (see paragraph 134 in fine below).",
"44. According to the Lithuanian news agency ELTA, in September 2007 members of the Liberals’ Movement ( Liberalų Sąjūdis ) political faction in the Seimas asked the President of the Republic to examine the possibility of granting Luisa Rinau Lithuanian citizenship urgently and by way of exception (see paragraph 132 below).",
"45. According to the report of the Seimas Committee on Human Rights activity for the period 10 September 2007 to 1 February 2008 − approved at the Committee’s meeting of 13 March 2008 − on 10 October 2007, exercising parliamentary oversight as regards the protection of children’s rights in the context of Lithuania’s international agreements, the Committee discussed, inter alia, the question “Regarding the quality of the actions of the child care authorities’ employees and the possibility of providing legal aid for Lithuanian citizens in the German courts”. The Committee considered that the conclusions which the State Child Rights and Adoption Service had presented to the Lithuanian courts regarding the second applicant’s return to her place of origin – Germany – had not reflected accurately the social situation of the second applicant, had not evaluated her connection with her mother and brother, and various other aspects. The Committee considered that such “an inappropriate conclusion” had done “irreparable harm to the interests of the child, and could also influence court decisions in Germany”. The Committee, having taken into account the harm which had been caused by the child care authorities’ formal attitude ( formalus požiūris ) towards the interests of the child, demanded that the Minister of Social Security and Labour (who supervised that child care authority), declare that those employees had not performed their duties correctly and also order the child care authority to submit another conclusion which would fully reflect the social situation of the second applicant, and also evaluate the expert conclusions regarding possible damage to the girl’s mental state should she be returned to Germany.",
"46. In that context, on 20 September 2007 members of the Liberals’ Movement in the Seimas had met the employees of the State Child Rights and Adoption Service “who had personally taken part in deciding Luisa’s fate”. According to the press article on the internet portal AINA ( Aukštaitijos naujienų ir žinių portalas ) on the same day under the heading “Luisa’s story – an example of Lithuanian institutions’ failure to act ( Luisos istorija – Lietuvos institucijų neveiklumo pavyzdys )”, the members of the Liberals’ Movement political faction had been inquiring what steps the responsible authorities would take so that the second applicant’s story would have a happy ending, and “what they would do to truly help the children of Lithuania in protecting their interests ( ką darys kad realiai padėti Lietuvos vaikams )”.",
"The article quoted G.Š., a member of the Seimas Committee on Human Rights who belonged to the Liberals’ Movement, as having greeted the State Child Rights and Adoption Service employees at that meeting with the statement “My dears, you are wishing to wash off your tainted tunic ( Mielosios, jūs norite nusiplauti savo suteptą mundurą )” and having accused them of lacking patriotism. He was quoted as having said that “the ambivalence, lack of action and lack of simple humanity ( abejingumas, neveiklumas ir paprasčiausio žmogiškumo stygius ) of the State child care and adoption institution makes one angry – whereas that institution should be defending the rights and interests of the child, defending a Lithuanian citizen. We must ascertain whether such employees are fit for their job”.",
"The same article quoted another member of the Liberals’ Movement, D.T., who urged the State Child Rights and Adoption Service employees to put all their efforts into protecting the interests of the girl and asked “how come we are so stubborn as to not comprehend that the link between the mother and the child, responsibility for the well-being of the child, the child’s safety, link to the family and the homeland – as a great virtue – has not changed and never will change?...”. The article also stated that “the Liberals’ Movement faction has asked the President of the Republic to consider whether he could grant Lithuanian citizenship to the daughter of Lithuanian citizen I.R., who was born in Germany, by way of exception and as a matter of particular urgency ( išimties ir ypatingos skubos tvarka )” (also see paragraph 44 above).",
"47. The Seimas Committee on Human Rights also asked the Ministry of Justice to provide quality legal help to I.R. and to request that the case be moved for examination from the German courts to the Lithuanian courts, “protecting the mother’s right to raise her daughter in Lithuania”.",
"48. The Committee’s initiative was reported in the media. On 10 October 2007 Internet news portal (www.delfi.lt) quoted the Chairman of the Seimas Committee on Human Rights A.L., who elaborated that “I think the employees of the [Ministry of Social Security and Labour and Ministry of Justice] will obey the ministers’ proposals ( šių ministerijų darbuotojai paklus ministrų siūlymams ), and that the courts will also have the decency ( teismai turės garbingumo ) to reopen this case if the Prosecutor General’s Office asks for the case to be reopened on the grounds that new circumstances have appeared”. The Chairman was also reported as having stated that since March 2007 the Seimas Committee on Human Rights had tried to exert influence that every institution would perform its job properly. He also stated that if within a year the bailiff had not executed the court decision ordering the girl’s transfer, the German courts should transfer the case to the Lithuanian courts to be examined in Lithuania.",
"49. The same article of 10 October 2007 also quoted the Ombudsman for Children’s Rights, R.Š., who stated: “From the very beginning the position of the Ombudsman’s Office was that the child should be with the mother. Everywhere we talk about a family – three persons, that the mother cannot choose one child. In this situation the children would be separated. Even our laws on child adoption state that if we have brothers or sisters, one should search for adoptive parents so that siblings would not be separated. And here we have a situation when we ourselves in some way are assisting to separate the children. The children should live together – we should search for ways and possibilities for allowing them to remain in Lithuania”. The Ombudsman also pointed out that if I.R. had gone to Germany to be present at the court hearings where the question of custody was being decided [which I.R. had not done], the process would perhaps not be so “painful” now.",
"50. In both instances – in spring and autumn 2007 (see paragraphs 37, 45, 47 and 48 above) − the Seimas Committee on Human Rights was presided over by A.L., who belonged to the Liberals’ and Centre Union ( Liberalų ir Centro Sąjunga ). In August 2008 I.R. became candidate no. 30 on the list of the Liberals’ and Centre Union in the Seimas election which was to take place in October 2008.",
"51. On 13 September 2007 V.M., the Chairman of one of political factions in the Seimas, sent a letter to P.B., the Minister of Justice, asking him to pay attention to “the court decisions that had shaken the whole of Lithuania ( sukrėtė visą Lietuvą ) and that had been widely reported in the press”, pursuant to which a minor child was to be taken away from I.R. and against her mother’s will to be sent to a father who lived in Germany. V.M. wrote to the Minister of Justice asking him “to properly ascertain ( visapusiškai išsiaiškinti ) whether the court decisions have been just and lawful, even though it was plain that they contradicted elementary logic and were not humane. If the laws of our country treat such actions [namely court decisions ordering transfer of the second applicant to the first applicant] as lawful, I would ask you to initiate legislative amendments so that similar situations can be avoided in future”. V.M. also stated that “although laws were written by people, and those laws had to serve people, the State could not remain a bystander when because of dramatic circumstances human fates were being broken ( laužomi žmonių likimai ), and children have been suffering”.",
"52. According to the press statement on 21 September 2007 released by the Ministry of Justice, the Minister of Justice P.B. had asked the State Guaranteed Legal Aid Service in Klaipėda to provide I.R. with free legal aid in so far as this was possible ( pagal galimybes ).",
"53. The applicants’ story was widely reported in the media, including newspapers printing readers’ opinions. For example, on 21 September 2007, Lietuvos rytas, one of the biggest daily newspapers in Lithuania, published an article “The story of a Klaipėda resident [I.R.] – warning to other Lithuanian women”. Under that headline the daily printed letters containing statements such as “A mother had a moral right to defend herself by any means, even to murder the bailiff, should he attempt to take the child by force. Moral right is above legal right”, “It is unbelievable that Lithuania cannot defend its citizen. What kind of laws, what kind of lawyers? What is the Ministry of Justice doing?”, “A heart-breaking story. Isn’t there anyone who could defend the woman and the child? Lithuanians, wake up, do not remain unmoved, do not be blind followers of the law”.",
"54. On 26 September 2007 the first applicant wrote to the Ombudsman for Children’s Rights, R.Š. He stated that he wished to settle the question of the second applicant’s return peacefully, and that he did not wish to bring the details of his case into the public domain, in order to protect both the second applicant and her brother, who was ill, and whom the first applicant had taken care of in Germany. The first applicant was therefore particularly disturbed by what had been happening in Lithuanian politics and society regarding his case. He noted, in particular, that members of the Seimas had been exerting pressure on the Lithuanian bailiff not to execute the court decision (see paragraph 39 above). The first applicant wondered whether the Seimas had assumed the powers of the courts, since its politicians − who had not seen the evidentiary material in his case file − had been ignoring court decisions which, all the more so, complied with international law. The first applicant also stated that the politicians had been supporting the exertion of psychological pressure on him and that the Lithuanian newspapers had been printing readers’ letters where he had been demonised and called “a German pig”, “Nazi”, “fascist” and “a criminal”; there had also been public calls for violent action ( susidoroti ) towards him, the court bailiff and the first applicant’s lawyer. He was asking, rhetorically, which of the politicians would take responsibility should something happen?",
"55. In that letter the first applicant also noted that he had not been able to see his daughter in Lithuania since December 2006, because I.R. had been hiding her. He had still been able to talk to his daughter via the Internet in January and February 2007, but afterwards I.R. had banned that contact as well. He also pointed out that the Lithuanian media had failed to depict his case objectively, since they had not mentioned the international courts’ practice regarding the Hague Convention, which applied equally to fathers and mothers. The first applicant also submitted that most of the expert reports on which I.R. had relied had been prepared by experts from Klaipėda University, where I.R. had worked for a long time (also see paragraph 29 above). He expressed sadness at what had become of the Lithuanian legal system: that international treaties had been signed but not adhered to because to follow them was “inconvenient”; that a father had very few rights in Lithuania; that the politicians had been publicly supporting smear campaigns or being ambivalent towards him. He noted that, if Lithuania had not signed the Hague Convention, his only option would have been to observe helplessly as his daughter became distant from him, but that now he had a right to fight for his daughter. The first applicant expressed hope that the decisions of the Court of Appeal would be respected and executed and that Lithuania would fulfil its obligations under international law.",
"56. On 15 October 2007 I.R. met P.B., the Minister of Justice of Lithuania. The Minister promised her free legal aid in the proceedings concerning her daughter’s return to Germany. I.R. also stated to the press that “there is a legal possibility that court proceedings regarding the second applicant’s custody might be transferred from Germany to Lithuania. I asked the Minister of Justice to act as intermediary in this matter ( prašiau tarpininkavimo ), but the Minister stated that he could not help. He implied that I myself should do that with the help of a lawyer ( esą tai galiu padaryti aš pati su advokato pagalba ).”",
"57. By October 2007, almost 35,000 Lithuanian citizens had signed a petition entitled “For Luisa” demanding that the girl not be returned to her father in Germany. The petition referred both to Lithuanian legislation and to the United Nations Convention on the Rights of the Child and argued that it was in the girl’s best interests for her to stay with her mother in a familiar environment in Lithuania. The petition was addressed to the President of the Republic, the Prime Minister, the Speaker of Parliament, the Ombudsman for Children’s Rights and Germany’s ambassador to Lithuania.",
"58. In that context, in October 2007 I.R. professed in the Lithuanian press that “[I]n our country mother and child are sacred and inseparable. It is unfortunate that this principle is not being followed by the courts ( mūsų šalyje mama ir vaikas yra šventa, nedaloma. Gaila, kad šia nuostata nesivadovauja teismai )”.",
"59. In October 2007 the press also reported that I.R. had visited the prosecutor’s office in Klaipėda that month, where she had been invited for a conversation. The prosecutor D.P. noted that lawyer G.B. (see paragraph 101 below) had been defending I.R.’s interests at that time. The prosecutor also noted that the prosecutors’ office’s support for I.R. so far “had only been of a moral nature ( kol kas tiktai moralinė )”, but that the complicated matter could possibly be resolved if the laws on dual citizenship were amended. The prosecutor stated that “if the second applicant were to become a Lithuanian citizen, maybe it would be possible to help her somehow. We must explore all possibilities.”",
"60. In October 2007 the press also quoted G.A., the director of the Klaipėda child care authority, as saying that she had attempted to persuade the first applicant to renounce custody rights in respect of the second applicant but had been unsuccessful. The director stated that the first applicant had been categorical, but that it also appeared that he “genuinely loved his daughter”.",
"61. On 19 September 2007 the press reported that I.R. would have to hide her daughter not only from her father, but also from Lithuanian police, since the bailiff had undertaken to announce a police search for her (see paragraph 29 above). The press also wrote that “from unofficial sources it is known that in these days I.R. intends to travel to Vilnius, to approach the highest civil servants and politicians, and in this manner fight for the right to bring up her daughter herself”.",
"62. On 3 June 2008 the Minister of Justice P.B. met I.R. According to the Ministry of Justice press release, that week “the Lithuanian Government approved Lithuania’s position with regard to examining the case under the urgent preliminary ruling procedure of the European Court of Justice” (see paragraph 95 below). The Minister of Justice also stated that it was important to support the doubt raised by the Supreme Court of Lithuania, namely whether Germany in fact had jurisdiction in such a child return case. It was therefore indispensable to clearly establish the intention behind the European Union’s legal norms.",
"63. On 2 September 2008 − that is to say already after the ruling of the European Court of Justice (hereafter “ECJ”) and the follow-up ruling by the Supreme Court (see, respectively, paragraphs 98-103 and 106 below) − A.L., who was the chairman of the Seimas Committee on Human Rights, replied to the first applicant in writing that the Committee had examined the child care specialists’ conclusions about the relationship between I.R. and her children. According to the Chairman, I.R. was “a mother beyond reproach ( nepriekaištinga motina )”, and the first applicant’s fear about her negative influence on the children had no basis. The Chairman stated that, in the Committee’s view ( mūsų žiniomis ), I.R. could not move to Germany because of her son’s ailment. The Chairman thus suggested that the first applicant should “seriously consider the possibility of moving to Lithuania”, so that the second applicant would not be separated from her mother and brother.",
"D. Endeavours by I.R. and the Lithuanian Prosecutor General to have the Lithuanian court proceedings reopened",
"64. On 17 May 2007 the Prosecutor General’s Office in Lithuania received I.R.’s written plea requesting ‒ on the basis of Article 366 § 1 (9) of the Code of Civil Procedure (see paragraph 136 below; hereafter “CCP”) ‒ that the court proceedings concerning the second applicant’s return be reopened.",
"65. On 4 June 2007 and 13 June 2007, respectively, I.R. and the Prosecutor General of Lithuania, who sought to defend the public interest, attempted to have the Lithuanian court proceedings for the child’s return reopened. They relied on Article 366 § 1 (2 and 9) of the CCP and argued that in the ruling on 15 March 2007 (see paragraphs 19-21 above) the Court of Appeal had failed to take into account the fact that there would be a grave risk to the girl’s well-being if she were to return to Germany. By that time she had lived in Lithuania for a considerable period and was integrated into the Lithuanian environment. If she were removed from Lithuania, she would lose her solid connection with her mother and be placed in an unfamiliar linguistic environment. I.R. also referred to the state of health of her son, E.M., claiming that he was afraid of losing his mother should she decide to go to Germany with the second applicant.",
"66. On 19 June 2007, the Klaipėda Regional Court refused to accept both applications for examination. The court also reiterated that all questions relating to the parents’ divorce and the custody of their daughter fell within the jurisdiction of the Oranienburg District Court.",
"67. Both I.R and the Prosecutor General appealed against the Klaipėda Regional Court’s decision. The first applicant, in turn, asked that their appeals be dismissed. He submitted, among other things, that the Prosecutor General had ignored the aims of the Hague Convention and of Regulation (EC) No. 2201/2003 and had also disregarded Article 8 of the Convention.",
"68. The Court of Appeal upheld the Klaipėda Regional Court’s decision on 27 August 2007. The Court of Appeal also underlined that the 15 March 2007 ruling of the Court of Appeal (see paragraphs 18-20 above) was not amenable to reopening under Article 365 § 1 of the Code of Civil Procedure.",
"69. The Prosecutor General and I.R. lodged an appeal with the Supreme Court against the rulings of the Klaipėda Regional Court and the Court of Appeal of 19 June 2007 and 27 August 2007, respectively, regarding the reopening of civil proceedings.",
"The first applicant responded by arguing that the reopening of civil proceedings for the child’s return would contradict the very essence of the goal set by Regulation (EC) No. 2201/2003, namely that such cases should be decided without undue delay and within six weeks of the lodging of the application for the child’s return. The first applicant pointed out that on 27 August 2007 the Court of Appeal had correctly stated that the 15 March 2007 Court of Appeal ruling could not be amenable to reopening as the principles of concentration of civil proceedings and fairness would otherwise be contradicted and the child’s return would be delayed indefinitely. The first applicant also submitted that, in the light of the aim of Regulation (EC) No. 2201/2003 and of the Law on the Implementation of EC Regulation No. 2201/2003, neither cassation nor reopening of proceedings would be permissible procedural measures. He relied on the Hague Convention and on Article 8 of the Convention, maintaining that an unjustified application for the reopening of civil proceedings would breach his right to respect for family life.",
"70. On 16 October 2007, the Supreme Court’s chamber for the selection of cases to be examined in appeals on points of law ( teisėjų atrankos kolegija ) accepted for examination the appeal on points of law for reopening of proceedings lodged by the Prosecutor General, who was acting to protect the public interest.",
"In that context, on 19 October 2007 the Supreme Court’s chamber also accepted for examination the appeal on points of law lodged by I.R., who had also asked the Supreme Court to suspend execution of the 15 March 2007 Court of Appeal ruling for the second applicant’s return (see paragraphs 19-21 above). The Supreme Court’s chamber pointed out, however, that pursuant to Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, no appeal on points of law was possible in proceedings involving the return of a child which have been instituted under Regulation (EC) No. 2201/2003. It followed that there was no legal basis on which to grant I.R.’s request for suspension of the execution of the Court of Appeal ruling of 15 March 2007 ordering her daughter’s return to Germany. The chamber also indicated that its ruling was “final and not amenable to appeal”.",
"71. On 22 October 2007 the Prosecutor General submitted to the Supreme Court a fresh request for suspension of execution of the Court of Appeal’s ruling of 15 March 2007, pointing out that at that time execution of that court decision had already begun, the police and the bailiff having taken measures to establish the child’s whereabouts and to return her to Germany. The Prosecutor General pleaded that there was a theoretical possibility that the proceedings in the civil case which had been concluded by the final decision of the Court of Appeal of 15 March 2007 might be reopened. Afterwards, the courts could theoretically decide not to return the child to Germany, on the basis of the exceptions provided for in the Hague Convention. If that was the situation, this new court decision would remain impossible to execute, because by that time the child would be in Germany.",
"72. It was also the Prosecutor General’s view that in order to give priority to the best interests of the child, especially to a young child’s need to live in a familiar and stable environment, it was necessary to suspend the execution of the Court of Appeal ruling of 15 March 2007 “so that the child’s status quo would be maintained whilst the court proceedings were ongoing, and that possible damage to the child’s mental state and development could be avoided”. The Prosecutor General thus asked that temporary protective measures be applied.",
"73. The same day, 22 October 2007, the President of the Supreme Court, V.G., unilaterally adopted a ruling suspending the execution of the Court of Appeal judgment of 15 March 2007 until the Prosecutor General’s appeal on points of law regarding the possibility of reopening the court proceedings in Lithuania had been examined. The President of the Supreme Court considered that the criterion determining when an appeal on points of law was not possible (namely the child’s return under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003) did not automatically preclude an appeal on points of law in respect of the reopening of proceedings. Moreover, in his view, Article 372 of the Code of Civil Procedure allowed the suspension of execution of a court’s decision at any stage of the court proceedings (that is to say, also at the stage of an appeal on points of law) (see paragraph 136 below).",
"The President of the Supreme Court noted that the subject matter of the Prosecutor General’s appeal on points of law in that case was not the return of the child, but the question of reopening the court proceedings (“ kasacinio nagrinėjimo dalykas šioje byloje yra proceso atnaujinimo klausimai, o ne vaiko grąžinimo klausimas – prašoma priimti procesinį sprendimą būtent dėl proceso atnaujinimo ir sustabdyti sprendimo vykdymą ryšium su galimu proceso atnaujinimu konkrečioje byloje ”). The President of the Supreme Court also held that in the instant case relating to the reopening of the civil case concerning the child’s return, it was necessary to suspend execution of the Court of Appeal’s decision because “the child is a minor, she does not speak German, she is attached to her mother and her brother, and she has spent the majority of her life in Lithuania”. The President of the Supreme Court considered that, if the child were to return to Germany before the question of reopening was decided, it would cause her great psychological harm.",
"74. On 26 October 2007 the first applicant attempted to appeal against the Supreme Court President’s ruling. He pleaded, in writing, that when suspending execution of the 15 March 2007 Court of Appeal decision, the President had acted outside the law and had exceeded the powers assigned to him under the Code of Civil Procedure. The first applicant also argued that by suspending execution of the Court of Appeal ruling on the second applicant’s return, the child would be prevented from seeing her father. Given the second applicant’s young age, that would be detrimental to their connection with each other and would place the child in an intolerable situation.",
"The first applicant also pointed out that the President of the Supreme Court had exceeded the boundaries of the Prosecutor General’s request, because when suspending the execution of the return decision the President had relied on circumstances such as the second applicant’s attachment to her mother and brother, the fact that she was at a young age, and that for most of her life she had lived in Lithuania, which had not been relied on by the Prosecutor General in his request. Moreover, no proof supporting psychological harm to the second applicant had been provided to the President of the Supreme Court. Lastly, the first applicant relied on Article 8 of the Convention and the Court’s case-law on the issue (he referred to Sylvester v. Austria, nos. 36812/97 and 40104/98, § 60, 24 April 2003; Maire v. Portugal, no. 48206/99, § 74, ECHR 2003 ‑ VII; and Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006), pointing out that, under the Hague Convention, undue delay in returning a child to the State in which he or she was habitually resident was in breach of Article 8 of the Convention. He also pointed out that under Regulation (EC) No. 2201/2003 the authorities had six weeks to decide the issue of return, but this had not been the case in his situation.",
"75. On 30 October 2007 the President replied that the ruling adopted by him was “final and not amenable to appeal”. The first applicant then made a further attempt to appeal against the Supreme Court President’s ruling. He argued that the President had acted outside the law and in breach of the rules of the Code of Civil Procedure, the Law on the Implementation of EC Regulation No. 2201/2003, the Hague Convention, and Regulation (EC) No. 2201/2003 itself. By a ruling of 29 November 2007 the Supreme Court’s Chamber dismissed the appeal, noting that it did not have the competence to review a ruling by the President.",
"76. By a ruling of 7 January 2008 the Supreme Court held that both the Klaipėda Regional Court and the Court of Appeal had erred in applying civil procedure rules concerning the reopening of proceedings (see paragraphs 66 and 68 above). The Supreme Court remitted to the Klaipėda Regional Court the case concerning the reopening of the civil proceedings concerning the girl’s return.",
"77. On 21 March 2008 the Klaipėda Regional Court again rejected as unfounded the request for reopening of proceedings, and the Court of Appeal did likewise on 30 April 2008. On the basis of information received from Germany – a letter from the Prosecutor General of the German Supreme Court of 20 November 2006 and the German courts’ decisions regarding the second applicant’s custody and return – the Court of Appeal considered that measures had been taken in Germany to protect the second applicant’s interests upon her return. That being the case, a Lithuanian court could not refuse to return the child on the basis of Article 13 (b) of the Hague Convention, because to do otherwise would be in contradiction to Article 11 § 4 of Regulation (EC) No. 2201/2003. The Court of Appeal also relied on the findings of the Brandenburg Regional Court of 20 February 2008 (see paragraph 92 below) to the effect that any psychological problems which the second applicant might face because of her separation from the mother upon her return to Germany were less harmful than being taken care of by a mother “whose manner of raising [the second applicant] had obvious flaws ( ženklūs auklėjimo trūkumai )”.",
"78. In the meantime, between 5 February and 20 March 2008, at the first applicant’s request, the bailiff reopened the execution file since after the Supreme Court’s ruling of 7 January 2008 (see paragraph 76 above), the Supreme Court’s President’s decision to suspend the execution of transfer (see paragraph 73 above) had become invalid. The bailiff ordered I.R. to provide information about the second applicant’s whereabouts and to present herself at the Klaipėda child care authority to discuss the details of the girl’s transfer. As noted by the bailiff, I.R. did not cooperate.",
"Instead, on 20 February 2008 she asked the Supreme Court to suspend execution of the 15 March 2007 Court of Appeal decision for the child’s return. This request for suspension was submitted to the Supreme Court by I.R. when she challenged the Klaipėda Regional Court’s decision of 4 December 2007 (see paragraph 32 above) to uphold the bailiff’s actions of September 2007 to continue with the execution of the court decision for the girls’ return.",
"79. On 15 March 2008 the Supreme Court again decided to suspend the execution proceedings until there had been a ruling on I.R.’s appeal on points of law concerning the Klaipėda Regional Court’s decision of 4 December 2007 upholding the bailiff’s actions.",
"E. The first applicant’s complaints to the European Commission, the European Commission’s inquiry and the response by the Ministry of Justice",
"80. On 13 October 2007 the first applicant wrote to F.F., who at that time was the European Commissioner for Justice, Freedom and Security and the Vice President of the European Commission. The first applicant stated that he had been prevented from seeing his daughter since 14 December 2006, despite the fact that he had been awarded temporary sole custody by the German courts, and likewise notwithstanding the Lithuanian Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above). He highlighted that I.R. had been hiding his daughter from him, that the bailiff had been threatened with murder, and that the first applicant had been publicly called names such as “German pig”, “Nazi” and “fascist” (see paragraph 53 above). This behaviour had been widely supported and encouraged by Lithuanian politicians, including members of the Seimas and the Chairman of its Committee on Human Rights, by the prosecutor in Klaipėda and the Minister of Justice, as well as by the mass media and the child care authorities. The applicant referred to certain of the facts as described above in this judgment in particular.",
"81. On 30 June 2008 the Lithuanian Government received an inquiry from the European Commission in connection with the Rinau case regarding the fact that, even though more than fourteen months had elapsed since the Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above), the second applicant had still not been returned to Germany. The European Commission pointed out that the first applicant had attempted to ensure that the aforementioned court ruling was executed, but that all his efforts had been in vain. The Commission stated that it was seeking to evaluate whether the actions of the Lithuanian State institutions had been in accordance with European Union law, including Regulation (EC) No. 2201/2003.",
"The Lithuanian authorities were therefore asked to explain the reasons for the non-return of the second applicant. The European Commission also wished to know what was the length of time that it usually took in Lithuania to execute court decisions for a child’s return from one parent to another who had exclusive custody rights. The European Commission also asked to be provided with information about the special circumstances of the applicants’ case, if there were any. Lastly, the European Commission pointed to the fact that the Supreme Court had suspended execution of the 15 March 2007 Court of Appeal ruling on the grounds that questions of European Union law had been referred to the ECJ for interpretation (see paragraph 94 below). The European Commission asked the Lithuanian authorities to provide an explanation as to the basis (“ kuo remdamasis ”) on which the Supreme Court had taken such a decision to suspend the Court of Appeal ruling.",
"82. In July 2008 the news agency Baltic News Service quoted the Lithuanian Ambassador to the European Commission as saying that “the European Commission was interested in the Lithuanian institutions’ attitude towards the Rinau case”. For their part, the Lithuanian officials believed that there was no danger that the European Commission would start infringement proceedings, which could lead to Lithuania being obliged to pay a fine. They noted that the proceedings before the European Court of Justice were already pending at that time (see paragraphs 98-103 below).",
"83. On 18 July 2008 the Ministry of Justice sent its reply to the European Commission. The Ministry firstly noted that, under Articles 109 and 114 of the Constitution, in Lithuania justice was administered solely by the courts and that “the Ministry had not taken part in the processes concerning the [second applicant’s] return to Germany”. Responding to the Commission’s question why fourteen months after the Lithuanian Court of Appeal ruling (see paragraph 19 above) the first applicant’s child had still not been returned to Germany, the Ministry recounted the chronology of the respective court proceedings that had taken place in Lithuania. The Ministry pointed out that, in order to guarantee the swiftest possible proceedings so as to hear the cases for a child’s return quickly, and also to protect the interests of a child so that one who had been taken away or had not been returned would be returned as quickly as possible, the Law on the Implementation of EC Regulation No. 2201/2003 (see paragraph 134 below) did not allow appeals on points of law ( neleidžia kasacijos ) in child return cases. However, if there was a reopening of civil proceedings ( taikant proceso atnaujinimo institutą ), under the Code of Civil Procedure both appeals and appeals on points of law were possible ( galima ir apeliacija, ir kasacija ).",
"84. The Ministry of Justice considered that, in theory, the reopening of civil proceedings was an exceptional way to monitor the lawfulness and reasonableness of court decisions which were already in force. Reopening of proceedings provided an opportunity to rectify mistakes of law in court decisions that were already final, thus protecting not only private but also public interests. The grounds for reopening civil proceedings were laid down in Article 366 of the Code of Civil Procedure – namely circumstances that could not have been verified when the case was examined (for example, circumstances that came to light later). The Ministry of Justice suggested that this was the reason (“ tai lemia ”) why court proceedings in Lithuania were still on-going after the 15 March 2007 Court of Appeal ruling which had ordered the child’s return to Germany.",
"85. As to the Commission’s question about the time usually taken to execute a court decision by which one of the parents is obliged to return the child to another parent who has sole custody rights, the Ministry of Justice wrote that the information of this kind was not entered into record ( tokie duomenys nėra renkami ) and that the time depended upon the factual circumstances of each particular case.",
"86. Lastly, the Ministry of Justice wrote that on 26 May 2008 the Supreme Court had suspended execution of the Court of Appeal ruling of 15 March 2007 on the basis of Article 363 of the CCP (see paragraph 136 below). The Ministry pointed out that the letter of the aforementioned provision of the Code of the Civil Procedure allowed execution of a court decision or a ruling which had been subject to cassation appeal to be suspended. However, relying on the Commentary to the CCP ( Lietuvos Respublikos civilinio proceso kodekso komentaras. II dalis. Vilnius: Justitia, 2005, p. 450 ), the Ministry also stated that in exceptional cases it was possible to suspend execution of a court decision which was not the subject of cassation proceedings. It was within the Supreme Court’s discretion to evaluate the factual circumstances of the case and their possible impact on human rights or lawful interests and to suspend execution of a particular court decision or ruling.",
"F. Proceedings in Lithuania for recognition of the second applicant’s Lithuanian citizenship",
"87. In May 2008 I.R. asked the Migration Department in Vilnius to recognise ( pripažinti ) the second applicant’s Lithuanian citizenship. The Migration Department replied, however, that pursuant to Article 23 § 1 of the Law on Citizenship (see paragraph 132 below), I.R. should have provided documents showing that both parents had agreed in writing to the child taking up the Lithuanian citizenship, as well as a document confirming that she had renounced any other (namely German) citizenship.",
"88. On 24 July 2008, that is to say, two days after the amendments to the Law on Citizenship had come into force (also see paragraphs 91 and 133 below), I.R. asked the Lithuanian authorities to recognise her daughter’s Lithuanian citizenship. The migration authorities in Klaipėda granted I.R.’s request on 11 August 2008, and issued the second applicant with a Lithuanian passport. The authorities cited Article 9 § 1 and Article 22 of the Law on Citizenship as in force at that time as the legal basis for such a decision (see paragraphs 132 and 133 below).",
"89. The first applicant appealed, arguing that the Lithuanian passport had been issued in breach of the law. He alleged I.R. should not have submitted such a request because on 20 June 2007 the Oranienburg court had ruled that questions of the second applicant’s citizenship were to be decided by the first applicant (see paragraph 92 below). He conceded that his daughter had the right to Lithuanian citizenship, but that right should have been properly exercised.",
"90. By a decision of 6 January 2009 the Migration Department rejected the first applicant’s request to rescind his daughter’s Lithuanian citizenship. It noted that the Government Commission for Questions of Citizenship had examined the first applicant’s complaint and the girl’s situation and on 11 December 2008 had ruled that the second applicant had been lawfully recognised as a Lithuanian citizen on the basis of Article 9 § 1 of the Law on Citizenship, which stated that a child with parents of different citizenships, but one of whom was a Lithuanian citizen, could be a Lithuanian citizen irrespective of where he or she was born (see paragraph 133 below). Citizenship had been recognised on the basis of a request by I.R., who, according to the Migration Department, was her daughter’s lawful legal representative because the Lithuanian migration authorities had no knowledge that I.R. had been recognised as not having legal capacity ( pripažinta neveiksnia ), as noted in Article 3.157 of the Civil Code (see paragraph 142 below). The Migration Department also stated that an appeal against its decision could be lodged before the Commission for Administrative Disputes or an administrative court.",
"It appears that after the second applicant’s return to Germany (see paragraph 112 below) the first applicant did not pursue these proceedings any further.",
"91. According to a press release issued by the Chairman of the Seimas Committee on Human Rights, A.L., “the doubts as to whether [the second applicant] has been recognised as a Lithuanian citizen ‒ and whose mother I.R. is using all possible means ( visomis priemonėmis siekia ) to ensure that the girl remains in Lithuania ‒ are speculative and not well-founded”. A.L., who presided over the working group which prepared the amendments to Article 9 § 1 of the Law on Citizenship, “considered that [the amendments] which came into force in July 2008 created the possibility ( suteikė galimybę ) for [the second applicant] to be not only a citizen of Germany but also a Lithuanian citizen.” According to the press release, A.L. was “confident that attempts to question the lawfulness of [the second applicant’s] [Lithuanian] citizenship represented merely the wish of malefactors ( piktavaliai ) to harm the little girl, who spoke only Lithuanian, because in Germany she would be forced to communicate with people who did not know her language. This was against the interests of the child and was also in breach of the Hague Convention, which declares that the child’s interest must prevail when taking decisions relating to him or her”.",
"G. The first applicant’s and I.R.’s divorce in Germany, the German courts’ decisions regarding the second applicant’s custody",
"92. By a judgment of 20 June 2007 the Oranienburg District Court granted a divorce to the first applicant and his spouse. It awarded permanent custody of their daughter to her father. The court also ordered that questions regarding the second applicant’s citizenship should be decided by the first applicant. The German court examined the Klaipėda Regional Court’s decision of 22 December 2006 refusing the return of the child (see paragraph 17 above), but ordered I.R. to return the child to Germany and to leave her in the custody of her father. I.R. was not present at that court hearing, but was represented and made submissions. On the same day, the Oranienburg District Court annexed to its decision a certificate issued pursuant to Article 42 § 1 of Regulation (EC) No. 2201/2003 (see paragraph 150 below).",
"On 20 February 2008, the Brandenburg Regional Court dismissed an appeal lodged by I.R. and held that she was bound to return the child to Germany. I.R. was present at the hearing and made submissions.",
"It appears from the German court’s judgments in the case file that I.R. was represented and able to submit observations, even though not physically present, in the proceedings giving rise to the Oranienburg court’s judgments of 14 August 2006 and 20 June 2007. That information was confirmed at the hearing before the Court of Justice, when she was again present (see paragraph 101 below).",
"On 14 May 2008 the Oranienburg District Court issued the certificate ordering the second applicant’s return to the first applicant, on the basis of that court’s decision of 20 June 2007 and pursuant to Articles 28 and 42 of Regulation (EC) No. 2201/2003.",
"93. Meanwhile, I.R. asked the Lithuanian Court of Appeal not to recognise the Oranienburg District Court’s decision of 20 June 2007 regarding the child’s custody and return and to apply temporary protective measures, namely to suspend execution of its earlier decision of 15 March 2007 for the second applicant’s transfer to Germany (see paragraphs 19-21 above).",
"On 14 September 2007 the Court of Appeal refused to accept I.R.’s request for examination. It pointed out that, pursuant to its earlier decision of 15 March 2007, I.R. had been obliged to return the child to Germany on the basis of Article 13 of the Hague Convention. The Court of Appeal also noted that the certificate issued by the Oranienburg District Court pursuant to Article 42 of Regulation (EC) No. 2201/2003 stated that all the conditions necessary for the issue of such a certificate, as set out in Article 42(2), had been satisfied. The Court of Appeal noted that the German court’s judgment, in so far as it ordered the return of the child to Germany, ought to have been directly enforced pursuant to the provisions of [Article 42 of] Regulation (EC) No. 2201/2003, without the need for special exequatur proceedings for the recognition and enforcement of judicial decisions (see paragraph 150 below). Lastly, in the light of the foregoing, the Court of Appeal also rejected I.R.’s request for the application of temporary protective measures.",
"H. Suspension of the court proceedings concerning the second applicant’s return in Lithuania and the referral to the European Court of Justice for a preliminary ruling",
"94. In response to an appeal by I.R. against the Court of Appeal decision of 14 September 2007 (see paragraph 93 above), on 30 April 2008 the Supreme Court decided to suspend civil proceedings and to put to the ECJ six questions regarding the interpretation of Regulation (EC) No. 2201/2003, including that of Article 42 thereof.",
"The questions were:",
"“(1) ‘Can an interested party within the meaning of Article 21 of Council Regulation (EC) No 2201/2003 apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision?’",
"(2) ‘If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision brought by a person against whom that decision is to be enforced, to apply Article 31(1) of Regulation No 2201/2003, which states that ‘... Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application’?’",
"(3) ‘Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring that that holder return to the State of origin the child staying with that holder, and in respect of which the certificate provided for in Article 42 of Regulation No 2201/2003 has been issued, required to examine that application on the basis of the provisions contained in Sections 1 and 2 of Chapter III of Regulation No 2201/2003, as provided for in Article 40(2) of that regulation?’",
"(4) ‘What meaning is to be attached to the condition laid down in Article 21(3) of Regulation No 2201/2003 (‘Without prejudice to Section 4 of this Chapter’)?’",
"(5) ‘Do the adoption of a decision that the child be returned and the issue of a certificate under Article 42 of Regulation No 2201/2003 in the court of the Member State of origin, after a court of the Member State in which the child is being unlawfully kept has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under Regulation No 2201/2003?’",
"(6) ‘Does the prohibition in Article 24 of Regulation No 2201/2003 of review of the jurisdiction of the court of the Member State of origin mean that, if it has received an application for recognition or non-recognition of a decision of a foreign court and is unable to establish the jurisdiction of the court of the Member State of origin and unable to identify any other grounds set out in Article 23 of Regulation No 2201/2003 as a basis for non-recognition of decisions, the national court is obliged to recognise the decision of the court of the Member State of origin ordering the child’s return in the case where the court of the Member State of origin failed to observe the procedures laid down in the regulation when deciding on the issue of the child’s return?’”",
"Pending the ECJ’s examination of the questions referred to it, in a ruling of 26 May 2008 the Supreme Court also suspended execution of the Court of Appeal decision of 15 March 2007 requiring the return of the girl to Germany.",
"95. On 21 May 2008 the Supreme Court also requested that the referral to the ECJ for a preliminary ruling be dealt with under the urgent procedure provided for in Article 104b of the ECJ Rules of Procedure. To substantiate this request the Supreme Court this time referred to the necessity to act urgently on the grounds that any delay would have a very unfavourable impact on the relationship between the child and the parent with whom she was not living.",
"96. In June 2008 the Lithuanian press quoted I.R. as saying that the European Court of Justice was her last hope in having the case regarding the second applicant’s custody decided by the Lithuanian courts. She stated that she did not dare to think about how she would manage to execute the German courts’ decisions should the European Court of Justice findings be unfavourable to her.",
"97. On 22 October 2008 the Lithuanian Government passed resolution no. 1062 “On the allocation of means ( Dėl lėšų skyrimo )”, by which it allocated a sum of LTL 5,300 (approximately EUR 1,530) “to the citizen of the Republic of Lithuania I.R. so that she could cover the fees of the lawyer G.K. who had represented her on 26 and 27 June 2008 at the European Court of Justice” (also see paragraph 101 below).",
"I. The response from the European Court of Justice",
"1. The View of Advocate General",
"98. On 1 July 2008 the Advocate General (AG) observed in her View that since one factor characteristic of the situations under consideration consisted in the fact that the abductor claimed that his or her actions had been rendered lawful by the competent authorities of the State of refuge [in this case – Lithuania], one effective way of deterring him or her would be to deprive his or her actions of any practical or juridical consequences. In order to bring this about, the Hague Convention placed at the head of its objectives the restoration of the status quo, by means of “the prompt return of children wrongfully removed to or retained in any Contracting State” (paragraph 15 of the View). A principle which underpinned Regulation (EC) No. 2201/2003 as a whole was that of cooperation and mutual confidence between the courts and authorities of the Member States, which implied that decisions of the courts of the Member State of the child’s habitual residence should in principle be recognised and enforced automatically (paragraph 18 of the View). The Advocate General also noted that “the fundamental significance of this principle was brought into focus at the hearing when counsel for [I.R.] suggested that the Lithuanian courts might consider that the objectivity of the German courts was not guaranteed in a dispute between a German father and a Lithuanian mother”. For the Advocate General, “it was clear that to allow recognition to be refused on the basis of such doubts (whether they were or were not in fact felt by the Lithuanian courts) would negate the whole system which the Regulation seeks to establish” (paragraph 19 of the View).",
"99. Whilst reiterating that the superior interests of the child must be paramount in all circumstances, the Advocate General observed the following:",
"“22. However, I should like to qualify that statement in the context of the child’s return to the Member State of habitual residence. It is clear that the Convention and the Regulation are based on the principle that, in the event of a child’s wrongful removal or retention, his or her superior interests do indeed always require that return, except only in certain clearly-defined situations set out in Articles 13 and 20 of the Convention (read, in so far as Article 13(b) is concerned, in conjunction with Article 11(4) of the Regulation). That, it seems to me, is perfectly coherent, and even necessary. A child can have no interest in being dragged from one Member State to another by a parent in quest of the court which he or she supposes will be the most sympathetic to his or her cause. I would add that a return to the Member State of habitual residence does not necessarily imply the child’s return to the home of the parent left behind, or separation from the abducting parent. Those are separate questions, to be decided by the competent court, which must take account of all the emotional, psychological and material aspects of the situation and which must, in deciding, accord paramount importance to the child’s superior interests.”",
"100. As to the applicants’ case, the Advocate General considered that “one cannot but observe that, in the present case, the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return is far from having been achieved” (paragraph 24 of the View). It was neither denied nor deniable that the German courts had jurisdiction to hear the divorce proceedings under Article 3(1)(a) of Regulation (EC) No. 2201/2003, as all the residence requirements listed there had been fulfilled at the time when the proceedings were initiated. Next, it appeared to be common ground that the child had indeed been wrongfully retained for the purposes of the Hague Convention (Article 3) and Regulation (EC) No 2201/2003 (Article 2(11)). At the time when the mother had announced her intention not to return to Germany with the child, custody rights had actually been exercised by both parents jointly, by virtue of German law, and the father had consented only to a two-week trip to Lithuania (paragraphs 27 and 28 of the View). In the Advocate General’s view, once seised, the Lithuanian court had in principle been required to order the child’s return. It should also have issued its judgment no later than six weeks after the application was lodged. The only grounds on which it could have refused to order the child’s return were those set out in Article 13 of the Hague Convention (paragraph 33 of the View). The Advocate General thus stated:",
"“39. However, as a result of the mother’s application for the proceedings to be reopened and the procedural vagaries that have followed upon it, the decision was not enforced, nor has it been enforced to this day. On the contrary, enforcement of the Court of Appeal’s decision has been suspended on several occasions, even by the Supreme Court itself – despite the fact that the same Supreme Court held, in its judgment allowing the reopening, that such suspension was not possible.",
"40. Even if enforcement of a judgment of a court of a Member State within its own territory is a matter for domestic law, it can only be concluded, at this point, that the outcome of these successive suspensions – the fact that, nearly two years after she was first supposed to return and more than 15 months after the decision ordering her return was issued, the child has still not been brought back to Germany – is totally incompatible with the fundamental aims of the Convention and the Regulation.”",
"2. The preliminary ruling",
"101. The European Court of Justice held hearings on 26 and 27 June 2008. I.R. was represented by two lawyers, G.B. (see paragraph 59 above) and G.K., who submitted observations on her behalf. The lawyer G.K. told the Lithuanian press that “it is obvious that the German court’s certificate for the return of the child was invalid ... However, only [the European Court of Justice] may decide whether law can be born out of unlawfulness”.",
"The Lithuanian Government were represented by two lawyers from the European Law Department under the Ministry of Justice.",
"The first applicant also had a lawyer – the one who had represented him in the court proceedings in Lithuania.",
"102. On 11 July 2008 the European Court of Justice delivered its preliminary ruling (ECLI:EU:C:2008:406) on interpretation of the Regulation, having examined the referral for a preliminary ruling under an urgent procedure pursuant to Article 104b of its Rules of Procedure. The ECJ noted that the Regulation complements the provisions of the 1980 Hague Convention, which nevertheless remains applicable (paragraph 53 of the ECJ’s judgment). It then held, inter alia, that procedural steps which had been taken in the Member State of enforcement after a non-return decision had been given were not decisive and could be regarded as irrelevant for the purposes of implementing the Community regulation in question (paragraph 80 of the ECJ’s judgment). If the position were otherwise, there would be a risk that the Regulation would be deprived of its useful effect, since the objective of the child’s immediate return would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child was being wrongfully retained had been exhausted. That risk should be particularly balanced because, where young children were concerned, biological time could not be measured according to general criteria, given the intellectual and psychological structure of such children and the speed with which that structure develops (paragraph 81 of the ECJ’s judgment). Since no doubt had been expressed as regards the authenticity of the certificate issued by the German court and since it had been drawn up in accordance with the provisions of the Regulation, opposition to the recognition of the decision ordering return was not permitted and it was for the Lithuanian court merely to declare the enforceability of the certified decision and to allow the immediate return of the child (paragraphs 89 and 109 of the ECJ’s judgment).",
"103. The European Court of Justice also held:",
"“87. First, the sequence of the decisions taken by the Lithuanian courts, as regards both the application for return and that for non‑recognition of the decision certified pursuant to Article 42 of the Regulation, does not appear to have observed the autonomy of the procedure provided for in that provision. Second, the number of decisions and their diverse nature (to set aside, overturn, reopen, suspend) are evidence that, even if the most expeditious domestic procedures may have been adopted, the periods of time elapsed were already, on the date on which the certificate was issued, in manifest contradiction to the requirements of the Regulation.”",
"J. The Supreme Court’s reaction to the ECJ’s preliminary ruling",
"104. In a ruling of 9 July 2008, that is to say, after the ECJ had delivered its preliminary ruling, the Supreme Court asked the State Child Rights and Adoption Service for a fresh conclusion regarding the possibility of returning the second applicant to Germany. The Supreme Court reasoned that such a conclusion had to be produced under Article 2 § 3 of the Law on EU Regulation implementation (see paragraph 134 below) and that it was necessary given that “a certain time had passed since the case had been examined”.",
"105. On 24 July 2008 the first applicant wrote to the Supreme Court that under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, an appeal on points of law was not possible in cases concerning a child’s return. The first applicant also underlined that the conclusion which the Supreme Court had ordered the State Child Rights and Adoption Service to produce was related to the factual circumstances of the case and their evaluation. The first applicant pointed out that, under Article 353 §1 of the Code of Civil Procedure, the Supreme Court was bound by the facts as they had been established by the first-instance and appellate courts (see paragraph 136 below). Accordingly, it was not the Supreme Court’s function to examine the factual circumstances of the case even if they were mentioned in an appeal on points of law or a response to it. Above all, it was not the Supreme Court’s function to gather evidence ex proprio motu. To interpret the Code of Civil Procedure in any other way would negate the entire purpose and meaning of proceedings on points of law, the main aim of which was to ensure the uniform interpretation and application of law, as set out in Article 346 § 2 of the Code of Civil Procedure (see paragraph 136 below). The first applicant also emphasised that none of the parties to the civil proceedings (namely himself, the Prosecutor General, and I.R.) had asked the Supreme Court to order such a fresh conclusion by the State Child Rights and Adoption Service. Lastly, he pointed out that the proceedings regarding the merits of the request to return the girl to Germany had already been terminated by the final and enforceable Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above). In those proceedings such a conclusion had already been produced on 22 November 2006 (see paragraph 15 above). These proceedings, however, had been initiated to look into the legal question of the possibility of a reopening (see paragraph 73 above).",
"106. By final ruling no. 3K-3-403/2008 of 25 August 2008, the Supreme Court rejected the Prosecutor General’s and I.R.’s requests for a reopening of the civil proceedings for the second applicant’s return, leaving the Court of Appeal’s decision of 30 April 2008 unchanged (see paragraph 77 above). The State Child Rights and Adoption Service was party concerned in those proceedings. Relying on the ECJ’s preliminary ruling, the Supreme Court pointed out that once a court of the child’s country of origin had taken a decision for that child’s return and issued a certificate as set out in Article 42 of Regulation (EC) No. 2201/2003, a court in the State in which execution of that decision had been requested could only pronounce ( tik paskelbti ) that other court’s decision and grant the request to return the child without delay. In the light of the ECJ’s preliminary ruling, the Supreme Court also held that the Lithuanian courts did not have jurisdiction to review the German courts’ decisions on the basis of which a certificate for the child’s return had been issued. Moreover, as explained by the ECJ, once a certificate under Article 42 of Regulation (EC) No. 2201/2003 had been issued in the child’s state of origin [Germany], [any] court decisions taken in the State where the child was residing [Lithuania], would have no effect on its validity or its enforcement. The Supreme Court thus concluded that “any measure aimed at the reopening or further continuation of the court proceedings was prohibited ( tai užkerta kelią proceso atnaujinimui ar jo tolimesniam vyksmui )”.",
"107. Although I.R. had relied on a report ( raštas ) of 31 October 2007 from the Ministry of Social Security and Labour stating that the State Child Rights and Adoption Service had not executed its duties properly when providing a conclusion in the instant case and that the director of that Service had been issued with a disciplinary sanction in that regard, the Supreme Court considered that this had not been of any relevance as regards the lawfulness of the decision of 15 March 2007 by the Court of Appeal concerning the second applicant’s return. In that context the Supreme Court also pointed out that in their request to reopen the civil proceedings in the case which had been terminated by the 15 March 2007 Court of Appeal ruling, I.R. and the Prosecutor General had relied on Article 366 § 1 (2 and 9) of the Code of Civil Procedure, that is, that new circumstances had come to light which could not have been known when the case was heard initially and that there had been a clear error when applying the law. Regarding the first ground, the Supreme Court held that the fact that the child would be in unfamiliar linguistic environment if she were to be returned to Germany did not correspond to any of the cases mentioned in Article 13 (b) of the Hague Convention. Because of her young age she would have the capacity to learn another language, and mere immersion in another linguistic environment could not be seen as causing the child physical or mental harm within the meaning of Article 13 (b) of the Hague Convention. As to I.R.’s argument that her son’s health would deteriorate upon the second applicant’s return to Germany, that contention was not related to any potential harm to the child who was to be returned – the second applicant. Moreover, the circumstances regarding I.R.’s son’s ailment had been known from the very beginning of the court proceedings for the second applicant’s return. That circumstance could therefore not be considered as new. Lastly, the Supreme Court pointed out that the rule that siblings should not be separated applied in relation to their adoption [which was not the situation in the case at hand] (Article 3.209 § 6 of the Civil Code).",
"108. The Supreme Court then turned to the Prosecutor General’s submission that when sanctioning the child’s return, the Court of Appeal had committed a clear mistake of law in interpreting Article 13 (b) of the Hague Convention and Article 3 of the Convention on the Rights of the Child, and that this would, in turn, constitute a basis for reopening the civil court proceedings under Article 366 § 1 (9) of the CCP. The Supreme Court however pointed out that the Klaipėda Regional Court and the Court of Appeal − both during the proceedings for the second applicant’s return (see paragraphs 17 and 19-21 above), and when adopting decisions refusing the reopening of court proceedings in the already terminated case (see paragraphs 66, 68 and 77 above) − had not established any exceptions which would permit the non-return of the child on the basis of those two international Conventions. For the Supreme Court, this showed that both the Klaipėda Regional Court and the Court of Appeal had acted within their competence. It followed that no clear mistake of law had been committed.",
"109. On the same day, 25 August 2008, the Supreme Court adopted another ruling, no. 3K-3-126/2008, dismissing I.R.’s appeal on points of law against the Court of Appeal decision of 14 September 2007 by which that court had rejected I.R.’s request for the application of temporary protective measures (see paragraph 93 above). The Supreme Court also relied on the ECJ’s preliminary ruling.",
"110. Also on the same day, 25 August 2008, I.R. gave an interview to an Internet news portal 15min.lt. The article reported that, after two years of dramatic activity surrounding I.R.’s family, which had been marked by a marathon of court hearings and demonstrations of support ( paramos piketai ), and had attracted attention not only in Lithuania but all over Europe, the Supreme Court had adopted two rulings which were unfavourable to I.R. She stated regarding those decisions: “Clearly, these are unjust decisions, in particular the one refusing to reopen court proceedings. One must conclude that our State does not protect its citizens. As if it is kow-towing ( nuolaidžiaujama ) to a stronger country. This is inhuman, but I cannot lay down my weapons. The execution proceedings remain. I will use all legal avenues to allow my daughter to stay with me and her brother.” I.R. also expressed her happiness that during the two years that she had been fighting for her child she had been supported by her family, and also by Lithuanian society and the State institutions: “My family has been behind me from the very first unfavourable German court decisions. Afterwards Lithuanian institutions joined in. As the saying goes – there cannot be an army of one in the field. The system would have crushed me. I received immense support ( be galo palaikė ) from Lithuanian society, non-governmental organisations, the child care service [ Vaiko teisių tarnyba ], the Seimas, the Government, and the Prosecutor General. Without such support I would have been eaten alive by now.”",
"111. In reply to an inquiry from the first applicant’s relatives, the President of the Republic later wrote, on 22 September 2008, that he was aware of the case, in which over the previous two years Lithuanian and German courts had adopted more than thirty decisions “which had often been contradictory and invalidated one another”. The President also referred to the ECJ’s preliminary ruling and to the Supreme Court’s subsequent ruling, pursuant to which I.R. had been obliged to return the second applicant to the first applicant. Lastly, the President referred to the principle of the separation of powers, under Article 109 of the Constitution, and stated that, in a democratic State, refusal to execute a court decision was a breach of the principle of the rule of law. The President expressed his confidence ( esame įsitikinę ) that the Lithuanian authorities would ensure that the court decision was executed.",
"K. The events of 20 October 2008 and criminal proceedings against the first applicant on charges of child abduction and wilful conduct",
"112. On 20 October 2008 the first applicant, I.R. and their daughter attended a meeting at the premises of the Klaipėda child care authority. The first applicant had earlier asked a Lithuanian bailiff for the meeting so that their daughter could be transferred into his custody on the basis of the writ of execution ( vykdomasis raštas ) issued by the Klaipėda Regional Court on 13 June 2007 (see paragraph 26 above). During the meeting ‒ before the bailiff reached the premises and whilst I.R. was in another room talking to a psychologist ‒ the first applicant took their daughter out of the building and drove her away ( išsivežė ).",
"113. The applicants travelled together to Riga, where they attempted to board a plane to Berlin. According to the Latvian authorities, on the night of 20 October 2008 the two applicants were arrested at Riga airport by the Latvian authorities (also see paragraph 115 below).",
"114. The following day the two applicants were released by the Latvian authorities, who had established that the first applicant had sole custody rights over the child, as confirmed by the court decision. On the same day, I.R. arrived at Riga airport, accompanied by Lithuanian police officers but returned to Lithuania without the child because the two applicants had boarded a plane to Berlin earlier that day. The Lithuanian press quoted the first applicant as blaming the Lithuanian authorities for their failure to act, and said that he would have had to wait ten years to be reunited with his daughter if he had not acted as he did, taking her away with him. The press also quoted the Ombudsman for Children’s Rights as suggesting that the first applicant’s actions in taking his daughter away with him raised doubts as to whether he could “be good for the child” ( gali būti geras vaikui ) and “properly guarantee the child’s safety” ( tinkamai užtikrinti vaiko saugumą ).",
"115. On 20 October 2008 a Lithuanian prosecutor opened criminal proceedings against the first applicant on charges of child abduction and wilful conduct ( savavaldžiavimas ) (Article 156 § 2 and Article 294 § 1 of the Criminal Code, see paragraph 143 below). The criminal charges were initiated by a complaint from the Klaipėda child care authority. I.R. was granted victim status in that criminal case.",
"116. That same day, in response to a request from the prosecutor, the Klaipėda City District Court ordered the first applicant’s detention on remand, holding that he might have violated the rights and interests of I.R. The Lithuanian prosecutors subsequently issued a European Arrest Warrant in respect of the first applicant but cancelled that warrant on 20 November 2008.",
"117. On 18 November 2008 the Klaipėda Regional Court quashed the order for the detention of the first applicant. The court noted that the German courts’ decisions of 14 August 2006 and 20 June 2007 (see paragraphs 12 and 92 above) had never been invalidated, and should therefore have been executed. The fact that the second applicant should have been transferred into the first applicant’s custody followed both from the ECJ’s preliminary ruling and from the Supreme Court’s rulings of 25 August 2008. There was no basis on which it could be held that the first applicant’s actions had breached the rights of I.R., who had in any case been deprived of her custody rights in respect of her daughter by court decisions that were still valid.",
"118. The Lithuanian prosecutors however pursued the criminal investigation against the first applicant. On 3 February 2009 he was officially informed that he was a suspect in a criminal case under Articles 156 § 2 and 294 § 2 of the Criminal Code, on the grounds that on 20 October 2008 he had seized the second applicant and driven her away. The prosecutor considered that by such actions the first applicant had caused serious damage to the second applicant’s interests.",
"119. Subsequently, the prosecutor questioned all the relevant persons in the case: the first applicant, I.R., the representatives of the child care authorities, the bailiff, and others who had taken part in the proceedings concerning the second applicant’s transfer to the first applicant and had witnessed the events of 20 October 2008. The prosecutors also obtained documents from Germany regarding the second applicant’s psychological state after she had been returned to the first applicant.",
"120. In particular, the director of the Klaipėda Pedagogical Psychological Service ( Klaipėdos pedagoginė psychologinė tarnyba ) testified as a witness that the first applicant’s lawyer had contacted that service between 15 and 20 September 2008, asking that a psychologist be involved when the child was transferred to the first applicant. The Service had agreed to be involved in the transfer proceedings. At the beginning of October 2008 the first applicant had called the Service asking for a consultation. When the director had met the first applicant, they had discussed how to communicate with the child so that the closest possible contact could be established with her so that she would be traumatised as little as possible. She had given him much advice. The first applicant had also complained to the Service that I.R. had not allowed him to communicate with his daughter.",
"The director also testified that the first applicant had asked her to attend a meeting at 2.15 p.m. on 20 October 2008 so that she could see how he communicated with the child and whether everything was in order. The director also testified that when she had arrived at that meeting she had tried to talk to I.R., but it had been obvious that I.R. did not wish to reach any compromise; she was ready only “to fight ( kovoti )” and “to go until the end ( eiti iki galo )”. No constructive solution could be reached, even though psychological assistance was offered to I.R. The director also stated that she had heard comments that I.R. was about “to harm herself and [the second applicant] ( pakenkti sau ir vaikui )”, and had therefore suggested to the child care authorities that they talk to I.R. about those intentions. The director stated that the bailiff had arrived at the child care authority premises at 2.15 p.m., as scheduled.",
"121. When questioned by the prosecutor as a suspect, the first applicant testified that he had arrived in Lithuania on 24 September 2008. Initially he had been able to see his daughter on a daily basis, but after ten days I.R. had forbidden him to see her, and for two weeks he had had no contact with his daughter. Afterwards, with the help of the child care authority and at its premises, the first applicant had succeeded in seeing his daughter for two hours a day for three days, but I.R. had always been present in the room during those meetings. He pointed out that he was the person who had sole custody rights over their daughter, but that he was unable to reach a friendly agreement with I.R., who submitted complaints against the bailiff. The first applicant also stated that he had taken seriously I.R.’s threat that she could do something to herself or the second applicant and that he therefore felt he had to act.",
"122. The first applicant also stated that he had liaised with the bailiff over how the second applicant’s transfer should take place on 20 October 2008. However, after seeing I.R., he had thought that things might escalate out of control. He had therefore decided to leave the child care authorities’ premises with his daughter when the opportunity arose, and without waiting for the bailiff. He had thus taken her to his car, where he had clothes for her. The applicant stated that his goal had been to leave Lithuania and to return to his home in Germany, which he reached on 21 October 2008. According to him, throughout that time the second applicant had felt all right ( sekėsi gerai ). Lastly, he stated that after their return to Germany I.R. had asked the German prosecutors and the child care authorities to arrest the first applicant and to return their daughter to her, but in April 2009 the Oranienburg first ‑ instance court had held that the first applicant had sole custody rights and that it would not be in the best interests of the second applicant if she were to return to her mother.",
"123. When questioned as a witness, I.R. testified that when the first applicant was seeing their daughter during the arranged meetings in autumn 2008, she had not told the girl that she would have to go to Germany to live with her father. She also admitted that she had not visited the psychologists so that she could prepare the child for life with her father. I.R. also stated that she had been shocked by the developments on 20 October 2008 when the first applicant had taken their daughter away. She had suffered a lot due to the fact that the girl had been torn away from her. I.R. acknowledged that the child had not been prepared for the transfer to her father. It would have been easier for her if she had known that the girl had been psychologically prepared.",
"124. The representative of the Klaipėda child care authority testified that she had taken part in the meeting of 20 October 2008. Both parents and the girl had been in one room. She had witnessed how the girl communicated with her father, noting that they “communicated nicely, chatted and somehow understood each other ( vaikas su tėvu gražiai bendravo, čiauskėjo, kažkaip suprato vienas kitą )”. At some point the representative of the child care authority asked I.R. to leave the room where the two applicants were and to come into her office, because the psychologist had arrived. She and the psychologist had then tried to find out from I.R. what she had in mind when she said that she would “go until the end”. I.R. replied that she wanted to do everything by lawful means, and that her lawyers were “preparing new papers” ( ruošia naujus raštus ). The representative and the psychologist understood that I.R. had some kind of unused means at her disposal. I.R. had talked very briefly and had been tense. The representative also noted that the psychologist had not observed the child during the meeting of 20 October 2008, because there had been no time for that. Everything had happened very fast. The representative considered that the action of taking away a child and putting her into a car, with the mother then running after her, was tantamount to kidnapping.",
"125. By a decision of 24 November 2009 the Klaipėda City District Prosecutor discontinued the criminal proceedings against the first applicant. The prosecutor firstly noted the Oranienburg District Court’s decisions of 14 August 2006 and 20 June 2007 granting the first applicant custody of the second applicant and ordering I.R. to return the girl, and secondly the Lithuanian Court of Appeal ruling of 15 March 2007 (see paragraph 19-21 above) ordering I.R. to return the second applicant to her father. It followed that the second applicant had been living at her mother’s home unlawfully. Lastly, the prosecutor also noted the Supreme Court’s ruling of 25 August 2008, rejecting the Prosecutor General’s and I.R.’s requests to reopen civil proceedings (see paragraphs 106 and 107 above).",
"The prosecutor also relied on the psychological expert report ( psichologinė ekspertizė ) of unspecified date which she had received from Germany, which she then recited in the decision:",
"“The sudden separation of the second applicant from her mother as well as the sudden change of her place of residence had led to a reaction of sadness ( liūdesio reakcija ), which was normal for her age as she had been separated from persons close to her. However, Luisa had survived the move and the changes well; she had also received assistance. Therefore there was no long-term or traumatic impact resulting from that separation. Luisa had also borne the changes in her move to her father well. Her acclimatisation had been further eased by her capacity to learn and the presence of persons whom she had known from childhood, especially her father and her nanny, as well as her regular contact with her mother. She had learned the German language quickly and fully. Although she had been stressed during her trip to Germany, an interpreter and her father, who had always been next to her, had helped her. There were no residual consequences of that stressful event. Luisa’s physical and mental state was very good. She was a self-confident, happy and smart girl with the capabilities, knowledge and interests which were characteristic for her age. There were no indications that she had any emotional or behavioural issues or other psychological problems. Luisa’s social development, including her behaviour when interacting with others, in all areas corresponded to that of other children of her age. Luisa had fully integrated into her living environment.”",
"126. The prosecutor also found that the first applicant’s actions of 20 October 2008 had not constituted a crime under Articles 156 § 2 or 294 § 2 of the Criminal Code. On the basis of the case file materials, including video recordings by journalists which showed how the first applicant had taken the girl from the premises of the Klaipėda child care authority and put her into the car, and also witness testimony, the prosecutor found that the first applicant had carried the girl in his arms. However, there was no proof that physical coercion had been used against her. In fact, given that the first applicant had custody rights over the girl, he in fact had the right to take her in his arms and carry her. The prosecutor pointed out that the first applicant had communicated with the child previously and had therefore not been a stranger or an unfamiliar person to her. When being carried out of the building in the first applicant’s arms, the girl had not cried or screamed or otherwise indicated that she was being taken by force. One of the witnesses testified that she had started screaming when she saw her mother running after her and the first applicant, but that had been a normal response to her mother’s reaction. The other witnesses testified, and the video recordings also showed, that the first applicant had calmed the child down after putting her in the car.",
"127. In setting out the reasons for discontinuing the criminal proceedings against the first applicant, the prosecutor also noted that, according to the bailiff, it had been planned to execute the court decision ordering the girl’s transfer on 20 October 2008 at 2.15 p.m. Moreover, it was apparent from both the bailiff’s and the first applicant’s testimonies, as well as from the execution file that from the outset the first applicant had sought to have the court decisions executed lawfully and peacefully. In order to avoid forcible execution of the court decision, he had made the offer to I.R. that he would voluntarily execute the court decision and alleviate all issues ensuing from that execution.",
"The first applicant had also offered, on his own initiative, to cover I.R.’s travel costs to Germany, and to provide her with a place to live and financial support; she had also been provided with a job offer in Germany. However, I.R. had not accepted the first applicant’s offer. Furthermore, the first applicant had also sought to communicate with the child, so that the connection between the father and child would be restored, but I.R. had put obstructions in the way. As confirmed by the child care employees, I.R. had disregarded the agreement that had been signed at the bailiff’s office on 25 September 2008 obliging her to allow the first applicant to communicate with his daughter for four hours per day.",
"According to the testimony of a psychologist from the Klaipėda Pedagogical Psychological Service, the first applicant had consulted her about how best to communicate with the child and how to establish closer contact with her, so that she would be traumatised as little as possible. Such actions on the part of the first applicant showed that he had sought goodwill and lawful execution of the court decision, so that as little harm as possible would be caused to the child. Moreover, the case file also showed that the first applicant had made preparations for the lawful transfer of the child, ensuring that everyone who had to take part in the transfer would be present at the child care authority premises, where the court decision should have been executed. All this showed that he did not have a premeditated intention to execute the court decision as he saw fit.",
"128. Lastly, turning to the behaviour of I.R., the prosecutor pointed out that during the proceedings concerning the execution of the court decision she had concealed her place of residence, which she shared with the child, and had also appealed against all the actions of the bailiff. According to I.R.’s own testimony, she had not been preparing the child for her return to Germany, nor had she visited psychologists so that the girl could be prepared for going to live with her father. The prosecutor also noted I.R.’s statement to journalists when asked what she planned to do when the time came for her daughter to go to Germany, namely “There are various ways. We will be together with Luisa. I will fight until the end”. For the prosecutor, this showed that I.R. had no intention of executing the court decision and returning the child to her lawful custodian. That being so, it had to be concluded that the first applicant had not caused major damage to I.R., who had no custody rights.",
"129. In the light of the above the prosecutor concluded that the first applicant had good reason to consider I.R.’s actions as unlawful. Even so, he had not undertaken any extreme or violent measures against her. In fact, it had been the actions of I.R. that had been obstructive and provocative, since she had prevented the first applicant from properly taking care of his child. The prosecutor also concluded that the first applicant’s actions on 20 October 2008 were to be considered as spontaneous, taken so as to avoid calamity and physical violence which would only have harmed the child’s interests or prevented the execution of the court decision. Even if the child had been taken away suddenly and might have been stressed during the journey, the psychological report ruled out any negative and lasting consequences of the action, and currently her situation was deemed very good. From that it followed that the first applicant had not caused harm to the second applicant either."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"130. As to the right to respect for family life, the Lithuanian Constitution reads:",
"Article 38",
"“The family shall be the basis of society and the State.",
"Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State.",
"...",
"In the family, the rights of spouses shall be equal...”",
"131. As regards Lithuanian citizenship, the Lithuanian Constitution reads:",
"Article 12",
"“Citizenship of the Republic of Lithuania shall be acquired by birth or on other grounds established by law.",
"With the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time.",
"The procedure for the acquisition and loss of citizenship shall be established by law.”",
"Article 13",
"“The State of Lithuania shall protect its citizens abroad.",
"It shall be prohibited to extradite a citizen of the Republic of Lithuania to another state unless an international treaty of the Republic of Lithuania establishes otherwise.”",
"132. The Law on Citizenship, at the material time (Article 9 until 22 July 2008; see paragraph 133 below), read:",
"Article 9. Citizenship of children of whom one of the parents is a Lithuanian citizen",
"“1. A child whose parents have different citizenships, but one of whom was a citizen of the Republic of Lithuania at the time of the child’s birth, will be a citizen of the Republic of Lithuania if he or she was born in the territory of the Republic of Lithuania ...”",
"Article 16. Granting citizenship by way of exception",
"“1. The President of the Republic may, in compliance with this Law, grant citizenship of the Republic of Lithuania by way of exception to citizens of other States or stateless persons of outstanding merit to the Republic of Lithuania who have integrated into Lithuanian society, without applying the [usual] conditions for granting citizenship of the Republic of Lithuania ... Under this Law, outstanding merit to the Republic of Lithuania shall include any action by a foreign citizen or a stateless person, which significantly contributes to the consolidation of the statehood of the Republic of Lithuania, as well as to the strengthening of its power and authority in the international community ...”",
"Article 22. The change of children’s citizenship upon the change of citizenship of both parents",
"“1. If both parents acquire citizenship of the Republic of Lithuania or they both lose it, the citizenship of their children under fourteen years of age changes accordingly ...”",
"Article 23. Recognition of citizenship to children of whom one of the parents has citizenship of the Republic of Lithuania",
"“1. If one parent has the citizenship of the Republic of Lithuania and the other parent remains a citizen of another country, their child may obtain the citizenship of the Republic of Lithuania if both parents so ask in writing. If the parents are divorced, the child may obtain the citizenship of the Republic of Lithuania on the basis of a written request of one of the parents who has obtained the citizenship of the Republic of Lithuania, and with whom the child has been left to live by a court decision or with whom the child habitually lives de facto ...”",
"133. On 15 July 2008 the Law on Citizenship was amended to provide (wording in force as of 22 July 2008):",
"Article 9. Citizenship of children of whom one parent is a citizen of the Republic of Lithuania",
"“1. A child whose parents have different citizenships, but of whom one was a citizen of the Republic of Lithuania at the time of the child’s birth, will be a citizen of the Republic of Lithuania irrespective of whether he or she was born within or outside the territory of the Republic of Lithuania ...”",
"134. The Law on the Implementation of EC Regulation No. 2201/2003 was passed by the Seimas on 21 April 2005 ( Įstatymas dėl 2003 m. lapkričio 27 d. Tarybos reglamento (EB) Nr. 2201/2003 dėl jurisdikcijos ir teismo sprendimų, susijusių su santuoka ir tėvų pareigomis, pripažinimo bei vykdymo, panaikinančio reglamentą (EB) Nr. 1347/2000, įgyvendinimo ). A request for return of a child who had been brought to Lithuania or held there unlawfully had to be examined within the time ‑ limits set out in Article 11 of Regulation (EC) No. 2201/2003 [that is, within six weeks] (Article 2 § 5 of the aforementioned Law). When examining such a request, a regional court with jurisdiction for the child’s last known place of residence was to act as the court of first instance (Article 2 § 2). An appeal ( atskirasis skundas ) could then be lodged with the Court of Appeal, whose decision whether or not the child should be returned was final. The Law explicitly stated that “in cases concerning a child’s return, an appeal on points of law is not possible” (Article 2 § 6). In matters concerning the return of a child, the Central Authority for the performance of the functions designated in the Regulation was the State Child Rights and Adoption Service under the Ministry of Social Security and Labour. Its function was to provide a conclusion ( išvada ) regarding the child’s return when such a dispute was heard by a court (Article 2 § 3). The Law also read that certificates issued in accordance with Articles 41 and 42 of the Regulation in a Member State were considered as valid enforcement orders (Article 3 § 1).",
"That Law was replaced by a new Law on the Implementation of the European Union and International Law Acts within Civil Proceedings ( Civilinį procesą reglamentuojančių Europos Sąjungos ir tarptautinės teisės aktų įgyvendinimo įstatymas ), passed by the Seimas on 13 November 2008. Article 7 §§ 5 and 6 of the new Law contained provisions identical to the provisions of Article 2 §§ 5 and 6 of the earlier Law.",
"Under the Law on the Constitutional Court, annulment of the legal act that has been challenged before the Constitutional Court is a ground to discontinue the proceedings before that court (Article 69).",
"135. According to the Law on Courts, as in force at the material time, the Supreme Court is the court which examines appeals on the points of law in cases, where decisions have become final (Article 23 § 1).",
"136. The Code of Civil Procedure at the material time read as follows:",
"Article 339. The coming into force of a ruling adopted by the appellate court ( Apeliacinės instancijos teismo nutarties įsiteisėjimas )",
"“A ruling regarding a separate complaint ( atskirasis skundas ) adopted by the appellate court shall come into force with effect from the date of its adoption.”",
"Article 346. Grounds for reviewing court decisions or rulings that have come into force in cassation proceedings",
"“1. Cassation proceedings are possible only if the grounds enumerated in this article exist.",
"2. The grounds for reviewing a case in cassation proceedings are:",
"1) breach of substantive or material legal norms which has an essential impact on the uniform interpretation and application of the law, if that breach could have meant that an unlawful court decision (ruling) was adopted;",
"2) if the court in the decision (ruling) departed from the Supreme Court’s practice as to how a certain legal rule should be interpreted and applied;",
"3) if the Supreme Court’s practice as regards a certain legal question is not uniform.”",
"Article 353. The limits of examination of the case ( Bylos nagrinėjimo ribos )",
"“1. The court of cassation, without exceeding the boundaries of the appeal on points of law, shall verify the court decisions and (or) rulings that have been appealed against inasmuch as the questions of law are concerned. The court of cassation shall be bound by the circumstances as established by the first-instance and appellate courts.",
"2. The court [of cassation] may overstep the boundaries of the appeal on the points of law if the public interest so requires ...”",
"Article 363. Suspension of execution of a court decision or ruling",
"“1. The President of the Supreme Court, the chairman of the civil cases division, the chamber for selection of the cases for the examination ( teisėjų atrankos kolegija ), a chamber of judges or plenary session of the civil cases division shall have the right to suspend the execution of a court decision or ruling until an appeal on points of law has been examined in the Supreme Court.”",
"Article 365. Reopening of proceedings",
"“1. Court proceedings which have been terminated by a court decision (ruling) which has entered into force with final effect may be reopened on the grounds and according to the rules which are set out in this Chapter. A request for reopening may be submitted by the parties to the civil proceedings and by third parties, and also persons not involved in the case but whose rights or interests protected by law are breached by the court decision or ruling which had entered into force.",
"2. Requests for a reopening of court proceedings in order to protect the public interest and according to the rules set out in this Chapter may be submitted by the Prosecutor General.”",
"Article 366. Grounds for reopening proceedings",
"“1. Proceedings may be reopened if:",
"...",
"2) essential new circumstances come to light which had not been known and could not have been known to the applicant ( nebuvo ir negalėjo būti žinomos pareiškėjui ) when the case was heard initially;",
"9) the first-instance court made a clear mistake when applying the law and its decision (or ruling) has not been reviewed on appeal. The Prosecutor General also has the right to lodge a request for the proceedings to be reopened also regarding court decisions (rulings) which have been reviewed on appeal.”",
"Article 372. Legal authority of a decision (ruling)",
"“1. A request to reopen proceedings shall not stop execution of a court decision or ruling.",
"2. A court which examines a request for reopening shall have the right to suspend the execution of a court decision or ruling until the case for reopening of the proceedings has been examined. A ruling for suspension of the court decision or ruling is not amenable to appeal.”",
"137. According to the Commentary on the Code of Civil Procedure ( Lietuvos Respublikos civilinio proceso kodekso komentaras, II tomas, Justitia, Vilnius 2005, p. 417), the norm set out in Article 353 § 1 means that the cassation court is bound by the circumstances of the case as established by the first-instance and appellate courts. The cassation court may not establish new facts or evaluate existing or new evidence afresh. When issuing a decision, the cassation court may not hold that a particular circumstance as established by a lower instance court exists or does not exist or, conversely, that a circumstance which a lower court had previously not established as existing does now exist. Furthermore, under Article 353 § 1, the court of cassation is not bound to always rely on the circumstances as established by the appellate instance court if they differ from those established by the first-instance court. The court of cassation may choose which court’s findings – those of the first instance or the appellate instance – to rely on.",
"138. By a ruling of 18 July 2017 in civil case no. 3P-1249/2017 the Supreme Court confirmed the settled case-law that questions regarding the establishment of facts could not be the object of cassation proceedings, because the court of cassation was bound by the circumstances that have been established by the first-instance and appellate courts. The cassation court reviewing such an appeal is bound by the facts established by lower courts and may decide only questions of law (Article 353 § 1 of the Code of Civil Procedure).",
"139. The Law on Courts at the material time provided that cases are heard at the Supreme Court in three or seven judges’ chambers or in plenary session (Article 36 § 5). Under the Statute of the Supreme Court, its President, as a judge, hears cases when he or she is in the composition of the Supreme Court’s chamber (Article 11).",
"140. Under the Lithuanian Constitution, justice shall be administered only by courts. When administering justice, judges and courts shall be independent. When considering cases, judges shall obey only the law (Article 109).",
"141. The Law on Bailiffs at the relevant time provided that when exercising their functions bailiffs were independent and were to act on the basis of the Constitution, international treaties signed by Lithuania, and the laws and other legal instruments adopted in Lithuania. Bailiffs are appointed and dismissed by the Minister of Justice. In carrying out their functions, bailiffs must adhere to the principle of lawfulness as well as to the principles of civil proceedings. A bailiff must carry out his professional duties in good faith. In enforcing writs of execution, the bailiff must use all lawful remedies to protect adequately the interests of the plaintiff, without violating the rights and lawful interests of other parties to the enforcement procedure (Article 3 § 2). At the material time, Article 594 of the Code of Civil Procedure provided that the procedural actions of a bailiff were supervised by the judge of the region in which the bailiff is active.",
"142. As regards parents representing children, the Civil Code reads:",
"Article 3.157. Representation of children",
"“1. Children who are legally incapable shall be represented by their parents under the law, except where the parents have been declared legally incapable by a court judgment.",
"2. Parents shall represent their children on presentation of the child’s birth certificate.”",
"143. The Lithuanian Criminal Code provides that a father, mother or a close relative who abducts their own or a relative’s young child from a children’s establishment or from a person with whom the child lawfully resides is punishable by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years (Article 156 § 2).",
"A person who, by disregarding the procedure established by law, wilfully exercises an existing or alleged right of his own or of another person which is disputed or recognised but not yet exercised, and causes major damage to that person’s rights or legitimate interests is punishable by a fine or by arrest or by imprisonment for a term of up to three years (Article 294 § 1).",
"144. The Law on International Treaties at the material time read that the treaties that had entered into force must be executed (Article 11). The principle of pacta sunt servanda has been confirmed by the Constitutional Court as early as in its ruling of 17 October 1995. According to the Constitutional Court’s ruling of 14 March 2006, that principle is also a constitutional principle in Lithuania.",
"III. RELEVANT INTERNATIONAL AND EUROPEAN LAW AND PRACTICE",
"A. The Hague Convention",
"145. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”), which came into force in respect of Lithuania on 1 September 2002, read as follows:",
"“The States signatory to the present Convention,",
"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,",
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,",
"Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –",
"...",
"Article 1",
"The objects of the present Convention are –",
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...",
"Article 3",
"The removal or the retention of a child is to be considered wrongful where –",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 4",
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.",
"Article 5",
"For the purposes of this Convention –",
"a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;",
"b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.",
"...",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.",
"Article 14",
"In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.",
"...",
"Article 16",
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.",
"Article 17",
"The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.",
"...",
"Article 19",
"A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.",
"Article 20",
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"...”",
"146. As noted by the Court in X v. Latvia ([GC], no. 27853/09, § 35, ECHR 2013), the Explanatory Report on the 1980 Hague Child Abduction Convention ‒ prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (hereinafter – “the Pérez-Vera Report”) ‒ seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply it a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the 1980 Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of the 1980 Convention, as this matter is to be discussed before the relevant courts in the State of the child’s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific concept of “the child’s best interests”.",
"147. The Pérez-Vera Report, insofar as relevant, reads:",
"“A. Definition of the Convention’s subject-matter",
"11. With regard to the definition of the Convention’s subject-matter, we need only remind ourselves very briefly that the situations envisaged are those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child. The variety of different circumstances which can combine in a particular case makes it impossible to arrive at a more precise definition in legal terms. However, two elements are invariably present in all cases which have been examined and confirm the approximate nature of the foregoing characterisation.",
"Firstly, we are confronted in each case with the removal from its natural environment of a child whose custody had been entrusted to and lawfully exercised by a natural or legal person. Naturally, a refusal to restore a child to its own environment after a stay abroad to which the person exercising the right of custody had consented must be put in the same category. In both cases, the outcome is in fact the same: the child is taken out of the family and social environment in which its life has developed. What is more, in this context the type of the legal title which underlies the exercise of custody rights over the child matters little, since whether or not a decision on custody exists in no way alters the sociological realities of the problem.",
"Secondly, the person who removes the child (or who is responsible for its removal, where the act of removal is undertaken by a third party) hopes to obtain a right of custody from the authorities of the country to which the child has been taken. The problem therefore concerns a person who, broadly speaking, belongs to the family circle of the child; indeed, in the majority of cases, the person concerned is the father or mother.",
"14. It frequently happens that the person retaining the child tries to obtain a judicial or administrative decision in the State of refuge, which would legalize the factual situation which he just brought about. However, if he is uncertain about the way in which the decision will go, he is just as likely to opt for inaction, leaving it up to the dispossessed party to take the initiative. Now, even if the latter acts quickly, that is to say manages to avoid the consolidation through lapse of time of the situation brought about by the removal of the child, the abductor will hold the advantage, since it is he who had chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable to his own claims.",
"15. To conclude, it can firmly be stated that the problem with which the Convention deals – together with all the drama implicit in the fact that it is concerned with the protection of children in international relations – derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. Admittedly, such a decision, especially coexisting with others to the opposite effect issued by another forum, will enjoy only limited geographical validity, but in any event it bears a legal title sufficient to ‘legalise’ a factual situation which none of the legal systems involved wished to see brought about.”",
"Second Part — Commentary on the specific articles of the Convention",
"Article 11 – The use of expeditious procedures by judicial or administrative authorities",
"“104. The importance throughout the Convention of the time factor appears again in this article. Whereas article 2 of the Convention imposes upon Contracting States the duty to use expeditious procedures, the first paragraph of this article restates the obligation, this time with regard to the authorities of the State to which the child has been taken and which are to decide upon its return. There is double aspect to this duty: firstly, the use of the most speedy procedures known to their legal system; secondly, that applications are, so far as possible, to be granted priority treatment.",
"The second paragraph, so as to prompt internal authorities to accord maximum priority to dealing with the problems arising out of the international removal of children, lays down a non-obligatory time-limit of six weeks, after which the applicant or Central Authority of the requested State may request a statement of reasons for the delay. Moreover, after the Central Authority of the requested State receives the reply, it is once more under a duty to inform, a duty owed either to the Central Authority of the requesting State or to the applicant who has applied to it directly. In short, the provision’s importance cannot be measured in terms of the requirements of the obligations imposed by it, but by the very fact that it draws the attention of the competent authorities to the decisive nature of the time factor in such situations and that it determines the maximum period of time within which a decision on this matter should be taken.”",
"148. In 2003 the HCCH published Part II of the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Although primarily intended for the new Contracting States and without binding effect ‒ especially in respect of the judicial authorities ‒ this document seeks to facilitate the Convention’s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention (the Pérez-Vera Report), in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). The Guide to Good Practice specifies that delays in the enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern, and recommends that States Parties ensure that there are simple and effective mechanisms to enforce orders for the return of children within their domestic systems, noting that the return must actually be effected and not just ordered (point 6.7 “Enforcement”) (see X v. Latvia [GC], cited above, § 36).",
"149. The Guide to Good Practice (Part I - Central Authority Practice, 2003) under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction specifically reads:",
"1.5.1 Expeditious procedures are essential at all stages of the Convention process",
"“Speed is of the essence in Hague abduction matters. Expeditious procedure is a key operating principle for any person or body involved in the implementation of the Convention. This is clear from the objects of the Convention as set out in Article 1, to secure the prompt return of children. It is also clear from the general direction in Article 2 to use the most expeditious procedures possible, and in Article 11 to act expeditiously in proceedings for the return of children.",
"To encourage expeditious procedures, Article 23 of the Convention removes any requirement for legalisation of documents or similar formalities.”",
"1.5.2 Failure to act promptly undermines the Convention",
"“The most contentious issue surrounding implementation of the Convention concerns delay, in processing applications, resolving matters in court, or enforcing return orders.",
"The need for speed at all stages of the process cannot be over-emphasised.",
"...",
"Many Contracting States have expressed concerns about delays and excessively complex procedures used by Central Authorities in processing cases, in responding to communications, and in referring cases to court. An essential step that minimises these obstacles, and achieves speedy or prompt action, is to develop clear and effective administrative and legal procedures for handling Convention applications. This should be done at an early stage of implementation.”",
"1.5.3 Interests of the child require expeditious action",
"“The Preamble to the Convention states that the interests of children are paramount, and that the Convention’s purpose is to protect them from the harmful effects of abduction. Experience has shown that speedy, prompt or expeditious action under the Hague Convention is a critical factor in protecting children’s interests.",
"An expedited process will:",
"minimise disruption or dislocation to the child taken from its familiar environment;",
"minimise harm to the child caused by separation from the other parent;",
"reduce the further disruption for the child which may result where a return order is made after a settled period abroad;",
"prevent or limit any advantage to the abductor gained by the passage of time.",
"Without derogating from the importance of speed as a key operating principle, a Central Authority or its intermediary needs to exercise some discretion in resolving any conflict between taking action promptly or speedily, and allowing time to negotiate an amicable resolution of the matter or a voluntary return...”",
"2.4.5 Commitment to achieving the goals of the Convention",
"“If personnel are committed to achieving the goals of the Convention, they will:",
"be professional and objective in dealing with applications;",
"not be influenced by issues of nationalism, gender bias, class or racial prejudice;",
"...”",
"6.8 Enforcement",
"“The real success of the Convention as a remedy for child abduction can be measured, not by the number of return orders made, but by the number of return orders enforced.",
"Unfortunately there is some discrepancy between the two.",
"The enforcement of return orders will be improved if the following matters are addressed in each Contracting State:",
"effective mechanisms for enforcement are included in implementing measures, including implementing legislation;",
"co-operation between the judicial authority and the enforcement agency;",
"clear directions in the return order about how the return arrangements are to be effected;",
"any necessary precautionary measures to reduce the risk of flight by the abductor with the child after the return order is made.",
"In most jurisdictions, the Central Authority is not directly involved in enforcement of return orders, but it will work co-operatively with other agencies and personnel to assist the enforcement process.",
"Legislative enforcement provisions already in effect include:",
"measures for the immediate execution of final orders;",
"directions for specific return arrangements to be made;",
"measures to prevent the child’s re-abduction pending return;",
"punitive measures to discourage avoidance of a return order;",
"authority for coercive detention or use of force;",
"issue of a warrant for the apprehension or detention of the child.”",
"B. European Union law",
"150. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Brussels II bis Regulation”) reads as follows:",
"“...",
"(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.",
"(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.",
"...",
"(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.",
"...",
"(21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required.",
"...”",
"Article 10",
"“Jurisdiction in cases of child abduction",
"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:",
"(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;",
"or",
"(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:",
"(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;",
"(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);",
"(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);",
"(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”",
"Article 11",
"“Return of the child",
"1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.",
"...",
"3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.",
"Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.",
"4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.",
"...",
"8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with ... [Article 42] below in order to secure the return of the child ...”",
"Article 28",
"“Enforceable judgments",
"1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.",
"...”",
"Article 41",
"“Rights of access",
"1. The rights of access ... granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin...”",
"Article 42",
"“Return of the child",
"1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.",
"Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.",
"2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:",
"(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;",
"(b) the parties were given an opportunity to be heard; and",
"(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.",
"In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.",
"The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)).",
"The certificate shall be completed in the language of the judgment.”",
"Article 47",
"“Enforcement procedure",
"1. The enforcement procedure is governed by the law of the Member State of enforcement.",
"2. Any judgment delivered by a court of another Member State and ... certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State...”",
"Article 50",
"“Legal aid",
"An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 21, 28, 41, 42 and 48 to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State of enforcement.”",
"Article 60",
"“Relations with certain multilateral conventions",
"In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:",
"...",
"(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"151. The applicants complained of a breach of their right to respect for their family life under Article 8 of the Convention because of the way the proceedings for the second applicant’s return to Germany had been handled in Lithuania. The applicants also argued that the decision-making process in Lithuania had been politicised, and that this had further compounded their situation and had been in breach of Article 6 § 1 of the Convention.",
"152. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018); and taking into account its case-law on the subject (see, for example, Sylvester v. Austria, nos. 36812/97 and 40104/98, § 77, 24 April 2003; Karadžić v. Croatia, no. 35030/04, § 67, 15 December 2005; Gobec v. Slovenia, no. 7233/04, § 105, 3 October 2013; and Adžić v. Croatia, no. 22643/14, § 68, 12 March 2015), considers in the circumstances of the present case that the applicants’ complaints under Article 6 § 1 of the Convention must be regarded as absorbed by their principal complaint under Article 8 thereof. The case thus falls to be examined only under the last-mentioned Article, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. The parties’ submissions",
"(a) The Government",
"153. The Government maintained that the first applicant had not exhausted the domestic remedies, given that he had not initiated any proceedings against the bailiff as regards the latter’s actions or inaction. They noted that, unlike the first applicant, I.R. had appealed against almost all the bailiff’s procedural acts. The bailiff had nevertheless made efforts to cooperate with the first applicant and had refused the “myriad” requests from I.R. to have execution proceedings suspended and had also attempted to fine her. In the Government’s view, the bailiff could therefore not be reproached for failure to execute the Court of Appeal decision of 15 March 2007 (see paragraph 26 above) for the second applicant’s return.",
"154. The Government further noted that it was I.R. who had asked the Lithuanian courts not to recognise the Oranienburg District Court decision of 20 June 2007 granting the first applicant permanent custody of the second applicant and ordering the second applicant’s return to Germany (see paragraph 92 above). The Government thus considered that the first applicant had failed to bring that particular German court’s decision to the attention of the bailiff in Lithuania, notwithstanding the fact that by that time I.R. had already manifested a lack of good will to comply with the decisions obliging her to hand over the child to the first applicant. The Government also considered that the first applicant could have presented the German court’s decision of 20 June 2007 ‒ as confirmed by the Brandenburg Regional Court’s decision of 20 February 2008 ‒ directly to the Lithuanian bailiff for execution. The Government admitted, however, that the decision of the Court of Appeal of 15 March 2007 (see paragraphs 19-21 above), and the aforementioned German court decisions in compliance with Regulation (EC) No. 2201/2003 obliging the mother of the child to return her to the father, were to be regarded as overlapping and subject to the same enforcement.",
"155. The Government also considered that, if the first applicant considered that the decision-making in his case had been politicised in Lithuania, this being in breach of Article 6 § 1 of the Convention, he had failed to bring this to the attention of the domestic courts. They pointed out that the applicant had been supported by professional lawyers throughout the court proceedings in Lithuania, and that the fact that the first applicant lived outside Lithuania did not exempt him from the obligation to exhaust the domestic remedies (they relied on Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, ECHR 2010).",
"156. Alternatively, the Government considered that the applicants’ complaints were manifestly ill-founded.",
"(b) The applicants",
"157. The first applicant pointed out that he had not been dissatisfied with the actions of the bailiff. In fact, it had been the second applicant’s mother who had opposed the child’s return to Germany. Accordingly, he himself had seen no reason to challenge the bailiff’s decisions or actions, which had been in his interests, even though those decisions and actions had not brought about the desired result, namely the two applicants’ reunion.",
"158. The first applicant also highlighted that both the Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above) and the Oranienburg District Court decision of 20 June 2007 (see paragraph 93 above) had ordered the second applicant’s return. As far as the enforcement of the former decision was concerned, the Lithuanian courts ‒ in cooperation with I.R. and, above all, the Prosecutor General ‒ had “impressively demonstrated” that they had not been interested in a swift enforcement of the child’s return. Accordingly, given that enforcement of the domestic – Lithuanian – court’s judgment had not been successful, he had no reason for assuming that the same enforcement procedure on the basis of the German court’s decision of 20 June 2007 would be any more encouraging.",
"He also noted that the Government had failed to explain why the enforcement of the certificate under Article 42 of Regulation (EC) No. 2201/2003 might have been more promising than the enforcement of a return decision in accordance with the Hague Convention. The enforcement of the certificate issued by the German court pursuant to Article 42 of Regulation (EC) No. 2201/2003 would have met the same resistance as the enforcement of the Lithuanian Court of Appeal decision of 15 March 2007 regarding the second applicant’s return on the basis of the Hague Convention. It should also be mentioned that the Lithuanian courts had repeatedly suspended the enforcement proceedings, including during the procedure concerning non-recognition of the certificate issued under Article 42 of Regulation (EC) No. 2201/2003, making those enforcement measures dependent on the preliminary ruling from the ECJ.",
"159. The applicants did not specifically comment regarding the Government’s objection that they had not raised the issue of the politicisation of their case before the Lithuanian courts. They observed, however, that the first applicant had approached all the institutions from which he could have expected some measure of assistance, including the President of the Republic, the Ombudsman for Children’s Rights, the Ministry of Justice, the Klaipėda child care authority, and the European Commission.",
"2. The Court’s assessment",
"160. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70 and 71, 25 March 2014, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, §§ 35 and 36, 17 January 2017, with further references).",
"161. On the facts of the case, the Court firstly notes that it was I.R. who appealed against the bailiff’s actions when the latter attempted to execute the Court of Appeal decision that the second applicant be returned to the first applicant’s custody (see paragraphs 31-32 above). It does not find unreasonable the first applicant’s argument that, as the bailiff had taken a number of measures to locate the second applicant and thus acted in his interests (see paragraphs 28-30 above), the first applicant was not obliged to bring any court proceedings against him. This is supported by the Government’s own argument that the bailiff’s actions were beyond reproach and that most of the bailiff’s decisions had been in the first applicant’s favour, rather than in favour of I.R. (see paragraph 153 above and paragraph 179 below; see also paragraph 214 below).",
"162. As to the second aspect of the Government’s objection, the Court points out ‒ and this has been acknowledged by the Government ‒ that at the time when the Oranienburg District Court delivered its judgment of 20 June 2007 ‒ which, moreover, was not final but had been appealed against by I.R. ‒ the enforcement proceedings on the basis of the Hague Convention and the Lithuanian Court of Appeal decision of 15 March 2007, initiated by the first applicant, had been ongoing in Lithuania. That being so, the Court does not consider that the first applicant had an obligation also to bring to the Lithuanian bailiff’s attention the intermediary decision by the Oranienburg District Court of 20 June 2007, which, all the more so, did not become final until 20 February 2008. In the particular circumstances of this case, the Court also shares the applicant’s hesitation that enforcement proceedings on the basis of Article 42 of Regulation (EC) No. 2201/2003 would have been any more promising than those on the basis of the Hague Convention and the Court of Appeal decision of 15 March 2007. Indeed, both sets of execution proceedings had been suspended by the President of the Supreme Court unilaterally or by the Supreme Court (see paragraphs 73, 79 and 94 above).",
"Moreover, as the Government themselves acknowledged, and as it can be understood from the decisions of the Court of Appeal, which consistently refused to examine I.R.’s requests to suspend the proceedings for the second applicant’s return (see paragraph 93 above), those two decisions, namely the Lithuanian Court of Appeal’s decision of 15 March 2007 and the Oranienburg District Court of 20 June 2017, had overlapped and had been subject to the same enforcement. In this context the Court also observes that in September 2007, when the Court of Appeal was deciding whether or not to examine I.R.’s request for the certificate issued by the Oranienburg District Court not to be recognised, the first applicant was in fact in Lithuania, where he was liaising with the bailiff who was about to enforce the Court of Appeal decision of 15 March 2007 (see paragraphs 26 ‑ 31 above; contrast Manic v. Lithuania, no. 46600/11, §§ 109 and 110, 13 January 2015).",
"163. Accordingly, the Government’s objection that, by not having appealed against the bailiff’s actions or by not having submitted to him an additional request to directly execute the Oranienburg District Court’s decision of 20 June 2007 the first applicant did not exhaust the available domestic remedies, must be dismissed.",
"164. The Court also considers that the admissibility of the applicants’ complaint that the decision-making in their case had been politicised is inherently linked to the merits of their grievances under Article 8 of the Convention. It therefore joins this complaint to the merits.",
"165. The Court lastly finds that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties",
"(a) The applicants",
"166. The applicants argued that the Lithuanian authorities’ actions when handling the case for the second applicant’s return to Germany had been in breach of Article 8 of the Convention.",
"167. The applicants firstly considered that the Lithuanian State could not renege on its liability by claiming that the case concerning the second applicant’s return was the first case of its kind in Lithuania and that it did not have any practical experience in such cases. For the first applicant, the second applicant was also his first and ‒ above all ‒ only child, who had been abducted to a foreign country and for whose release he had been struggling in vain for two and a half years, which amounted to a considerable loss in their relationship.",
"168. The first applicant did not rule out that initially he would have agreed to an amicable solution, had I.R. permitted him to take part in the upbringing of the child and to keep in touch with her. It had never been his intention to enforce only his own interests, but rather to find the solution that was in the best interests of the child. The mother of the child, however, had not only kidnapped the child, but had also failed to respond to the father’s proposed peaceful dispute resolution, and, with the help of the Lithuanian State institutions, had created such an “(un)lawful and inhuman circus”, that allowing the child to grow up in Lithuania had in his view become unthinkable. A country in which public institutions clearly deny the equal rights of a father and a mother was not a country in which the second applicant should grow up. Ultimately, leaving the child with her mother in Lithuania was not justifiable for the father ‒ at least at that point in time ‒ since he himself had been vilified by the child’s mother, the Lithuanian press, as well as by the politicians. In those circumstances the first applicant was sure that he would have lost his daughter forever had he not continued fighting. He considered that in such circumstances the continued stay of the child in Lithuania was not compatible with the child’s welfare.",
"169. From the applicants’ point of view, the Lithuanian authorities had not done their best to resolve the case in an appropriate manner. In fact, instead of supporting both of the applicants’ lawful interests ‒ which had been confirmed by court decisions ‒ or trying to convince the child’s mother to return the child peacefully, they had worked against the child’s father ‒ and thus expressly against the child’s interests ‒ in “an apparently misunderstood form of sympathy for the mother of the child as a mother and as a Lithuanian woman”. From the State institutions, however, one could and should expect more, in particular that they should act in an objective and impartial manner in assessing the interests of the child.",
"170. The applicants pointed out that, after the first applicant had started court proceedings in Lithuania regarding his daughter’s return under the Hague Convention, as early as in December 2006 the Klaipėda child care authority had already expressed the view that I.R. would have its support because she was the child’s mother and a child’s mother, as such, could not be an abductor (see paragraph 36 above). The first applicant asserted that those statements to the press had been made public before the authority had even spoken to him and that it was also clear from those statements that the Klaipėda child care authority not only tolerated child abduction but even advocated it.",
"171. Afterwards, having recognised that this was a case of international child abduction, the child’s mother had reacted dramatically, advancing her cause by obtaining unlawful assurances, promises, and moral and financial assistance from State officials such as the Minister of Justice, members of the Seimas, the Klaipėda child care authority, the Ombudsman for Children’s Rights, and prosecutors, to name but a few. All those players had offered I.R. options ‒ including financial aid ‒ designed to make effective enforcement virtually impossible. Their actions had been inappropriate and counterproductive, rather than demonstrating restraint in the matter. The first applicant thus considered that the main aim of the Lithuanian authorities had been to force him to “desist” from taking the child back to Germany. He also underlined that without such support from the authorities, I.R. would not have had the opportunity to obstruct proceedings for the second applicant’s return and her actions as regards obtaining suspension of the enforcement proceedings would not have been “crowned with success”. In such circumstances the bailiff’s opportunities for enforcing the court decision were virtually non-existent. The Government misconstrued this when, even though it was in fact the sole responsible entity, it perceived I.R. to be acting as a private person and rejected any responsibility on the part of the State for the “disastrous conduct” of the proceedings. As a result, although the return decision had been taken as early as 15 March 2007 (see paragraphs 19-21 above), it was of no help to the applicants since the enforcement thereof had remained ineffective. Ultimately, a non ‑ enforceable title was no more useful than no title at all, and the German courts’ decision had thus been “thwarted”.",
"172. Furthermore, although the Lithuanian State should have ensured that its legal and institutional bodies had been trained to handle this type of procedure ‒ namely child return under the provisions of the Hague Convention ‒ those State institutions, instead of preventing the abusive lawsuits brought by I.R., had condoned her unlawful behaviour. For the applicants, the greatest blame in that connection lay with the Prosecutor General ‒ who had submitted repeated requests to reopen the court proceedings ‒ and with the Supreme Court and its President, who on multiple occasions had for spurious reasons suspended the enforcement of both the Lithuanian and the German courts’ decisions ordering the second applicant’s return. With regard to the Supreme Court, the applicants also specifically criticised its decision of July 2008 to order a psychological expert opinion two years after the child’s involuntary separation from the first applicant even though it was aware of the fact that I.R. had been retaining the child in Lithuania illegally throughout that time, disconnected from the first applicant.",
"173. As regards the speediness of the court proceedings in child return cases, the applicants also pointed out that the ECJ had been in a position within a period of eight weeks ‒ which included conducting proceedings entailing the participation of several interested European Union Member States and thus an extremely complex situation involving multilingualism and oral presentations ‒ to pronounce a preliminary ruling and to deliver a written judgment (see paragraphs 94-103 above). After the very clear ruling by the ECJ, the Supreme Court had required yet a further six weeks to implement the ECJ’s judgment in a separate domestic decision. For the applicants, it was unjustifiable that it had taken two and a half years to resolve his case in Lithuania, a period of time that contradicted the principle that cases concerning child care should not be protracted ‒ a fact which was also emphasised by the ECJ.",
"174. The first applicant also pointed out that, despite the German courts’ judgments, it had not been possible for the two applicants to arrange family cohabitation from 21 July 2006 to 20 October 2008. He submitted that, in total, during those two years, only three personal meetings had taken place – in December 2006, in January 2008 and in September 2008 – over a total of 66 hours, and with intervals of eleven and nine months between those meetings. The first applicant also stated that until the Supreme Court’s ruling of 25 August 2008 (see paragraphs 106 and 107 above) the two applicants had been able to see each other for only 36 hours during a two ‑ year period. Moreover, these meetings had taken place under the supervision of I.R. or the Ombudsman for Children’s Rights or the Klaipėda child care authority and had been further complicated by the fact that language barriers had been created in the meantime, since the first applicant was fluent only in German, and the second applicant spoke only Lithuanian. In such circumstances, one could not talk in terms of family life having existed, or even any form of cohabitation, despite the fact that the first applicant had sole custody rights in respect of the second applicant. In this context the first applicant was also dissatisfied that the Klaipėda child care authority and the Ombudsman for Children’s Rights had not been able or willing to make arrangements for more frequent contact between the first applicant and the second applicant, in spite of the former’s repeated requests.",
"175. The applicants underlined that their right to respect for their family life had been violated not only due to ineptness of the Lithuanian courts and institutions, but also because of “massive public and media-related, country ‑ wide hostility” against the first applicant.",
"176. The applicants also pointed out that even after the legitimate return of the second applicant to Germany, the first applicant had had to face criminal proceedings in Lithuania. They pointed out that a criminal prosecution had been opened against him not only at the request of I.R., but also at the request of a State institution, namely the Klaipėda child care authority.",
"177. In his observations to the Court of 21 December 2016, the first applicant lastly asserted that at that time (namely December 2016) the second applicant was an exceptionally good student and athlete, and a self ‑ confident girl participating in many hobbies and extra-curricular activities. He pointed out that this was the result not only of his and the German child care authorities’ efforts, but also thanks to “self-moderation of I.R.”, who at some point had recognised that the second applicant could no longer live with her in Lithuania for legal reasons. According to the first applicant, due to a fresh danger of abduction, only protected or accompanied interaction could be arranged in the first three years after the child’s return to Germany. By 2016 though, the mother had unlimited interaction with the child, who spent every alternate weekend and half of the German school holidays with I.R. This was possible because, in spite of all previous allegations and statements before the Lithuanian courts, the child’s mother had in fact moved back to Germany in 2010, had married there for the third time and was now living in the same town as the first applicant. The son, whom I.R. had asserted that she could not take with her to Germany and could not leave in Lithuania, had been left in Lithuania in 2010. He visited the second applicant regularly in Germany, but lived alone in Klaipėda. The first applicant thus insisted that all the arguments put forward to prevent the return of the second applicant between 2006 and 2008, and which had been employed during the court proceedings in Lithuania and had caused the suspension of the enforcement of the return decision, had therefore been without substance and unfounded, which the first applicant had already made clear during each of the court proceedings at that time.",
"(b) The Government",
"178. At the outset the Government “felt an urge” to point out that this case had been very famous in Lithuania, given that it was the first time that questions relating to international child abduction and involving domestic law on civil procedure, private international law and European Union law had been raised, questions which required even a referral for a preliminary ruling to the ECJ. Furthermore, the case concerned a particularly delicate issue: a family matter, which involved “a child’s painful return to the father and thus her inevitable separation from the mother”. Such a “sore situation of a family” required the courts − which had been presented for the first time ever with such an exceptional situation involving questions of the Hague Convention, European Union law and the European Convention on Human Rights − to examine the case with particular care and precision, all of which had demanded careful scrutiny and had thus been time-consuming. Moreover, it had required laying the foundations for the formation of proper case-law by way of leading precedent for future situations.",
"179. The Government admitted that the case at hand had been a very particular one, and that therefore it had been widely commented on by the mass media and had gained the attention of the public, including many politicians. The case, involving such complex questions of law and a sensitive factual situation, posed many questions even for professional judges. Needless to say that somewhat wider repercussions in the media and by politicians had been inevitable. However, professional judges were both required and perfectly able to dissociate themselves from that kind of material and from all external influences of whatsoever nature. Even so, they could not ignore I.R.’s arguments, since she was one of the parties in the civil case, and to do so would have risked possibly undermining her interests. The Government also considered that the materials of the case did not substantiate the applicants’ allegations about the possible politicisation of the case or undue influence on the courts, or those courts being biased against the first applicant. In fact, given the seriousness of the case, the courts had given careful scrutiny to both parties’ complaints and had employed every possible measure, including referral to the ECJ for a preliminary ruling, in order to arrive at lawful and well ‑ founded decisions. During the court proceedings in Lithuania the first applicant had been represented by a professional lawyer of his choice and had also been fully involved in those proceedings, taking part in the court hearings, and submitting claims and appeals. Moreover, most of the bailiff’s decisions had been in the first applicant’s favour, rather than in favour of I.R. The applicant’s allegation that the decision-making in his case had been unfair was therefore merely his subjective perception. The Government thus were of the view that the fact that the case was of great interest to society, the media and politicians did not necessarily mean that it had been politicised, or that the courts which heard the case had been anything other than impartial and independent. In sum, the decision-making process had not been flawed but had satisfied the requirements of the Convention.",
"180. Whilst acknowledging that the decision-making process in the applicants’ case, taken as a whole, could be considered to have been time ‑ consuming, the Government considered that the delays had not been unreasonable or unjustified. The scrupulousness of the Lithuanian courts in conducting a detailed analysis in the best interests of the child and balancing those interests against the overall family situation, with the aim of tackling major difficulties in relation to the enforcement of those decisions, should be regarded as outweighing the individual interests of the two applicants. It was true that two major procedural steps – firstly, the decision of the President of the Supreme Court of 22 October 2007 to suspend the execution of the second applicant’s return (see paragraph 73 above) and, secondly, the referral of the case to the ECJ (see paragraph 94 above) – had delayed the resolution of the case. The Government pointed out, however, the necessity of bearing in mind the principle that it is first and foremost for the national courts themselves to interpret the provisions of domestic law, and that their interpretation may not be questioned unless there has been a flagrant violation of the domestic law (they relied on DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 61, 5 October 2010).",
"To that end the Government considered that the decision of the Supreme Court of Lithuania to accept appeals on points of law by I.R. and by the Prosecutor General regarding the reopening of the civil proceedings had been adopted in compliance with Articles 363 and 372 of the Code of Civil Procedure (see paragraph 136 above). Moreover, the child’s best interests, also in the light of Article 13 § 2 (b) of the Hague Convention, had been the principle guiding the Lithuanian courts, which, in the Government’s view, had acted promptly in adopting their final decisions. In fact, as early as November 2006 the State Child Rights and Adoption Service had submitted to the Klaipėda District Court the conclusion that the return of the second applicant would not breach her interests, and it had maintained that position throughout the court proceedings − a position that favoured the first applicant’s interests rather than those of I.R. However, the mother had shown “hostility and resistance” and made “extraordinary efforts”, having recourse to each and every legal remedy available to her, submitting convincing arguments which the courts found themselves obliged to verify. At the same time the courts had adopted numerous related interim decisions whilst still putting all their efforts into examining the case as quickly as possible and ultimately adopting all final decisions in the first applicant’s favour. The Government asserted that the Lithuanian authorities should therefore not be held responsible for the situation about which the two applicants complained because those authorities had acted in a most diligent and balanced manner.",
"181. In response to the first applicant’s accusations that the Prosecutor General had abused his position, the Government felt it necessary to explain to the Court that the Prosecutor General had acted on the basis of I.R.’s request (see paragraph 64 above). It also had to be noted that under Article 365 § 2 of the CCP the Prosecutor General had the right to apply to a court as regards reopening when he was protecting the public interest. The Government also disputed the applicants’ suggestion that I.R.’s interests had been unjustly furthered in Lithuania because the Minister of Justice P.B. had promised her financial aid. Contrary to the first applicant’s beliefs, I.R. had concluded a contract for her representation with a private lawyer (see paragraph 25 above) in May 2007, whereas her meetings with the Minister of Justice had taken place only later (see paragraphs 52, 56 and 62 above). For the Government, and in any event, the State guaranteed legal aid so that individuals would not be prevented from seeking justice even if they had no financial means. Moreover, under Article 50 of Regulation (EC) No. 2201/2003 the first applicant would have been eligible for free legal aid in Lithuania, but he had chosen to hire a private lawyer instead (see paragraph 150 above).",
"182. As to the inquiry by the European Commission into the reasons why the procedures laid down in Community law had not been implemented (see paragraph 81 above), the Government pointed to the response from the Ministry of Justice explaining that the courts had been independent in administering justice, and that State institutions as well as politicians had been prohibited from interfering in the courts’ activities (see paragraph 83 above). The Government submitted that the answer from the Ministry of Justice had apparently satisfied the European Commission, because the latter had not instituted proceedings against Lithuania before the ECJ.",
"183. The Government also considered that, in any event, the decision of the Lithuanian Court of Appeal of 15 March 2007 and that of the Oranienburg District Court of 20 June 2007 had been enforced on 20 October 2008 when the first applicant had taken the second applicant away with him “in a drastic way” (see paragraph 112 above).",
"184. Lastly, in their observations of 14 March 2017, and having noted the applicants’ overview of the current family situation, the Government were “glad to know” that in such a difficult situation as the present one the first applicant and I.R. “had finally overcome emotional hurdles and established a mature relationship focussing on the best interests of the child, that is, those of the second applicant”. They referred to the Court’s case-law indicating that, obviously, a certain amount of time had to pass before parents could arrive at reasonable decisions (the Government cited Pascal v. Romania, no. 805/09, § 85, 17 April 2012). However, in the Government’s view, the present state of affairs did not invalidate the arguments used during the proceedings that had taken place between 2006 and 2008. The Government still saw that the Lithuanian authorities had acted in compliance with the law and within the margin of appreciation given to them in such cases.",
"2. The Court’s assessment",
"185. The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of the child and the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 93-102 and 107, ECHR 2013) and in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see, among the most recent authorities, Vilenchik v. Ukraine, no. 21267/14, § 43, 3 October 2017 and the case-law cited therein). The Court has held, in particular, that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131 and the case-law cited therein; as to fundamental rights and the principle of mutual trust within the EU, see Avotiņš v. Latvia [GC], no. 17502/07, §§ 46-49, ECHR 2016).",
"186. In the instant case, the primary interference with the applicants’ right to respect for their family life may not be attributed to an action or omission by the respondent State, but rather to the action of the first applicant’s former wife and the second applicant’s mother, a private individual, who retained the second applicant in Lithuania (see K.J. v. Poland, no. 30813/14, § 52, 1 March 2016).",
"187. That interference, however, placed the respondent State under a positive obligation to secure for the applicants their right to respect for their family life, which included, where appropriate, taking measures under the Hague Convention with a view to ensuring their prompt reunion (see Adžić, § 92, and, more recently, Vilenchik, § 45, both cited above).",
"188. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 99, ECHR 2012). In all decisions concerning children their best interests should be the paramount consideration (see Neulinger and Shuruk, cited above, § 135).",
"189. As regards the Hague Convention proceedings, the Court has emphasised that Article 8 of the Convention requires that domestic courts carry out a careful analysis of the matter and make a ruling giving specific and sufficiently detailed reasons in the light of the circumstances of the case. This would enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see, mutatis mutandis, X v. Latvia, cited above, § 107). The Court has also held that where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by EU law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law (see Avotiņš, cited above, § 116).",
"(a) As to the domestic courts’ conduct until 15 March 2007",
"190. The Court observes that the assessment of the child’s best interests carried out by the Lithuanian courts at least at the beginning of the first applicant’s Hague Convention proceedings did indeed revolve around the question of whether returning the child to Germany into her father’s care and separating her from the mother would disturb the child’s sense of security and have a negative impact on her emotional state.",
"191. Firstly, questions to this effect were put to experts from the State Child Rights and Adoption Service with a view to obtaining the conclusion which later served as the basis of the Lithuanian courts’ assessment of the applicability of the exceptions under Article 13 (b) of the Hague Convention (see paragraphs 15 and 145 above). Those experts in fact stated that the second applicant’s return to Germany would not place her in an intolerable situation, provided that her interests were protected upon her return to Germany, whilst also pointing out the absence of any proof that the first applicant would be incapable of taking care of his daughter (see paragraph 15 above). In this context the Court also reiterates its position that the exceptions to return under the Hague Convention must be interpreted strictly. Thus the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Indeed, as the Court concluded in the case of X v. Latvia, the notion of “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear (see X v. Latvia, cited above, § 116, see also G.S. v. Georgia, no. 2361/13, § 56, 21 July 2015, with further references).",
"192. The first applicant’s Hague Convention request was dismissed by the Klaipėda Regional Court, whose main line of reasoning rested on three arguments: firstly, that the child could be harmed by separation from her mother because the latter might be arrested, secondly, that I.R.’s son had a psychological ailment and refused to return to Germany, and thirdly, that the second applicant could move to Germany only after a decision regarding her custody had been taken (see paragraph 17 above). Hence, the first-instance court concluded that there was a high probability that her return to Germany would cause her serious psychological harm.",
"193. The Court notes that in its decision of 15 March 2007 the Court of Appeal rejected the lower court’s arguments, holding that the second applicant’s suffering would not exceed the normal stress linked with relocation from one parent to another such that she would be placed in an intolerable situation (see paragraph 20 above). The appellate court held that the retention of the child outside her habitual place of residence in Germany was wrongful within the meaning of Article 3 of the Hague Convention. The court underlined that the criminal proceedings against I.R. had been discontinued in Germany, and that it had no reason to doubt that the German courts could properly evaluate the factual circumstances relating to the question of custody. Furthermore, the Court of Appeal also pointed out that questions relating to the child’s custody were separate from those regarding the child’s return (see paragraph 19 above). This is also supported by the Court’s own case-law, which has consistently held that issues of custody and access are not to be intertwined in Hague Convention proceedings (see Maumousseau and Washington v. France, no. 39388/05, § 69, 6 December 2007,, and K.J. v. Poland, § 70, cited above; also see the ground rules of Pérez-Vera Report in paragraph 146 above).",
"194. The Court points out that the Court of Appeal reached that decision five months after the first applicant’s request for his daughter’s return (see paragraphs 14 and 19 above), thus exceeding the six-week time-limit provided for in Article 11 paragraph 2 of the Hague Convention – which applies both to first-instance and appellate proceedings (see paragraph 145 above; also see Adžić, cited above, § 97). That being so, the Court has held that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case (see X v. Latvia, cited above, § 118).",
"In the circumstances of the instant case and concerning this particular set of court proceedings, the Court accepts that the Klaipėda Regional Court and the Court of Appeal had to reconcile their two obligations under Article 8 of the Convention. On the one hand, given the urgency of the situation caused by the child being held in Lithuania unlawfully, they had a positive obligation towards the applicants to act expeditiously (see Vilenchik, cited above, § 53). On the other hand, they had a procedural obligation towards I.R. to effectively examine plausible allegations that returning the second applicant to Germany would expose her to psychological harm, particularly in the light of I.R.’s claim that she could not follow the second applicant to Germany for fear of prosecution, as well as the need to procure and examine the evidence from the child care authority concerning the impact of the child’s separation from her mother. The Court is therefore ready to accept that those questions required detailed and to an extent time-consuming examination by the Klaipėda Regional Court and the Court of Appeal, which was necessary in order to reach a decision achieving the requisite balance between the competing interests at stake, the best interests of the child being the primary consideration.",
"The Court also notes that, pursuant to Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, the 15 March 2007 Court of Appeal decision on the child’s return pursuant to the Hague Convention was not amenable to appeal on points of law (see paragraph 134 above). Likewise, it notes that after that set of court proceedings, on 13 June 2007 the Klaipėda Regional Court issued a writ of execution, on the basis of which the bailiff was to facilitate the reunion of the two applicants (see paragraph 26 above).",
"The Court therefore finds that the decision-making in the courts, although lengthy under the standards of the Hague Convention, up to this point met the requirements of Article 8 of the European Convention on Human Rights.",
"(b) Developments after those court decisions",
"195. The applicants argued, however, that − with the help of the Lithuanian institutions − I.R. had created such “an (un)lawful and inhumane circus” in Lithuania that any kind of future for the second applicant in that country had become unthinkable. In that connection the applicants claimed that their case had been politicised, which had led to an unforgivable protraction of the decision-making process regarding the two applicants’ reunion and had threatened to bring about the dissolution of their relationship.",
"196. The Court emphasises that in the present case it is called upon to examine whether Lithuania has fulfilled its positive obligation to protect the right to family life under Article 8 of the Convention. Under the Convention, this duty is incumbent on all national authorities, not only the courts. Therefore, for the purposes of Article 8, the Court must also take account of material evidence or information that suggests, under the required standard of proof, that national authorities, including members of the executive and legislative branches, attempted to influence or exert pressure within the decision-making process before the courts (see also paragraph 209 below).",
"The Court will examine each of the aforementioned aspects (see paragraph 195 above), which formed the context of the decision-making in the applicants’ case, in turn.",
"(i) Reaction to the Court of Appeal decision of 15 March 2007",
"197. The Court deems it necessary to recapitulate the sequence of events in the present case. It recalls that as early as December 2006, when the court proceedings concerning the second applicant’s return were pending before the Klaipėda Regional Court, the director of the Klaipėda child care authority publicly proclaimed that she could not comprehend how a mother could be accused of kidnapping her own child, that the child belonged to the mother and that, in a similar situation, she herself would likewise have taken her child away (see paragraph 36 above).",
"198. Later on, as of summer 2007, the bailiff undertook measures to enforce the Court of Appeal decision of 15 March 2007 by contacting I.R. and asking her to show good will in the matter. The first applicant arrived in Lithuania to take part in those proceedings. As long as those proceedings were not suspended, which was on 22 October 2007 (see paragraph 73 above), the bailiff proceeded with the enforcement of the writ. However, either I.R. could not be found or – for instance in September 2007 − refused to disclose the child’s whereabouts, thus further aggravating the two applicants’ situation by denying the first applicant any contact with his daughter (see paragraphs 28-31 above; also see point 6.8 in paragraph 149 above). The child’s mother instead chose to put all her efforts into garnering public and institutional support for the idea that “in Lithuania mother and child were sacred and inseparable”, an idea which, in her view, had up to that point not been properly considered by the courts (see paragraphs 58 and 61 above).",
"199. It is quite impossible to overlook that the upsurge in public, institutional and political pressure, which in any case had already been a feature of the applicants’ case (see paragraph 48 above), reached a “particular urgency” (see paragraph 46 in fine above) just at the time when the Lithuanian bailiff was about to execute the Court of Appeal decision of 15 March 2007 and to transfer the second applicant to the first applicant’s custody. Firstly, a petition had been signed − as was considered appropriate by a significant part of Lithuanian population − to support “Luisa”, notwithstanding the German and even the Lithuanian courts’ findings that it was actually in the child’s best interests for her to return to the first applicant in Germany (see paragraph 57 above). The widespread media focus on the case was also acknowledged by the President of the Republic (see paragraph 40 above), and by parliamentarians (see paragraph 51 above). As pointed out by the first applicant in his letter to the Ombudsman for Children’s Rights, R.Š., he had been demonised in the Lithuanian press and letters had been published calling him “a German pig”, “a Nazi”, “fascist” and “a criminal”, and he, his lawyer and the bailiff had also received threats (see paragraphs 53 and 54 above).",
"200. In addition to the massive interest amongst the public at large, public statements of different sorts were made by various politicians in this connection. In particular, members of the Seimas pleaded that “the State should not remain a bystander ... when human fates were being broken” (see paragraph 51 in fine above) and that “a Lithuanian citizen must be defended”, that “the link between the Mother and the child ” and the “link to the family and the homeland was a great virtue” (see paragraph 46 above), and that one should not remain a bystander when “our children [were being] taken away to foreign countries” (see paragraph 42 above). The Court particularly notes the statements made by child care professionals, firstly the Ombudsman for Children’s Rights, R.Š., revealing that “from the very beginning the position of the Ombudsman’s Office was that the child should be with the mother”, and that “we should search for ways and possibilities to let [the children] remain in Lithuania” (see paragraph 49 above). In similar vein, the director of the Klaipėda child care authority, whose position as regards the applicants’ reunion apparently remained unchanged, confessed to the press that she had tried to persuade the first applicant to renounce his custody rights, but had been unsuccessful (see paragraph 60 above; about her earlier statements see paragraph 36 above). This, for the Court, appears to have been particularly inappropriate, given the maxim that the personnel dealing with the Hague Convention questions should be professional, objective and not be influenced by issues of nationalism, gender or any other prejudice (see point 2.4.5 of the Guide to Good Practice under the Hague Convention in paragraph 149 above).",
"201. Contrary to what has been suggested by the Government, the politicians’ actions were not confined to merely voicing their opinions in public, which the Government thought the Court should perceive as normal, given society’s interest in the case (see paragraph 179 above). They manifested themselves in much more disquieting forms, which may be seen as concerted efforts to help I.R. to keep the child with her in Lithuania (see also paragraph 211 below). The Court will address those actions below.",
"(ii) Calls for the courts to reopen the case, overt pressure on the bailiff and attempts to tailor legislation to I.R.’s situation",
"202. Whilst noting that the President of the Republic expressed the view that interference with the actions of the courts when the latter were deciding the question of the second applicant’s return would be unconstitutional and in breach of the courts’ independence (see paragraph 40 above), the Court also observes that, as clearly transpires from their statements and actions, many Lithuanian politicians and State institutions did not share that view. It points to the statements by certain members of the Seimas who openly questioned the lawfulness of the court judgments, considering that they lacked “elementary logic” and were “not humane”, and also asked the Minister of Justice to respond (see paragraph 51 above). Likewise, the Chairman of the Seimas Committee on Human Rights expressed the hope that the courts would have the “decency to reopen the case” for the second applicant’s return should the Prosecutor General’s Office request such reopening (see paragraph 48 above). The Committee and its Chairman also asked the Ministry of Justice to help I.R. in a way that would see the case moved from the German courts to Lithuania (see paragraphs 47 and 48 above). It is also clear that these questions had been discussed by I.R. and the Minister of Justice (see paragraph 56 above). It further transpires that the Minister of Justice encouraged such doubts and kept hope alive in I.R.’s mind for some time, because even after meeting her in summer 2008 he stated that it was important to endorse the Supreme Court’s hesitation as to whether German courts had jurisdiction in her case (see paragraph 62 above). The Court finds that such statements can only be seen as calls to establish “artificial jurisdictional links” to legalise the unlawful factual situation brought about by I.R. (see points 11-14 of the Pérez-Vera report, cited in paragraph 147 above).",
"203. The Court further points out that on 7 September 2007 six members of the Seimas exerted pressure on the bailiff not to execute the court decision, even though under Lithuanian law the bailiff is independent when executing his functions and should abide by the law and international treaties (see paragraphs 39 and 141 above). Later that month, forty ‑ one members of the Seimas asked the Constitutional Court to examine whether the provision of the Law on the Implementation of EC Regulation No. 2201/2003 which did not allow an appeal on points of law was not in breach of the Constitution (see paragraph 41 above). The Court is mindful that the members of the Seimas exercised their right to challenge, in the procedure of abstract review of constitutionality, the compliance of Lithuanian legislation with the Constitution granted to them under domestic law. However, it is plain that the Seimas members’ request for such a Constitutional review was tailored to the specific situation of the second applicant, since they openly stated that the reason for it was “the German courts’ decisions” which led to “our Lithuanian children ... [being] taken away to foreign countries” (see paragraph 42 above). It is true that the initiative by the Seimas members did not come to fruition. However, the Constitutional Court discontinued the legal proceedings regarding the constitutionality of that act on the grounds that a new Law on Implementation of the EU Regulation had been passed (see paragraphs 43 and 134 in fine above).",
"(iii) Admonition of employees of the State Child Rights and Adoption Service",
"204. The Court now turns to another aspect of politicians’ involvement in the decision-making in the applicants’ case. As correctly noted by the Government (see paragraph 180 above), at the very beginning of the Lithuanian court proceedings under the Hague Convention for the second applicant’s return, the State Child Rights and Adoption Service had submitted to the Klaipėda District Court the conclusion that it would be in the child’s best interests to return to Germany. The child care experts supported this view at the Klaipėda District Court hearing (see paragraph 15 above), and the Court of Appeal was of the same view in its final decision of 15 March 2007 (see paragraph 19 above). However, according to the documents in the Court’s possession, that institution and its employees were later severely criticised by politicians who not only interrogated them in person, but also publicly rebuked them for having been “ambivalent”, “unpatriotic”, “lacking simple humanity”, and being “stubborn” for not having “defended a Lithuanian citizen” (see paragraph 46 above). On this last point the Court points out that at the time it was only I.R. who had Lithuanian citizenship, which allows it to conclude that the politicians’ remarks implied that the State Child Rights and Adoption Service’s employees should defend her, notwithstanding the principle that it was the best interests of the child which should prevail.",
"For the Court, such overt instructions to the child care specialists showed obvious disregard for child care employees’ duty to be professional and objective in dealing with applications for a child’s return, and, above all, not to be influenced by issues of nationalism and gender bias (see point 2.4.5 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). It is also plain that the politicians’ statements were not without purpose, since they clearly pointed out that the State Child Rights and Adoption Service’s conclusions “affected court decisions”, and that it was therefore paramount for those conclusions to be “just” and accurately reflect the “social situation” of the second applicant as perceived by those politicians (see paragraphs 38 and 45 above). The Seimas Committee on Human Rights as a body, as well as parliamentarians acting by themselves, went as far as to urge the State Child Rights and Adoption Service’s employees to “wash off [their] tainted tunic” (see paragraph 46 above), also suggesting that their superiors at the Ministry of Social Security and Labour should examine whether those employees were fit for their duties (see paragraph 38 above) and should also order those employees to produce another conclusion, which would be objective in those politicians’ view (see paragraph 45 above). The Chairman of the Seimas Committee on Human Rights also expressed the hope that those employees would “obey” the instructions from the Ministry (see paragraph 48 above). It also transpires from the Supreme Court’s ruling of 25 August 2008 that the experts were eventually reprimanded (see paragraphs 106 and 107 above).",
"205. Apart from the fact that such developments clearly show political pressure on the courts and child care employees charged with the decision-making in the applicants’ case, even if indirectly, the Court also considers that such statements by the Lithuanian State institutions and the politicians unmistakeably demonstrate that they had substituted their own views as to the best interests of the child for those of the child care professionals and undermined their expert judgment. Indeed, the politicians had not shied away from making statements suggesting that the second applicant’s return to Germany and her separation from her mother and brother would put her in an intolerable situation and possibly cause her irreparable damage (see paragraphs 38 and 45 above), whereas it is the immediate return of the abducted child that prima facie corresponds to the specific concept of “the child’s best interests” (see paragraph 146 in fine above; see also point 1.5.3 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). In this context, the Court particularly notes the inappropriate stance of the Chairman of the Seimas Committee on Human Rights, who, notwithstanding the domestic and international courts’ decisions long in force, suggested that the first applicant should move to Lithuania on the grounds that I.R. had been “a mother beyond reproach” and the second applicant would not then be separated from her mother and her brother (see paragraph 63 above). The Court observes that those statements by the said politician were made already after and notwithstanding the ECJ’s preliminary ruling, and also after the Supreme Court’s ruling, pursuant to which I.R. should have executed the German courts’ decisions and returned the second applicant to Germany (see paragraphs 106 and 107 above).",
"(iv) Recognising the second applicant’s Lithuanian citizenship and financial support to I.R.",
"206. On the facts of the case the Court further notes that − in the context of a generally heightened atmosphere in Lithuania and with the aim of “defending a Lithuanian citizen”, namely “the Mother” (see, for instance, paragraph 46 above) − certain Lithuanian State officials and politicians also considered another legal avenue for strengthening legal links between the second applicant and Lithuania (see points 11-15 of the Pérez-Vera Report, cited in paragraph 147 above), namely, that the likelihood of I.R.’s keeping the child in Lithuania would be improved if the second applicant were a Lithuanian citizen.",
"The Court refers in particular to the prosecutor’s comments that “if [the second applicant] were a Lithuanian citizen, maybe it would be possible to help her somehow”, and “we must have recourse to all the possibilities” (see paragraph 59 above). The Court further observes that members of the Liberals’ Union political faction in the Seimas asked the President of the Republic to grant the second applicant Lithuanian citizenship by way of exception and “as a matter of particular urgency” (see paragraph 46 in fine above).",
"The Court points out that, under Article 16 of the Law on Citizenship in force at that time, by way of exception Lithuanian citizenship could indeed be granted for the purpose of “strengthening Lithuania’s power and authority in the international community” (see paragraph 132 above). The facts of this case undoubtedly demonstrate that the second applicant’s story had indeed attracted international attention, but in a somewhat different sense (see paragraphs 81 and 100). Be that as it may, that political initiative apparently failed to persuade the President of the Republic, who by then had already expressed his confidence in the courts’ ability to examine the second applicant’s case objectively, and pointed out that it would have been unlawful for him to be involved in the decision ‑ making in this case in any form (see paragraph 40 above).",
"207. That being so, as openly admitted by the Chairman of the Seimas Committee on Human Rights, the Committee and he personally had been working on the planned amendments to the Law on Citizenship, tailoring it to the second applicant’s situation and, specifically, to “help I.R.” (see paragraph 91 above, see also, mutatis mutandis, Baka v. Hungary [GC], no. 20261/12, § 149, 23 June 2016). Afterwards, the Seimas amended Article 9 § 1 of the Law on Citizenship to allow persons in the second applicant’s situation – namely children born outside Lithuania but one of whose parents was a Lithuanian citizen − to be recognised as Lithuanian citizens (see paragraph 133 above).",
"The Court cannot but note that two days after that legislative amendment had come into force, I.R. asked the Lithuanian authorities to issue the second applicant with a Lithuanian passport, and her request was granted (see paragraph 88 above). Although the first applicant later appealed against that decision, conceding that his daughter had the right to be a Lithuanian citizen but nonetheless highlighting that certain rules for recognition of citizenship had to be observed, in particular, that pursuant to the German courts’ decisions it was the first applicant who had been solely granted the right to deal with questions of his daughter’s citizenship and that I.R. therefore had not had the right to lodge such a request (see paragraph 89 above), by a decision of January 2009 the Migration Department ignored his arguments and dismissed his complaint (see paragraph 90 above). It observes, specifically, that about one month prior to that decision the same Migration Department had ruled that agreement from both parents was necessary for a citizenship request (see paragraph 87 above).",
"Lastly, the Court notes that the first applicant had not argued having appealed against the Migration Department’s decision of January 2009. Even so, it takes account of the first applicant’s argument that he had not been against his daughter also having Lithuanian citizenship as such (see paragraph 89 above) and, above all, of the fact that the applicant’s complaint to this Court concerning the citizenship-recognition procedure in Lithuania had been only one element of his case for the child’s return, which had in any case taken place de facto on 20 October 2008 (see paragraph 112 above).",
"The Court also points out that the first applicant had no standing to complain about procedures in Lithuania such as the amendment of the Law on Citizenship, which the Court has already found to have been tailored to accommodate the specific situation of I.R. and the second applicant. Accordingly, the Court rejects the Government’s argument of non-exhaustion of the domestic remedies regarding this particular aspect of politicisation of the case.",
"208. The Court lastly turns to the applicants’ argument that during the proceedings for the second applicant’s return I.R. received support and assurances from the Minister of Justice, which only served to complicate the two applicants’ situation still further. Although the Government pointed out that both the first applicant and I.R. had private lawyers during the court proceedings in Lithuania, which for the Government showed that they were on an equal footing, the Court cannot entirely agree with this. Firstly, it points to the public statements made by the Minister of Justice that the State ‑ guaranteed legal aid office should guarantee I.R. free legal assistance, as far as possible (see paragraph 52 above). Taken in the context of other public remarks made by the Minister of Justice (see paragraph 62 above) as well as declarations by other politicians that the Court has already considered, such statements could not have instilled in the first applicant much confidence in the Lithuanian legal system.",
"The Court also finds undisputed the fact that support for I.R.’s cause was forthcoming right up to the level of the Lithuanian Government, which had gone as far as to pass a resolution allocating I.R. a sum of money to cover her lawyer’s costs for the proceedings at the ECJ (see paragraph 97 above). It is apparent from I.R.’s lawyer’s statements to the press that his position was one of support for I.R.’s argument that the second applicant should stay with her in Lithuania (see paragraph 101 above). This fact is also confirmed by the Advocate General in her View (see paragraph 98 above). I.R. had also declared that the ECJ was her last hope (see paragraph 96 above). Neither can the Government argue before this Court that granting money to pay for I.R.’s lawyer’s services in the Luxembourg Court was beneficial for the Lithuanian legal system, in the light of their argument that the applicants’ case set a precedent regarding how such cases were to be handled in Lithuania in future (see paragraph 178 above). It is sufficient to note that the Lithuanian Government’s interests in Luxembourg in fact were represented by the European Law Department (see paragraph 101 above), whatever its position may have been. That being so, the Court cannot but conclude that, notwithstanding the principle that the rights of the spouses in the family are equal (see paragraph 130 above), by having financially supported one of the spouses the State of Lithuania thus acted on her behalf.",
"(v) Conclusion as to the behaviour of and analysis conducted by the domestic authorities",
"209. The Court, in assessing evidence, has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. The Court’s role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to issues of evidence and proof. The Court adopts those conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts in their entirety and from the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It has been the Court’s practice to allow flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. In certain instances, only the respondent Government have access to information capable of corroborating or refuting the applicant’s allegations; consequently, a rigorous application of the principle affirmanti, non neganti, incumbit probatio is impossible (see, mutatis mutandis, Baka, cited above, § 143, with further references, and, mutatis, mutandis, Merabishvili v. Georgia [GC], no. 72508/13, § 311, 28 November 2017, and the case-law cited therein; in this context also see paragraph 196 above).",
"210. In the light of the foregoing (see paragraphs 197-208 above), and although the Government invoked the absence of any tangible evidence that the decision-making in the applicants’ case had been politicised (see paragraph 179 above), the Court cannot but find otherwise. In the Court’s view, having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, there is prima facie evidence of politics being involved in the applicants’ case (see, mutatis mutandis, Baka, cited above, § 148). This is corroborated not only by I.R.’s own admission (see paragraphs 61 and 110 above), but also by the numerous documents submitted by the applicants which refer to a widespread political onslaught against the first applicant so that he would “desist” (see paragraph 171 above) from his efforts to be reunited with his daughter in Germany. These include not only articles in the Lithuanian media, official documents published on various Lithuanian Government Internet sites, but also texts adopted by the European Union institutions (see paragraphs 80, 81 and 83 ‑ 86 above).",
"The Court further notes that I.R. ran for election to the Seimas the same year on the list of a political party whose member – the Chairman of the Seimas Committee on Human Rights – had been supporting her throughout the proceedings for the second applicant’s return (see paragraph 50 above). The Court also points out that support for I.R. came from across the political spectrum of the Seimas, since parliamentarians belonging to different political parties expressed their support for I.R. That being so, and noting that the first applicant in any case had raised the matter of his daughter’s return with the Lithuanian courts as well as with other Lithuanian institutions, and, this being futile, also brought the matter to the attention of the European Commission, the Court does not reasonably see how else he could have effectively defended his right to respect for his family life. Accordingly, the Government’s objection of non-exhaustion of domestic remedies (see paragraphs 155 and 164 above) must be dismissed.",
"211. The foregoing findings demonstrate that, with the exception of the President of the Republic (see paragraphs 40, 111 and 202 above), the Lithuanian authorities ‒ and this includes politicians, child care officials, and prosecutors ‒ failed to ensure fair decision-making in the applicants’ case in the phase of execution of the Court of Appeal judgment of 15 March 2007, and their actions may be taken as suggesting that they did not even care about appearances. It goes without saying that their efforts, aimed at creating a negative atmosphere around the legal actions of the first applicant and constituting direct attempts to interfere in those proceedings, were unacceptable in a system based on the rule of law. The Court also finds that those activities undoubtedly alerted the judges and other officials that their steps in the applicants’ proceedings were being closely monitored, which it finds particularly worrying (see, mutatis mutandis, Kinský v. the Czech Republic, no. 42856/06, §§ 95 and 98, 9 February 2012). The Court also considers that, by attempting to make Lithuania “the State of refuge” (see points 11-15 of the Pérez-Vera Report, cited in paragraph 147 above), those authorities misled I.R. by nourishing her hopes and thus making her situation, and that of the two applicants, much more severe (see paragraph 174 above). On this last point the Court notes that, as stated by the applicants, after the second applicant’s return to Germany and over a period of time, normal communication between the child and both of her parents had been restored with the help of the German authorities (see paragraph 177 above). This statement is also supported by the German authorities’ findings (see paragraph 125 above).",
"212. In the light of the foregoing and applying its standard of proof (see paragraph 196 above), the Court concludes that the Lithuanian authorities did not ensure the fair decision-making process in the applicants’ case in the phase of execution of the Court of Appeal judgment of 15 March 2007 that was indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention (see, mutatis mutandis, Yordanova and Others v. Bulgaria, no. 25446/06, § 137, 24 April 2012, and Iosub Caras v. Romania, no. 7198/04, § 41 in limine, 27 July 2006).",
"(c) The overall length of the decision-making procedure in the applicants’ case",
"(i) The decision-making in the civil courts",
"213. Apart from the requirement of due examination, the cases under the Hague Convention also require urgent handling, as the passage of time can have irremediable consequences for relations between children and a parent who does not live with them (see Iosub Caras, cited above, § 38). The delays in the procedure alone may enable the Court to conclude that the authorities did not comply with their positive obligations under the Convention (see, for example, Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011).",
"214. In the present case, the first applicant asked the Lithuanian authorities to return the child on 30 October 2006 (see paragraph 14 above). The Court has already acknowledged that up until 15 March 2007 the length of proceedings before the Klaipėda Regional Court and the Court of Appeal could be seen as reasonable, given the questions those two courts had to examine (see paragraph 194 above). In the circumstances of this case, and taking into account the actions of the bailiff who attempted to execute the Court of Appeal decision for the second applicant’s return, the Court is also prepared to accept that, until he was prevented by the President of the Supreme Court on 22 October 2007 (who unilaterally adopted a ruling suspending the execution of the Court of Appeal decision of 15 March 2007; see paragraphs 34 and 73 above), the bailiff acted in the two applicants’ interests with the requisite diligence (see paragraphs 28-31 above). The Court also notes that when attempting to execute the Court of Appeal’s decision for the second applicant’s return, the bailiff did not give up in the face of I.R.’s failure to cooperate but instead took the procedural measures which were available to him, announcing a search for I.R., and thus circumventing her avoidance of the return order (see paragraph 29 above; also see point 6.8 of the Guide to Good Practice under the Hague Convention, cited in paragraph 149 above). Indeed, the applicants had no reason to reproach the bailiff (see paragraph 157 above).",
"215. The applicants argued that their reunion pursuant to the provisions of the Hague Convention had subsequently been obstructed by the fervent efforts of I.R., whose obstructive actions not only were not effectively prevented by the Lithuanian authorities but, conversely, received active support through the actions of the Prosecutor General and the Supreme Court, and the latter’s President in particular. In this connection the Court is mindful of the Pérez-Vera Report which highlighted the fact that, in situations such as the one at hand, it is the hope of the person who is responsible for the child’s unlawful removal from or non-return to his or her habitual residence to obtain a right of custody from the authorities of the country to which the child has been taken. It also frequently happens that the person retaining the child tries to obtain a judicial or administrative decision from the State of refuge which would legalise the factual situation which he or she has brought about (see points 11 and 14 of the report, cited in paragraph 147 above). Likewise, as stated by the Advocate General, “a child can have no interest in being dragged from one Member State to another by a parent in the quest for a court which he or she supposes will be the most sympathetic to his or her cause” (see point 88 of the Advocate General’s View, cited in paragraph 99 above). However, it appears that this is precisely what occurred in this case.",
"216. The Court recalls that after consideration of the case by courts at two levels of jurisdiction, I.R. asked the Prosecutor General to apply to the Supreme Court so that the court proceedings which had been terminated by the Court of Appeal decision of 15 March 2007 could be reopened (see paragraph 64 above). Somewhat later, in summer 2007, the Prosecutor General and I.R. personally submitted requests for the court proceedings to be reopened, relying on the reasons that appear to be analogous to those already examined during the first set of proceedings that ended on 15 March 2007. However, the Klaipėda Regional Court refused to accept them for examination and the Court of Appeal upheld that decision, pointing out that its earlier ruling of 15 March 2007 was not amenable to reopening (see paragraphs 65-68 above). It also transpires from the Lithuanian courts’ decisions that the first applicant’s plea that the reopening of civil proceedings for the child’s return would contradict the very essence of the goal set out by Regulation (EC) No. 2201/2003 – namely that such cases should be decided without undue delay (see paragraph 69 above) – was heard, since I.R.’s and the Prosecutor General’s appeals on points of law were later examined and rejected by the Supreme Court, which ruled that no appeal on points of law was possible in proceedings involving a child’s return under Regulation (EC) No. 2201/2003. The Supreme Court also pointed out that its ruling was “final and not amenable to appeal”, and refused to suspend the enforcement proceedings (see paragraph 70 above), the latter fact having been noted by the Advocate General (see paragraph 100 above; point 39 of the View).",
"217. In this context the Court does not overlook the public intervention in October 2007 by the Chairman of the Seimas Committee on Human Rights that the Prosecutor General could ask for a reopening of the proceedings on the grounds that new circumstances had materialised (see paragraph 48 above). That being so, on 22 October 2007 and on the basis of a fresh appeal on points of law by the Prosecutor General ‒ who pointed out that at that moment in time the proceedings regarding the second applicant’s return had been ongoing since the bailiff and the police had effectively taken measures to locate the second applicant and who based his request for suspension on arguments which the Prosecutor General himself saw as merely “theoretical” (see paragraphs 71 and 72 above) ‒ the President of the Supreme Court decided unilaterally to suspend the execution of the final decision of the Court of Appeal (see paragraph 73 above).",
"Bearing in mind the circumstances of this case and contrary to the Government’s suggestion (see paragraph 181 above), the Court does not consider it to be significant whether the request for reopening was lodged directly by I.R. or by the Prosecutor General acting at her request. In the Court’s view, the President of the Supreme Court perceived his powers as allowing him to overrule the Supreme Court’s chamber’s decision on the same issue (see paragraphs 70 and 139 above) and used the opportunity created by those requests to halt the execution of the Court of Appeal decision and then to allow the Supreme Court to re ‑ examine evidence which had already been established by the final and binding decision (see paragraphs 19-21 above; see also Mitrea v. Romania, no. 26105/03, § 29, 29 July 2008).",
"Indeed, although the President of the Supreme Court stated that the subject matter of the appeal on points of law was not the return of the child, the reasons advanced by him when granting the Prosecutor General’s request were related to precisely the circumstances – namely the child’s age, her linguistic abilities, her attachment to the mother and her brother, and Lithuania being the country where she had spent most of her life – which had either already been examined by the Klaipėda Regional Court and Court of Appeal (see paragraphs 17, 19 and 20 above) or had been influenced by the passage of time – as represented by the second applicant’s unlawful stay in Lithuania ‒ a factor which, under the Court’s constant case-law, as well as under international law instruments, must not be allowed to confer any advantage on the abductor (see, for example, Neulinger and Shuruk, cited above, §§ 119 and 140; also see point 1.5.3 of the Guide to Good Practice under the Hague Convention in paragraph 149 above). The Court notes the applicants’ position that the President of the Supreme Court misused his powers in order to help I.R. (see paragraphs 74 and 75 above). In this context the Court observes that in July 2008 the Supreme Court asked the child care authority to provide a fresh report on the second applicant’s situation (see paragraph 104 above). However, this was a matter concerning questions of fact and not those related to the points of law, only the latter falling within the Supreme Court’s competence under domestic law (see paragraphs 136-138 above). Most of this had already been pointed out by the first applicant, who also underscored that the suspension of the court decision for transfer would further aggravate the applicants’ situation, since it meant that they would not see each other, a development which, taking into account the second applicant’s young age, was detrimental to their relationship and placed the child in an intolerable situation (see paragraph 74 above). However, the first applicant’s attempts to challenge the ruling of the President of the Supreme Court, also drawing his attention to the harm that the two applicants’ separation from each other might cause, were futile (see paragraphs 74 and 75 above).",
"218. The Court reiterates its previous findings regarding the politicians’ attempts to help I.R. keep the second applicant in Lithuania by taking steps to amend the Law on the Implementation of EC Regulation No. 2201/2003 in such a way that an appeal on points of law could be permitted in child return cases (see paragraph 208 above). In the circumstances, the Court cannot but agree with the applicants’ view that by using an interlocutory decision to undermine the validity of the main court decision (see paragraphs 19-21 above) the President of the Supreme Court used the reopening procedure as a disguised appeal in order to undermine the res judicata principle (contrast Vilenchik, cited above, § 55), thereby halting the execution of that main court decision.",
"219. The Court observes that a second delay during the Lithuanian court proceedings occurred when the Supreme Court decided to suspend them in order to ask the ECJ for a preliminary ruling (see paragraph 94 above). Given that no doubt had been expressed as to the authenticity of the certificate from the German court and given that (even before the certificate concerning the child’s return was issued) the Lithuanian courts had already duly considered the allegations made by I.R. (see paragraphs 14-24 above, also see Avotiņš, cited above, § 116), once seised, the Lithuanian courts in principle simply had to order the child’s return; to further delay the return only risked causing harm to the child (this was pointed out by the Advocate General, see paragraph 100 above; for the analogous position of the ECJ, see paragraph 102 above). In the Court’s view, the fact that the Supreme Court asked the ECJ to hear the case urgently and the latter applied its accelerated procedure (see paragraphs 95 and 102 above) does not exempt the respondent State from its liability.",
"Indeed, as pointed out by the Advocate General and the ECJ, by that time the proceedings for the second applicant’s return had already been ongoing for nearly two years and the outcome of those successive suspensions had been “totally incompatible with the fundamental aims of the [Hague] Convention and the Regulation” (see paragraphs 100 and 103 above). On the basis of the facts of the case, the Court takes the view that the suspensions that followed I.R.’s applications for the proceedings to be reopened (see paragraphs 76, 78 and 79 above) were particularly aptly dubbed “procedural vagaries” that had not been prevented by the Supreme Court in spite of its duty to act expeditiously (see Article 11 of the Hague Convention, cited in paragraph 145 above; also see, for example, Maire v. Portugal, no. 48206/99, § 74, ECHR 2003 ‑ VII; point 104 of the Pérez-Vera Report cited in paragraph 147 above and paragraph 148 above).",
"The Court finds that those “procedural vagaries” failed to achieve “the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return”, and completely disregarded the fundamental aims of not only the Hague Convention and Regulation (EC) No. 2201/2003 (see §§ 24 and 40 of the Advocate General View cited in paragraph 100 above) but also Article 8 of the Convention. In this context the Court also has regard to the fact that, whilst it took the ECJ less than nine weeks to deliver its preliminary ruling, the Supreme Court afterwards took a further six weeks to terminate the court proceedings regarding I.R.’s and the Prosecutor General’s request for reopening (see paragraphs 102 and 106 above).",
"220. To make matters worse, the two applicants’ hardship in Lithuania continued even after the ECJ’s preliminary ruling and the Supreme Court’s rulings of 25 August 2008. The Court turns to the next point argued by the Government, namely that on 20 October 2008 the first applicant had taken the second applicant with him “in a drastic way” (see paragraphs 112 and 183 above). The Court observes, however, that the first applicant, who by that time had sole rights of custody over the second applicant (see paragraph 92 above), had in fact arrived in Lithuania as early as 24 September 2008. He had not only liaised with the bailiff over the transfer (see paragraph 112 above) but had also been in contact with the child care authorities and psychologists, and had sought to communicate with the child, in order to avoid having the court decision executed by force (see paragraphs 120 in limine, 121, 122 and 127 above).",
"As testified by the first applicant during the criminal proceedings, upon his arrival in Lithuania in September 2008 his contact with his daughter had been either limited or had taken place in the presence of I.R., who had been hostile to him (see paragraph 121 above). This fact was supported by the director of the Klaipėda Pedagogical Psychological Service, who testified that at that time I.R. not only did not wish to reach any compromise but was determined only to fight and to “go until the end”. The director also testified having heard comments that I.R. was about “to harm herself and the [the second applicant]” (see paragraph 120 in fine above); this fear had also been shared by the first applicant (see paragraph 121 above). Given the background as to how the case had been handled in Lithuania up to that point, the Court understands the first applicant’s statement that he thought he would have had to wait a number of years to be reunited with his daughter if he had not acted as he did (see paragraph 114 above).",
"In this context the Court also points to the facts established during the criminal proceedings when I.R. had herself acknowledged that she had not been preparing the child for her return to Germany and that she had been prepared to “fight until the end” (see paragraph 123 above). She had also asserted not having “laid down [her] weapons” (see paragraph 110 above), notwithstanding that 20 October 2008 was the date set for the child’s transfer by the bailiff (see paragraph 127 above). The Court also notes that the first applicant’s fears that the court decisions ‒ even those reached in Lithuania by the Supreme Court on 25 August 2008 ‒ did not provide a sufficiently sound basis for him to be reunited with his daughter in Germany, which could be illustrated, inter alia, by the fact that the Chairman of the Seimas Committee on Human Rights suggested that I.R. had been “a mother beyond reproach” and that the first applicant should move to Lithuania (see paragraphs 63 and 205 above), and this despite the fact that he had already been vilified and demonized there (see paragraph 80 above). The Court observes that it was in these circumstances that the first applicant had acted in an extemporaneous fashion and taken the second applicant away with him (see paragraphs 112 and 113 above). The Court notes that, although the first applicant had sole custody rights in respect of the second applicant, after taking her with him to Germany he was pursued by Lithuanian police officers and I.R. (see paragraph 114 above), and also had to face criminal proceedings in Lithuania, during which certain coercive measures – such as the European Arrest Warrant – were ordered against him by the Lithuanian authorities (see paragraph 116 above). All this was on the basis of the Lithuanian prosecutor’s understanding that by taking the second applicant with him to Germany the first applicant had breached I.R.’s rights, even though she had no custody rights in respect of her daughter at that time (see paragraph 92 above). A month later the decision to detain the first applicant was quashed by the Klaipėda Regional Court (see paragraph 117 above) and one year later the Lithuanian prosecutor discontinued the proceedings by observing the German and Lithuanian courts’ decisions regarding the applicants’ right to be reunited and stating that the first applicant’s actions did not amount to a crime (see paragraphs 125-129 above). Even so, the Court does not need to take a position on the first applicant’s actions on 20 October 2008 and related subsequent developments (see paragraphs 112 and 113 above).",
"(ii) Final observations",
"221. Lastly, the Court is satisfied that, as it transpires from the psychological report procured in Germany and quoted by the Lithuanian prosecutor, the second applicant’s separation from her mother, except for the normal reaction of sadness caused by separation from a parent, did not have any long-lasting impact (see paragraph 125 above). As noted by the applicants in their observations to the Court, the second applicant led a fulfilling life in Germany and because of her “self-moderation”, I.R. was also able to move to Germany and to share in her daughter’s life, having left her son, who by that time was a grown-up, in Klaipėda, with whom she has regular contact (see paragraph 177 above). It is not for the Court to speculate on whether this fact alone refutes the arguments employed by I.R. during the court proceedings held in Lithuania between 2006 and 2008, as the two applicants have suggested. Even so, the Court gives certain weight to the applicants’ submission that this “self ‑ moderation” on the part of I.R. would hardly have been possible during the years when the Lithuanian authorities, both political and legal, demonstrated persistent support to her and even misled her about the possibility of retaining the second applicant in Lithuania, and regardless of the German and Lithuanian court decisions and Lithuania’s international obligations (see paragraphs 197-208 above, also see Avotiņš, cited above, §§ 46-49).",
"(iii) Conclusion as to overall length of the decision-making in the applicants’ case",
"222. In the light of the above the Court finds that the time it took for the Lithuanian courts to reach the final decision in the applicants’ case failed to respond to the urgency of their situation.",
"(d) General conclusion as to the alleged violation of Article 8",
"223. The foregoing considerations are sufficient to enable the Court to conclude that, whilst the initial decision-making of the applicant’s case by the domestic courts met the requirements of Article 8 of the Convention (see paragraph 194 in fine above), the later conduct of the Lithuanian authorities, including political interference into what was a pending court case, as well as the manner in which the case was subsequently handled by the domestic courts and other authorities, fell short of what was required from the State under that provision.",
"There has accordingly been a violation of Article 8 of the Convention in respect of both applicants.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"224. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"225. The applicants claimed to have suffered grave hardship not only because of the Lithuanian authorities’ failure to arrange their reunion despite the clear decisions of the German courts, but also because of massive public, media-related, country-wide hostility, including public humiliation by high-ranking politicians and State officials, aimed at the first applicant. The applicants therefore considered that they were eligible for compensation in respect of non-pecuniary damage, but left the amount to the Court’s discretion.",
"226. The applicants also claimed a sum of 35,997 euros (EUR) in respect of pecuniary damage, this being the amount which the first applicant had had to pay to a bank by way of interest on a loan he had taken out for the purposes of building a house. The first applicant implied that he would not have had to pay that interest if the court proceedings in Lithuania had not compelled him to spend money on lawyers.",
"227. The Government did not wish to speculate on what amount of compensation for non-pecuniary damage would be fair in the applicants’ case. Even so, they considered that, as the outcome of the situation, “was in the applicants’ favour”, the finding of a violation in itself would be sufficient.",
"228. The Government disputed the applicants’ claim for pecuniary damage as unjustified.",
"229. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. However, the Court considers that the applicants suffered distress as a result of the impossibility of enjoying each other’s company for a significant period of time which was caused by a particularly serious violation of their right to respect for their family life. Making an assessment on an equitable basis as required by Article 41, the Court awards the applicants jointly EUR 30,000 under this head.",
"B. Costs and expenses",
"230. The applicants sought EUR 76,089 which the first applicant had had to pay for the services of German and Lithuanian lawyers during the Lithuanian domestic court proceedings concerning the second applicant’s return, including the examination of the matter before the ECJ and the criminal case against the first applicant in Lithuania. The applicants also pointed out that, because of the complexity of the case, cooperation between German and Lithuanian lawyers had been essential and the first applicant could therefore not be accused of having been excessive in retaining their services. The applicants noted that in Lithuania alone, thirty-four lawsuits had been conducted concerning the return of the second applicant. Those included not only the actual return request, but also numerous proceedings regarding the suspension of those proceedings, measures undertaken by the bailiff, and criminal law measures. The applicants provided bills submitted by those lawyers, including detailed particulars as to their hourly fees, the number of hours worked, and explanations as to which procedural actions were involved and on which date the lawyers’ fees had to be paid. In addition, the first applicant claimed EUR 722 that he had had to pay for the psychological expert opinion and legal literature in Germany.",
"231. The applicants also submitted proof of having incurred expenses of EUR 1,806 for translation costs, EUR 2,335 for the first applicant’s travel expenses from Germany to Lithuania, and EUR 1,005 for hotel accommodation in Lithuania during the court proceedings, as well as EUR 348 for postal and communication expenses.",
"Lastly, the applicants also claimed the sum of EUR 10,925 which the first applicant had incurred in connection with the proceedings before the Court, and which he had had to pay to the German lawyer. The applicants provided a bill from their German lawyer, which included an hourly breakdown of those costs.",
"232. The Government firstly submitted that they were not convinced of the necessity of what were, in their view, very high legal costs in respect of the domestic proceedings. They considered that both the German and the Lithuanian lawyers’ claims for their services, including consultations and research work were exaggerated. They also dismissed the documents detailing the lawyers’ fees as not specific enough. Likewise, the Government disputed the applicants’ remaining claims for the costs and expenses which the first applicant had incurred during the domestic courts’ proceedings as being unsupported by evidence and excessive.",
"233. The Government further disputed the applicants’ claim for legal costs in the proceedings before the Court as being insufficiently proven by evidence and disproportionate.",
"234. The Court points out that it has already held that the use of more than one lawyer may sometimes be justified by the importance of the issues raised in a case (compare and contrast Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 56, ECHR 2000 ‑ XI, with further references). The Court cannot neglect the particularly complex nature of this case, the exceptional nature of which was also acknowledged by the Government (see paragraph 179 above), and it therefore accepts that it was necessary for the first applicant to engage the services of all those lawyers specialising in private international, European Union and Lithuanian civil and criminal law who represented the first applicant before the Lithuanian civil courts and the European Court of Justice, and who also assisted him with regard to the criminal proceedings opened against him in Lithuania. The Court does not regard the sum of EUR 10,925 for the services of the applicant’s German lawyer with regard to the proceedings before the Court as excessive (see, for example, Koch v. Germany, no. 497/09, §§ 92-94, 19 July 2012). That being so, and in the light of the documents in its possession, the Court grants the applicants jointly a sum of EUR 76,089 and EUR 10,925 for the legal costs in the domestic and Court proceedings. The Court also awards the applicants EUR 6,216 in respect of the remaining costs and expenses.",
"C. Default interest",
"235. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
53 | Neulinger and Shuruk v. Switzerland | 6 July 2010 (Grand Chamber) | The first applicant, a Swiss national, settled in Israel, where she got married and the couple had a son. When she feared that the child (the second applicant) would be taken by his father to an ultra-orthodox community abroad, known for its zealous proselytising, the Tel Aviv Family Court imposed a ban on the child’s removal from Israel until he attained his majority. The first applicant was awarded temporary custody, and parental authority was to be exercised by both parents jointly. The father’s access rights were subsequently restricted on account of his threatening behaviour. The parents divorced and the first applicant secretly left Israel for Switzerland with her son. At last instance, the Swiss Federal Court ordered the first applicant to return the child to Israel. | The Court held that there would be a violation of Article 8 of the Convention in respect of the two applicants if the decision ordering the child’s return to Israel were to be enforced. It was in particular not convinced that it would be in the child’s best interests for him to return to Israel. He was indeed a Swiss national and had settled very well in the country where he had been living continuously for about four years. Even though he was at an age (seven years old) where he still had a significant capacity for adaptation, the fact of being uprooted again would probably have serious consequences for him and had to be weighed against any benefit that he was likely to gain from it. In this connection, it was noteworthy that restrictions had been imposed on the father’s right of access before the child’s abduction. Moreover, the father had remarried twice since then and was now a father again but had failed to pay maintenance for his daughter. As to the mother, the Court further considered that she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return to Israel. | International child abductions | Applications lodged by the abducting parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"15. The applicants were born in 1959 and 2003 respectively and live in Lausanne (Canton of Vaud).",
"16. The facts as submitted by the parties may be summarised as follows.",
"17. The first applicant, who refers to herself as Jewish, decided to settle in Israel in 1999. There she met an Israeli national, who is also Jewish, and they were married on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality.",
"18. According to the applicants, in the autumn of 2003 the child’s father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising.",
"19. Marital difficulties then arose, and the first applicant, fearing that her husband would take their son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam’s removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime.",
"20. In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents.",
"21. In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant’s custody of the child and granted a right of visitation to the father.",
"22. On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. The letter they sent to the parents read as follows:",
"“1. We take the view that to maintain a common home and live, as you have been doing, under the same roof is not in the child’s interest – and that is an understatement. It appears to us that the environment of constant recrimination and invective created by Shai against Isabelle has caused her permanent stress that may prevent her from fulfilling her role as a mother, when she is already faced with the need to find a job in order to support herself and pay the rent. It should be noted that Shai pays neither the maintenance ordered by the court nor the rent.",
"We felt that some of Shai’s recriminations verged on the absurd. He has decided that the child’s illness, like the glandular fever and the epileptic fit that the child has suffered, are the mother’s fault. Shai persists in asserting that Isabelle ‘is not a good mother’; he does not accept the fact that the child attends nursery school, and claims that the medical certificates are insufficient. We advise Shai to speak to the doctors who are treating the child.",
"Although he is maintained by Isabelle, Shai demands that the food complies to a very strict degree with Jewish dietary laws, observing one dietary rule or another ...",
"There is no doubt that living apart will resolve some of these problems.",
"We find that Shai creates a hostile environment at home – an atmosphere of verbal aggression and threats that terrorise the mother.",
"In the light of the foregoing, we cannot but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child.",
"2. Under the powers conferred on us by sections 19 and 68 of the Law on legal capacity, we reiterate our warning to Shai, calling on him not to take his child with him to engage in religious proselytising on the public highway, where he encourages passers-by to put on phylacteries and collects donations.",
"Likewise, the father is requested not to take the child with him to the synagogue for a whole day at a time.",
"We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities, and not for other purposes.”",
"23. That same day, the first applicant filed a complaint with the police accusing her husband of assault.",
"24. In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child’s nursery school or the first applicant’s flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the access right granted to the father, who was now authorised to see the child only twice a week under the supervision of the social services at a contact centre in Tel Aviv.",
"25. The couple’s divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship.",
"26. As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005.",
"27. In a decision of 27 March 2005, a judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel. The judge found, in particular, that there was a serious risk that the mother would not return to Israel with the child after visiting her family abroad, in view of the fact that she had no ties in that country.",
"28. On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son.",
"29. On 27 June 2005 Noam’s father contacted the Israeli Central Authority, which was unable to locate the child until 21 May 2006, when Interpol Jerusalem forwarded him a note from Interpol Berne indicating that the first applicant was in Switzerland.",
"30. On 22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss Federal Office of Justice an application for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”; see paragraph 57 below). In support of its application it indicated, among other things, that Interpol Berne had notified it only the day before that Noam and his mother were living in Lausanne and that the latter had applied for the renewal of her Swiss passport.",
"31. In a decision of 30 May 2006, delivered upon an application by the child’s father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that, as of 24 June 2005, the date of the applicants’ departure, the parents had been joint guardians of their son, with the mother having temporary custody and the father a right of access. The court held that the child’s removal from Israel without the father’s consent had been wrongful within the meaning of Article 3 of the Hague Convention.",
"32. On 8 June 2006 the child’s father lodged an application with the Lausanne District Justice of the Peace seeking an order for his son’s return to Israel. He requested in particular, as an extremely urgent measure, that the Lausanne Passport Office be ordered to retain the applicants’ Swiss passports.",
"33. On 12 June 2006 the Justice of the Peace made an order allowing the application by Noam’s father for an extremely urgent measure.",
"34. Following a new application for an extremely urgent measure, faxed by the child’s father on 27 June 2006, the Justice of the Peace, in a provisional-measures order made that same day, ordered the first applicant to deposit her passport and that of Noam immediately with the court registry of the Justice of the Peace, on pain of criminal sanctions for refusal to comply with the decision of an authority.",
"35. The first applicant, assisted by counsel, and the legal representative of the father, whose obligation to appear in person had been waived, made representations to the Justice of the Peace on 18 July 2006.",
"36. In a decision of 29 August 2006, after a hearing, the father’s application was dismissed by the Lausanne District Justice of the Peace. The court took the view that, whilst the child’s removal had been wrongful within the meaning of Article 3 of the Hague Convention, it had to apply Article 13, sub-paragraph (b), of that Convention, as there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.",
"37. On 25 September 2006 the father appealed against that decision before the Guardianship Division ( chambre des tutelles ) of the Vaud Cantonal Court, which ordered an expert’s report and for that purpose appointed Dr B., a paediatrician and child psychiatrist. In his report, delivered on 16 April 2007, he stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their potential repercussions for the child; that the return of the child without his mother would expose him to a risk of major psychological harm; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term.",
"38. On 30 November 2006 the competent court in Tel Aviv cancelled an indictment for domestic violence that the second wife of Noam’s father had initiated, as she had left the country.",
"39. In a letter of 12 March 2007, in connection with the proceedings to secure the child’s return, the Israeli Central Authority made the following observations to its Swiss counterpart:",
"“We acknowledge receipt of your letter dated 7 February 2007. We wish to respond to the questions raised in that letter as follows:",
"Mr Shuruk states that in the event that the mother refuses to return to Israel, he will take care of the child. He currently lives in an apartment with a roommate, however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he would need assistance from time to time.",
"The Appeal Court in Switzerland has raised a concern as to how Mr Shuruk can care for the child when his right of access has been restricted. As we stated in our letter to your office dated 28 September 2006, it must be remembered that according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits, however these plans were interrupted as a result of the mother’s abduction of the child. If the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality.",
"You further asked what steps could be taken to protect the mother should she return, given her allegations of violence on the part of Mr Shuruk. Mr Shuruk denies all such allegations. Furthermore, we are attaching a copy of the decision of the Tel Aviv Magistrate’s Court dated 30 November 2006, together with a translation into English. This decision concerned an indictment filed against Mr Shuruk for allegations of assault by his second wife. As you can see, the complainant apparently left Israel and could not be located, therefore the court cancelled the indictment against Mr Shuruk.",
"In any event, we wish to draw your attention to the law in Israel that provides protection in cases of allegations of family violence; that law is the Prevention of Family Violence Law 1991. We are attaching a translation of that law into English, and an unofficial translation into French. Section 2 provides for protection orders that can be made. Therefore, if the mother has any concerns for her safety, she can apply to the court in Israel and request any necessary protection. Her allegations should not constitute a basis for the Swiss court to refuse to return the child to Israel.",
"You informed us that the court ordered a psychological evaluation of the child. We must express our concern in this respect. Such evaluation was not ordered by the lower court, and we wish to inquire as to why it has been ordered at this late stage. It must be remembered that the child was abducted by the mother in June 2005. The child has not seen his father in almost two years. During this period he has been subject to the sole influence of the mother. We therefore question what can be gained by a psychological evaluation of the child. It must be remembered that this is a Hague Convention proceeding, and not a custody case. It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to Israel. However this can be avoided if the mother will act in the child’s best interests and return with him. As we stated in our letter of 28 September 2006, the mother does not appear to have any justifiable reason under the Hague Convention to prevent her return ...”",
"40. In a letter of 30 April 2007 to the lawyer acting for Noam’s father, the Israeli Central Authority made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to Israel:",
"“... You have requested that we inform you as to the legal consequences that would face the mother, Isabelle Neulinger, should she return to Israel with the child, as a result of the act of abduction of the child.",
"In terms of criminal consequences for the act of abduction, abduction is an offence under Israel’s Penal Law 1977 and carries a possible penalty of imprisonment. However, according to the guidelines of the State Attorney of Israel, upon receipt of a criminal complaint of parental abduction, the police are to forward the matter to the Central Authority under the Hague Convention for guidelines as to how to proceed in the matter. The State Attorney’s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances. In Ms Neulinger’s case, should she comply with an order to return the child to Israel, not disappear with the child upon her arrival to Israel, cooperate with the Israeli authorities and comply with the existing court order for supervised visitation by Mr Shuruk (pending any further decision), the Central Authority for Israel would positively consider instructing the Israel Police to close the criminal file for lack of public interest, provided that Ms Neulinger not commit further acts of abjection with respect to the child.",
"In terms of civil consequences, we can inform you that the sole consideration in both the Israeli civil courts and Rabbinical courts, when deciding matters such as custody and access, is the best interests of the child ...”",
"41. In a judgment of 22 May 2007, the Guardianship Division of the Vaud Cantonal Court dismissed the father’s appeal. Having carried out an additional investigation, and taking into account the expert’s report by Dr B. of 16 April 2007, it took the view that the child’s return carried a grave risk of psychological harm, whether or not he was accompanied by his mother, and would also place him in an intolerable situation. It therefore considered that the conditions of Article 13, sub-paragraph (b), of the Hague Convention were met. Finding, however, that the child could not be deprived of all relations with his father, it prescribed measures with a view to rebuilding the personal relationship between them. Its judgment read as follows:",
"“4. (d) ... In response to the questions put to him, expert B. ... states in his conclusions that Noam’s return to Israel with his mother would expose him to psychological harm, the intensity of which cannot be assessed without knowledge of the conditions of such return, in particular those awaiting his mother and the repercussions which they might have on the child; as regards the child’s return to Israel without his mother, [the expert] is of the opinion that it would expose him to major psychological harm, as described in detail in the report. In the ‘discussion’ part of his report the expert emphasises that Noam’s situation seems at present to be completely blocked. On the one hand, given his young age and his complete lack of recollection of his first years in Israel, including of his father, any visit to that country without his mother, even a brief visit, and even if the legal situation allowed it, would be psychologically highly traumatic, involving extreme separation-related anxiety and a major risk of severe depression. On the other hand, the possibility of the mother’s return to Israel with Noam, even for a short period, is totally out of the question for the mother. In answer to the question whether Noam’s return to Israel might place the child in an intolerable situation, the expert replied that it was ‘clearly’ the conditions of the child’s possible return to Israel that would or would not render the situation intolerable. He observed that, likewise, it was the conditions of his continuing residence in Switzerland that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long-term major psychological risk for the child, with the result that, if there were no understanding between his parents, an agreement would urgently be required between the child protection services of the States of the parents’ residence in order to make up for their failure to act.",
"In accordance with Article 13, third paragraph, of the Hague Convention, this court also requested the Israeli Central Authority to provide information about the child’s social background, by answering the following questions: ‘in the event that, as she has stated, the mother does not return to Israel, who will take care of the child and where will he stay? As the father does not appear to be in gainful employment, who will provide for the child’s upkeep? As the right of access has been restricted by judicial decisions, what measures will be taken to ensure that the exercise of the right of access does not harm the child’s physical and psychological welfare?’ In its letter of 12 March 2007 the Israeli Central Authority did not really answer the questions put to it, so it is impossible to be satisfied about the interests of the child. The Central Authority merely mentioned the appellant’s intentions concerning his son if his son should return to Israel without his mother, in the following terms: ‘[I]n the event that Noam’s mother refuses to return to Israel, the father will take care of the child. He currently lives in an apartment with a roommate; however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he needs assistance from time to time.’ As to the issue of how Shai Shuruk would be able to take care of the child, given that he has only a restricted right of access, the Israeli Central Authority emphasised: ‘As we stated in our findings of 28 September 2006, according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits; however these plans were interrupted as a result of the mother’s abduction of the child.’ The Israeli Central Authority concluded that ‘[i]f the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality’.",
"It should be noted that neither the conclusions of the child psychiatrist’s report nor the information provided by the Israeli Central Authority are conducive to Noam’s return to Israel. Not only would such a return entail a grave risk of exposure to psychological harm, whether or not he is accompanied by his mother, it would also place him again in an intolerable situation. Firstly, the psychiatric expert observes that if the child returns to Israel with his mother, he will risk being exposed to psychological harm whose intensity cannot be assessed without knowledge of the conditions of that return. In that connection, the Guardianship Division is of the opinion that, since the child’s removal to Israel, even if his mother accompanies him, may expose the child to psychological harm and since, unlike the ‘classic scenario’ envisaged by the Hague Convention, the respondent has custody of her son, she cannot reasonably be required to return to Israel. An additional factor is that the mother’s return to Israel would also undermine the child’s economic security, since the mother would be required to find a job there, in order to provide not only for her own needs but also for those of her son. The fact that the appellant has never provided for his child’s upkeep and that he is known to earn only 300 [Swiss] francs per month cannot be disregarded when the interests of the child are taken into consideration in that context. Lastly, it must be considered that the requirement of the mother’s return is disproportionate to the reason for the return: the object of the Hague Convention is to put the child back into the legal situation in which he was before he was abducted. However, the present return is requested in order to allow the appellant to exercise his right to a personal relationship, a right which is shown to have been exercised before the child’s departure under the supervision of the social services in the form of two weekly meetings of two hours each. To require a mother to uproot herself in order to permit the exercise of such a restricted right of access, when the child’s return certainly entails a risk of grave psychological harm, in view of the conditions of insecurity in which the return will take place, constitutes an intolerable situation for the child within the meaning of Article 13, sub-paragraph (b), of the Hague Convention.",
"As to Noam’s return to Israel without his mother, the expert is of the opinion that it would be psychologically highly traumatic, involving extreme separation anxiety and a major risk of severe depression, which can be explained by his young age and his total lack of recollection of his first years in Israel, including of his father. That element is sufficient for a finding that the condition laid down in Article 13, sub-paragraph (b), is satisfied. In addition, the information provided by the Israeli Central Authority about the arrangements envisaged in the event that the child returns without his mother are, at the very least, a matter for concern: although the appellant has, legally speaking, only a very restricted right of access, under supervision, it is envisaged, according to the information provided by the Central Authority, that the appellant will take his son home (without any guarantee that he will by then have an individual flat) and will thus have de facto custody. In that connection, the Israeli Central Authority claims that by refusing to return to Israel with her son, the respondent is implicitly acquiescing in that change of situation – a new reality of which the appellant will then seek validation by the Israeli judicial authorities. That does not correspond to the aim pursued by the Hague Convention, which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante. Such a return cannot therefore be ordered on the basis of the Hague Convention, and it is emphasised that there is no doubt that Noam’s return to Israel in such circumstances would definitely expose him to a risk of major psychological harm, owing not only to the fact that he would be abruptly separated from his mother, when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep, but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt. In the light of the foregoing, the appeal on this point must be dismissed. ...",
"5. ... In the present case, it is apparent from the file that Noam Shuruk has lived with his mother, who has custody of him, for at least one year in Lausanne. Thus, the Justice of the Peace of the District of Lausanne had jurisdiction, ratione loci and ratione materiae, to take the disputed protective measure. As to the merits, it is sufficient to state that, since the child has no recollection of his father, owing to the process of physiological amnesia attributable to his very young age, there are valid grounds for avoiding an abrupt reunion, as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually, after he has been properly prepared for that new situation, as may be seen from the expert’s convincing submissions on that point. The ground of appeal is therefore ill-founded and must be rejected ...”",
"42. The father lodged a civil appeal with the Federal Court seeking the quashing of the Cantonal Court’s judgment and the return of the child to Israel. He alleged that the court had misapplied Article 13, sub-paragraph (b), of the Hague Convention, principally, and Article 3 of the United Nations Convention on the Rights of the Child, secondarily.",
"43. In a decision of 27 June 2007, the President of the appropriate division of the Federal Court granted the father’s request for immediate suspension of the judgment.",
"44. In a judgment of 16 August 2007, served on the first applicant’s lawyer on 21 September 2007, the Federal Court allowed the father’s appeal. The relevant passages of its judgment read as follows:",
"“3. The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Article 1, sub-paragraph (a)). The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, sub-paragraph (a)). ‘Rights of custody’ include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5 (a)). In the present case it is not in dispute that the child’s removal to Switzerland was wrongful, since the father retained, jointly with the respondent, the right of ‘guardianship’, which under Israeli law includes the right to decide on the child’s residence. Moreover, since the application for return was presented within a period of one year after the removal, the respondent cannot deny either that, in principle, pursuant to Article 12 of the Hague Convention, the child’s prompt return should be ordered. The only matter in dispute is therefore the question whether an exception to that return may be applied under Article 13, sub-paragraph (b), of the Hague Convention.",
"4. According to the appellant, by refusing to order the child’s return to Israel, the Cantonal Court misapplied Article 13, sub-paragraph (b), of the Hague Convention.",
"4.1 Under Article 13, sub-paragraph (b), of the Hague Convention, in respect of which the Federal Court is entitled to examine matters of compliance freely (section 95(b) of the Federal Court Act), the judicial authority of the requested State is not bound to order the child’s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The exceptions to return provided for under Article 13 of the Hague Convention must be interpreted restrictively; the parent who has abducted the child cannot take advantage of his or her unlawful conduct (judgment 5P.71/2003 of 27 March 2003, recital 2.2, in FamPra.ch 2003, p. 718). Only grave risks must be taken into consideration, excluding any grounds relating to the parents’ child-rearing capacities, as the purpose of the Hague Convention is not to attribute parental authority (Federal Court judgment 131 III 334, recital 5.3; 123 II 419, recital 2b, p. 425). An exception to return under Article 13, sub-paragraph (b), of the Hague Convention, is therefore not open to consideration unless the child’s intellectual, physical, moral or social development is under serious threat (judgment 5P.65/2002 of 11 April 2002, recital 4c/bb, in FamPra.ch 2002, p. 620 and the reference cited therein). The burden of proof lies with the person who opposes the child’s return (ibid., recital 4b, in FamPra.ch 2002, p. 620 and the reference cited therein).",
"4.2 The Cantonal Court observed that the case concerned a very young child in the custody of his mother, who had always provided for him. The father, for his part, lived in a religious community where he was fed, and from his activity as a sports and art teacher he had a monthly income of only 300 [Swiss] francs. The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home. For the same reason, the Israeli courts ordered him to live separately and prohibited him from approaching the mother’s flat. Before the child’s removal to Switzerland he had only had a restricted right of visitation, limited to two hours twice a week, under the supervision of the Israeli social services. Concerning the conditions of a possible return of the child without his mother, according to the information provided by the Israeli Ministry of Justice on 12 March 2007, the father, who now shares a flat with one other tenant and still works in an institution for religious education, would be prepared to take care of the child. Taking into account the laconic and not very reassuring nature of this information, together with the expert’s report by Dr ..., a psychiatrist, the Cantonal Court considered that a return to Israel involved a risk of psychological harm for the child and might place him in an intolerable situation, whether or not he was accompanied by his mother. The court added that, in view of the father’s low income, the return to Israel of the respondent would also undermine the child’s economic stability and the mother would have to find a job in order to provide for them both.",
"In his appeal, the appellant does not criticise the Cantonal Court’s finding that there was a grave risk that the child would be exposed to psychological harm if he returned to Israel without his mother. He is of the opinion, however, that such a risk would not exist if the child’s mother accompanied him to Israel, as could be reasonably expected of her. As regards that latter hypothesis, the judgment of the Cantonal Court fails to provide any evidence of such a grave risk of harm, or of any intolerable situation for the child. The expert psychiatrist failed, in particular, to address that question, simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return. As to the appellant’s aggressive behaviour towards the respondent, it does not appear from the Cantonal Court’s judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother. She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well. The social worker appointed to supervise the right of visitation had described as ‘wonderful’ the father-son relationship as established just before the child’s abduction by his mother. She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her. As to the considerations relating to the father’s low income and his ties with the ‘Lubavitch’ religious community, as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. Whilst such considerations may help to determine which of the two parents offers the best child-rearing capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence (Article 16 of the Hague Convention) – they are not pertinent, however, for a decision about the return of a child after a wrongful abduction (see recital 4.1 above).",
"As to the mother’s threat not to return to Israel, the judgment of the Cantonal Court did not deal at all with the reasons for her refusal, whereas it should have established the existence of objective circumstances justifying that attitude. The Cantonal Court judges quoted the expert psychiatrist who had referred to the ‘judicial risks’ that would be entailed in the event of a return to Israel, without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction. Supposing that such a risk were proven, she could not be expected to return to Israel with the child – and that would accordingly rule out the return of [the child] in view of the major psychological harm that would be caused to him by the separation from his mother. She made no comment on that question in her reply to the Federal Court; in particular, she has not claimed that immediate imprisonment, or even any criminal sanction at all, would be imposed on her. Neither has she argued that in the event of her return to Israel it would be impossible or very difficult for her to integrate, or, in particular, to find a new job. Consequently, it cannot be said that the mother’s return, and therefore that of the child, would be unbearable for economic reasons either. Therefore, as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to Israel, it must be accepted that she could reasonably be expected to return to that State of origin accompanied by the child. In these circumstances, it is of no import that the information provided by the Israeli Central Authority (see recital 4.2 above) on which the Cantonal Court based, in particular, its justification of the exception to the child’s return as provided for by Article 13, sub-paragraph (b), of the Hague Convention, was deemed not very reassuring, because that information was based only on the hypothesis of the child’s return without his mother.",
"Accordingly, the Cantonal Court judges breached Article 13, sub-paragraph (b), of the Hague Convention in finding that they were entitled to apply an exception to the child’s return to the State of his habitual residence. The appeal must therefore be allowed and the judgment of the court below quashed, without it being necessary to examine the complaint concerning a violation of Article 3 of the Convention on the Rights of the Child. It is incumbent on the respondent to secure the return of the child ... to Israel by the end of September 2007. ...",
"The Federal Court therefore finds as follows:",
"1. The appeal is allowed and the judgment of the court below is quashed.",
"2. The respondent is ordered to secure the return of the child ... to Israel by the end of September 2007.",
"...”",
"45. On 20 August 2007 the child’s father, through counsel, lodged an application with the Lausanne District Justice of the Peace, who was responsible for the enforcement of the return decision, seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure. On 1 October 2007 he withdrew that application after the Court had decided, on 27 September 2007, to indicate interim measures to the Government.",
"46. Subsequently, the applicants transmitted to the Court a medical certificate issued on 23 February 2009 by Dr M.-A., a paediatrician in Lausanne, which reads as follows:",
"“I, the undersigned, certify that I have seen the child Noam Shuruk, born on 10 June 2003, on a number of occasions since 7 October 2005.",
"On each occasion Noam has been accompanied by his mother, with whom he has a very good relationship.",
"His behaviour is appropriate and his level of psychomotor development and language are above average. He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies.",
"He is a confident boy, capable of forming good relationships, in particular with adults.",
"He is in good physical health, with little trace of intercurrent infections.",
"An abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for this child.”",
"47. In a provisional-measures order of 29 June 2009 the President of the Lausanne District Court, at the request of the first applicant, decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother, so as to allow her to renew the child’s identity papers. The decision was based on the following grounds in particular:",
"“[I]t is noted that the respondent was summoned to appear by court order served at his last known address in Israel.",
"The letter was returned marked ‘gone away’, which can be translated as ‘ parti sans laisser d’adresse ’ (gone without leaving a forwarding address).",
"... It appears that the mother has custody of the child while parental authority is still held jointly.",
"The father was apparently required to ‘exercise a right of visitation’ under the supervision of the social services ...",
"In the context of the proceedings, the respondent never appeared at the hearings but was represented by counsel, who is apparently no longer acting for his client ...",
"According to case-law, the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken (see Federal Court judgment 125 III 301, Journal des Tribunaux 1999 I 500).",
"In the present case, Noam has been living in Switzerland continuously since June 2005.",
"He attends school there.",
"He has family ties there on his mother’s side.",
"He receives medical attention there.",
"He is also a national of Switzerland,",
"of which he speaks the language, in this case French.",
"Interim measures in favour of the applicant were decided by the European Court of Human Rights, which requested the Swiss Government not to return Noam to Israel in spite of the Federal Court’s decision.",
"Despite his legal battle, the respondent has never sought to see his child,",
"and his place of residence is unknown.",
"He appears to have lost interest in the present case.",
"Consequently, the child now has a stable relationship only with his mother.",
"It is therefore appropriate to allow her application and to decide provisionally that Noam should reside in Lausanne, Switzerland, at the place of his habitual residence, with his mother.",
"Article 273 § 1 of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances.",
"The right to personal relations is intended to preserve the bond between parents and children ...",
"The maintaining and development of this bond is obviously beneficial to the child.",
"Personal relations must accordingly be fostered, unless the child’s welfare is endangered.",
"The scope of personal relations and the manner in which they are carried on should be appropriate to the situation, in other words taking fair account of the particular circumstances of the case.",
"The child’s welfare is the most important assessment criterion (see Federal Court judgment 127 III 295, с 4a).",
"The entitled person’s situation and interests should also be taken into consideration: his or her relationship with the child, personality, place of abode, free time and environment.",
"Special conditions for the exercise of access rights may be imposed ...",
"The applicant has requested the withdrawal of the respondent’s access right in respect of their son Noam.",
"In the circumstances of the case, the respondent’s access right was already limited by decisions given by the Israeli authorities before the child’s departure for Switzerland.",
"The child has not seen his father since 2005.",
"They apparently have no common language.",
"In any event, the resumption of access rights, if requested by the respondent, could only be gradual.",
"The respondent’s place of residence is currently unknown.",
"In the circumstances it appears appropriate to order the provisional suspension of the respondent’s access rights in respect of his son Noam.",
"The applicant requests that ‘parental authority in respect of Noam, born on 10 June 2003, be exclusively and provisionally granted to his mother Isabelle Neulinger in Lausanne for the purposes of renewing his identity papers’.",
"The applicant has explained that her son, who has dual Israeli and Swiss nationality, currently has no identity documents.",
"He had a Swiss passport until recently.",
"However, when it expired the administrative authorities refused to issue him with a new one without the father’s consent, as the parties had joint parental authority in respect of the child.",
"The respondent’s place of abode is currently unknown.",
"The applicant is thus unable to ask him for such consent.",
"The child lives in Switzerland with her,",
"and she has custody of him.",
"The present case, on the merits, admittedly concerns a change in the attribution of parental authority, since the applicant requests that by virtue of Swiss law it be exclusively granted to her.",
"It may appear that the provisional measure requested, if granted, settles the case on the merits.",
"However, the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant’s child.",
"The child is a Swiss national resident in Switzerland.",
"It is therefore necessary for him, like any other citizen, to obtain identity papers.",
"The applicant’s request is therefore granted.",
"...”",
"It does not appear, from the information currently before the Court, that either party to the dispute has appealed against that decision."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Protection of the rights of the child",
"1. United Nations Convention on the Rights of the Child",
"48. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Switzerland on 26 March 1997, read as follows:",
"Preamble",
"“The States Parties to the present Convention,",
"...",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...",
"Have agreed as follows:",
"...”",
"Article 7",
"“1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...”",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...”",
"Article 14",
"“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.",
"2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...”",
"Article 18",
"“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.",
"...”",
"2. Concept of the child’s “best interests”",
"49. The concept of the child’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by the United Nations on 20 November 1959. It provides as follows:",
"“The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”",
"50. The term was used again in 1989 in Article 3 § 1 of the Convention on the Rights of the Child:",
"“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”",
"51. Neither the working group during the drafting of the Convention nor the Committee on the Rights of the Child has developed the concept of the child’s best interests or proposed criteria for their assessment, in general or in relation to specific circumstances. They have both confined themselves to stating that all values and principles of the Convention should be applied to each particular case (see Rachel Hodgkin and Peter Newell (eds.), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children’s Fund 1998, p. 37). In addition, the Committee has emphasised on various occasions that the Convention must be considered as a whole, with the relationship between the various articles being taken into account. Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions (ibid., p. 40).",
"52. The “Guidelines on Determining the Best Interests of the Child” were issued by the United Nations High Commissioner for Refugees (UNHCR). They provide, inter alia :",
"“The term ‘best interests’ broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences.” (UNHCR Guidelines on Determining the Best Interests of the Child, May 2008)",
"53. The principle of “the child’s best interests” is also embodied in Articles 5 and 16 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. Article 5 (b) reads as follows:",
"“States Parties shall take all appropriate measures:",
"...",
"(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.”",
"54. Under Article 16 § 1 (d) of that Convention, States are committed to ensuring the following, with regard to equality between men and women:",
"“[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; [and] in all cases the interests of the children shall be paramount”.",
"55. Even though the principle does not appear in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee in its General Comments Nos. 17 and 19 referred to “the paramount interest” of the child in the event of the separation or divorce of its parents. In its General Comment 17 (adopted at its 35th Session, 1989) the Committee stated that if a marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to guarantee, so far as is possible, personal relations with both parents. For abandoned children, special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment. In its General Comment No. 19 (adopted at its 39th Session, 1990) the Committee indicated that any discriminatory treatment in regard to divorce, child custody, visiting rights, etc., must be prohibited, unless the paramount interest of the child required otherwise.",
"56. The European Union’s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article:",
"Article 24 – The rights of the child",
"“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.",
"2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.",
"3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”",
"B. Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”)",
"1. Text of the instrument",
"57. The relevant provisions of the Hague Convention, which came into force in respect of Switzerland on 1 January 1984, read as follows:",
"“The States signatory to the present Convention,",
"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,",
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,",
"Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:",
"...",
"Article 1",
"The objects of the present Convention are:",
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...",
"Article 3",
"The removal or the retention of a child is to be considered wrongful where:",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 4",
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.",
"Article 5",
"For the purposes of this Convention –",
"(a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;",
"(b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.",
"...",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:",
"...",
"(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.",
"Article 14",
"In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.",
"...",
"Article 20",
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"Article 21",
"An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.",
"The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.",
"The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”",
"2. Consideration of the child’s “best interests” in the context of Article 13, sub-paragraph (b), of the Hague Convention",
"58. The Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Convention states as follows:",
"“... since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any political or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo ...”. (paragraph 16, p. 429)",
"59. However, the Hague Convention contains five exceptions to the principle of the child’s prompt return, among which the most commonly invoked exception is that of Article 13, sub-paragraph (b).",
"60. The French Court of Cassation, the House of Lords and the Finnish Supreme Court have all expressly incorporated the concept of the “child’s best interests” into their application of the exception based on a “serious risk” within the meaning of Article 13, sub-paragraph (b), of the Hague Convention.",
"61. In a case from 2005, the French Court of Cassation stated the following:",
"“... under Article 13, sub-paragraph (b), an exception can be made to the child’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation;”",
"and",
"“by virtue of Article 3 § 1 of the [United Nations] Convention on the Rights of the Child, a provision that is directly applicable before the French courts, such circumstances must be assessed with the child’s best interests as the primary consideration”. (Court of Cassation, First Civil Division, 14 June 2005, appeal no. 04 ‑ 16942)",
"62. That court thus upheld a judgment of the Aix-en-Provence Court of Appeal of 13 May 2004, finding as follows:",
"“... the child’s best interests [had been] taken into consideration by the Court of Appeal, which [had] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under the Hague Convention.”",
"63. The Finnish Supreme Court conducted a similar assessment in applying the exception under Article 13, sub-paragraph (b), indicating as follows:",
"“... the court had pointed out that a grave risk of harm would not exist if the mother returned to France with her children and ensured that their living conditions were adapted according to their best interests ...” ([ 27 December 1996] Supreme Court of Finland 1996:151, S96/2489)",
"64. In a case examined on 16 November 2006 by the House of Lords concerning the abduction of a child from Romania to the United Kingdom, Lord Hope observed:",
"“... it is impossible to believe that the child’s best interests would be served by his return forthwith to Romania.” ( In re D (a child), [2006] UKHL 51, [2007] 1 AC 619)",
"3. The concept of “rights of custody” under the Hague Convention",
"65. Article 5 (a) of the Hague Convention defines custody rights as “rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence”. The Convention recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State in which the child had its habitual residence immediately before removal or retention (Article 3 in fine ). Furthermore, the Explanatory Report on the Convention emphasises the drafters’ intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child:",
"“In terms of Article 3, custody rights may have been awarded to the person who demands that their exercise be respected, and to that person in his own right or jointly. ... Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise” (Explanatory Report by Elisa Pérez-Vera, Acts and Documents of the Fourteenth Session, vol. III, Child Abduction, Hague Conference on Private International Law, paragraph 71, pp. 447-48)",
"66. The drafters of the Convention created an autonomous definition of custody rights quite apart from domestic-law interpretations of that concept. This autonomous nature was confirmed in the “Overall Conclusions of the Special Commission of October 1989 on the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction” (§ 9, p. 3), which stated as follows:",
"“... ‘rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept, and thus such rights are not necessarily coterminous with rights referred to as ‘custody rights’ created by the law of any particular country or jurisdiction thereof. ... [T]he award of what is called ‘custody’ to only one parent under domestic law, does not necessarily mean that all ‘rights of custody’ within the intent of the Hague Convention have been granted to that parent. Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children, and even some English-language systems do not employ the term ‘custody’, it is necessary to look to the content of the rights and not merely to their name.”",
"67. The autonomous meaning of “rights of custody” was further confirmed during the second meeting of the Special Commission when the following conclusion, among others, was adopted:",
"“... the expression ‘rights of custody’ ... does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention.” (Report of the Second Special Commission Meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction held on 18-21 January 1993, p. 4)",
"68. In addition, according to the Explanatory Report, the Convention is engaged only by issues relating to breaches of custody rights. It does not in principle concern situations arising from breaches of access rights, in particular where the child is taken abroad by its custodian (Explanatory Report, paragraph 65).",
"4. Domestic case-law concerning the concept of “rights of custody” within the meaning of the Hague Convention",
"69. The Hague Convention provides no enforcement mechanism or oversight body to ensure that Contracting States implement it. Therefore, it is possible that the case-law of domestic courts relating to the Hague Convention may differ from one Contracting State to another. In practice, there is a lack of consistency in the interpretation of the various judicial bodies as regards the Hague Convention’s distinction between custody rights and access rights, more specifically where they have to decide whether to grant the remedy of return to non-custodial parents who hold access rights.",
"70. However, there seems to be a trend towards a wide interpretation of wrongful removal or retention, thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the Convention’s protection.",
"71. In the case of C. v. C. (England and Wales Court of Appeal; [1989] 1 WLR 654, 657-58), for example, a custodial parent had removed a child from Australia in breach of a restraining order (also called a ne exeat order, prohibiting a child’s removal from a given geographical area). In that case the child could not be removed without the consent of the non-custodial parent. The court found that the Convention’s judicial remedy of return applied. They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “right to determine the child’s place of residence”.",
"72. The Family Court of Australia took the same approach in the case of José García Resina, where a father lodged an application under the Convention for the return of his children after they had been taken to France by their maternal grandparents ( José García Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33). The Australian court considered both a custody order, which gave the father “reasonable access” to the youngest child, and an injunction restraining both the mother and the father from removing the children from Australia. It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father’s custody rights that had been created by the restraining order. Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child ( Foxman v. Foxman, Israeli Supreme Court, 1992). The court thus considered that the father had rights of custody within the meaning of the Convention.",
"73. It appears that other national courts, in particular in common-law countries, have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non-custodial parent before removing the child from a country, a removal without such permission may be regarded as “wrongful” within the meaning of Article 3 of the Hague Convention (see Re F, England and Wales Court of Appeal, [1995] 3 WLR 339, where the father had rights of custody, even though the mother had a court order giving her temporary “care and control” and there was no order barring the child’s removal).",
"74. However, the practice of domestic courts is not homogeneous. Thus, for example, the United States Court of Appeals found that access rights coupled with a ne exeat clause did not constitute “rights of custody” within the meaning of the Hague Convention ( Croll v. Croll, 229 F.3d 133, 143, Second Circuit, 2000).",
"C. Domestic legislation relevant to the implementation at national level of the above-mentioned Conventions",
"1. New Swiss Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults",
"75. On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. The Act came into force on 1 July 2009. The sections of the Act referred to by the applicants read as follows:",
"Section 5: Return and interest of the child",
"“The return of a child places him or her in an intolerable situation, within the meaning of Article 13, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met:",
"(a) placement with the parent who lodged the application is manifestly not in the child’s interests;",
"(b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and",
"(c) placement in the care of a third party is manifestly not in the child’s interests.”",
"Section 6: Protective measures",
"“The court dealing with the application for the return of the child shall decide, as required, on the child’s personal relations with his or her parents and order the measures necessary to ensure his or her protection.",
"Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.”",
"76. In connection with the federal decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” ( Feuille Fédérale 2007, pp. 2433-682), of which the relevant passages read as follows:",
"“ 6.4 Return and interests of the child (section 5)",
"In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, sub-paragraph (b), of the Hague Convention of 1980. The term ‘in particular’ means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention.",
"Firstly, sub-paragraph (a) refers to the situations in which the child’s accommodation by the parent who requested the return is manifestly not in the child’s interests. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child.",
"Sub-paragraph (b) governs cases in which the appropriateness of the child’s return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child’s accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child’s psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio.",
"Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where the child had his or her habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court’s final decision on the granting of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child’s primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child’s interests. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent’s State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, sub-paragraph (b), of the Hague Convention.",
"Sub-paragraph (c) refers to placement with third parties. If the child’s return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child’s return, if placement with a third party is not manifestly contrary to the child’s interests. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio.",
"It must further be noted that, for the return to be compatible with the child’s interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child’s return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child’s reception and protection, in particular when there is some doubt about the requesting parent’s capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.”",
"2. Concepts of “custody” and “guardianship” in Israeli law",
"77. The concept of guardianship is defined in Chapter 2 of the Capacity and Guardianship Law 1962. The term custody is not defined as such but is mentioned.",
"78. Section 14 of that Law provides that “[p]arents shall be the natural guardians of their minor children”. In Israel, parents, whether married, divorced or unmarried, are joint and equal guardians of their children. The term “guardianship” may be regarded as equivalent to “parental authority” in other jurisdictions.",
"79. Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances (where a Magistrate’s Court adopts one of the measures mentioned in section 3(3) or (4) of the Youth (Care and Supervision) Law). This rule is set out in section 27 of the Law.",
"80. Section 15 defines and describes the role of parents in Israeli law and outlines what parental guardianship entails in the following terms:",
"“The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf.”",
"81. Section 17 sets the standard of parents’ duties. It states that in exercising their guardianship, “parents [must] act in the best interests of the minor in such manner as devoted parents would act in the circumstances”.",
"82. There is a general presumption that parents should cooperate in taking decisions relating to their guardianship (section 18). However, where no agreement is reached, they may refer to the court to decide the issue (section 19).",
"83. Section 24 provides that, when parents live apart, they may reach an agreement as to: who is going to have guardianship of the minor, wholly or in part; who is going to have custody of the minor; and what rights the other parent is going to have, in particular as regards contact with the child. Such an agreement is subject to the approval of the court.",
"84. Under section 25, if the parents cannot reach such an agreement these issues may be determined by the court having regard to the best interests of the child.",
"85. Section 25 further creates a presumption of custody in favour of the mother for children under six years old unless there are special reasons for directing otherwise.",
"86. Accordingly both parents share joint decision-making authority regarding their child’s place of residence. One parent cannot remove the child from Israel without the permission of the other parent or of a court. If one parent wishes to remove the child from Israel without the other parent’s consent, then the parent wishing to leave must apply to the Israeli courts for a relocation order and an order for custody of the child.",
"THE LAW",
"I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER",
"87. In their memorial before the Grand Chamber the applicants complained of a violation of their right to respect for their family life within the meaning of Article 8 of the Convention. In addition, they argued that the enforcement of the second applicant’s return without the first applicant would constitute inhuman treatment prohibited by Article 3 and a violation of Article 9, since the second applicant’s father could be expected to subject him to the precepts of the “Lubavitch” community, which the applicants described as “ultra-orthodox” and from which the first applicant wished to distance her child permanently.",
"88. The Court notes, however, that the Chamber declared inadmissible the complaints under Articles 3 and 9 of the Convention for failure to exhaust domestic remedies. Accordingly, the Grand Chamber cannot examine them (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001 ‑ VII).",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"89. The applicants alleged that there had been a violation of their right to respect for their family life under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"1. Applicability of Article 8",
"90. The Court refers to the following findings in the Chamber judgment:",
"“79. Turning now to the circumstances of the present case, the Court first observes that, for the applicants, the possibility of continuing to live together is a fundamental consideration which clearly falls within the scope of their family life within the meaning of Article 8 of the Convention, and that Article is therefore applicable (see, among many other authorities, Maire v. Portugal, no. 48206/99, § 68, ECHR 2003 ‑ VII).",
"...",
"81. Moreover, it is not in dispute that the Federal Court’s order for the child’s return constituted for the two applicants an ‘interference’ within the meaning of the second paragraph of Article 8 of the Convention.”",
"91. The Grand Chamber subscribes to those findings, which are not in dispute between the parties. It must therefore be ascertained whether the impugned interference met the requirements of the second paragraph of Article 8, that is to say whether it was “in accordance with the law”, pursued one or more legitimate aims and was “necessary in a democratic society” in order to fulfil those aims.",
"2. Justification for the interference",
"(a) Legal basis",
"(i) The Chamber judgment",
"92. The Chamber found as follows (see paragraph 80 of the judgment):",
"“The Court notes that under the Hague Convention the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, alone or jointly, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, first paragraph, sub-paragraph (a)). The notion of ‘rights of custody’ within the meaning of the Hague Convention includes rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5, sub-paragraph (a)). The Court takes the view that in the present case the child’s removal to Switzerland was wrongful, since, in accordance with the decision of 27 June 2004, the father exercised ‘guardianship’ jointly with the mother and in the Israeli legal system this included the right to determine the child’s place of residence. Moreover, the removal of Noam rendered illusory, in practice, the right of access (Article 4, first paragraph) that had been granted to the father by the decision of 17 November 2004. Accordingly, it was unquestionably wrongful within the meaning of the Hague Convention.”",
"(ii) The parties’ submissions",
"(α) The applicants",
"93. The applicants took the view that the present case did not concern an international child abduction under the Hague Convention. They first argued that Noam’s removal from Israel by his mother had not been wrongful within the meaning of that Convention. They submitted that the Government had committed a manifest error of judgment in indicating that the decision given on 17 November 2004 by the Israeli court had granted “temporary custody” to the mother.",
"94. The applicants considered the child’s removal to Switzerland to have been lawful, for the following reasons in particular: the father’s conduct and death threats against the first applicant had warranted a special measure of protection in her favour that had been granted on 12 January 2005; the father, on account of the religious fanaticism that he displayed publicly, wanted unilaterally to impose on his infant son an ultra-orthodox and radical religious education and lifestyle without consideration for the child’s interest or for the disagreement expressed by the mother; an arrest warrant had been issued against the father on 20 March 2005 for defaulting on maintenance payments and he had had his right of access restricted and placed under the supervision of the social services because of his irresponsible conduct; the criminal complaints filed against him in Israel had been ineffective; lastly, the child’s removal had been lawful by virtue of Israeli Law no. 5722-1962 (“Capacity and Guardianship Law”), of which section 25 provided in fine that in the event of disagreement between the parents, children up to the age of six would remain with their mother, and of which section 18 in fine expressly authorised either parent to act alone in a matter admitting of no delay, which would especially be the case where the parent had custody of the child.",
"(β) The Government",
"95. The Government took the view that the second applicant’s removal had been wrongful. Pointing out that the Explanatory Report of April 1981 on the Hague Convention contrasted “rights of custody” with simple access rights, they observed that “[a] questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other”. Thus, the question whether joint custody existed had to be determined in each particular case and in the light of the law in force in the country of the child’s habitual residence.",
"96. In the Government’s submission, it was clear that, by reference to the definition in Article 5, sub-paragraph (a), of the Hague Convention, Israeli guardianship covered “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” within the meaning of that provision. That interpretation was confirmed by the fact that Article 3 of the Hague Convention expressly mentioned cases where, as in the present case, custody was exercised jointly. It could clearly be seen from the Explanatory Report that this particularly referred to cases of joint custody after the parents had separated or divorced. In this connection the Government stressed that it was expressly envisaged in the Hague Convention that the removal of a child against the wishes of a parent having joint custody, but with whom the child did not live, would be unlawful.",
"97. The view that joint guardianship was irrelevant as the mother alone had custody, as expressed by Judge Spielmann in his dissenting opinion (appended to the Chamber judgment), was not sufficiently substantiated by the passages of the Explanatory Report cited in that opinion. As regards Judge Spielmann’s observation that the Explanatory Report appeared to make a distinction between custody rights and parental authority in the context of children entrusted to an institution, the Government observed that it was apparent from the passage in question that in the event of compulsory placement of the child, custody for the purposes of the Hague Convention would belong to the relevant body. In the Government’s submission, as that body was then responsible for taking care of the child’s needs and, in particular, for determining its place of residence, that passage also confirmed that custody within the meaning of the Hague Convention corresponded to guardianship and not to custody in Israeli law.",
"98. In view of the foregoing, the Government submitted that the Hague Convention was applicable and that the second applicant’s removal from Israel had to be regarded as wrongful within the meaning of that Convention. All the authorities dealing with the matter, whether the Israeli and Swiss authorities or the Chamber of the Court, had moreover shared that opinion.",
"(iii) The Court’s assessment",
"99. The Court notes that the Federal Court’s judgment of 16 August 2007 was based mainly on the Hague Convention, which has been incorporated into Swiss law. However, the applicants disputed the applicability of that instrument in the present case because, in their view, Noam’s removal from Israel by his mother was not wrongful. The Court must therefore examine whether the Hague Convention constituted a sufficient legal basis on which to order the child’s return to Israel.",
"100. The Court reiterates at the outset that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Korbely v. Hungary [GC], no. 9174/02, § 72, ECHR 2008).",
"101. In the present case, the second applicant’s removal was examined by three domestic courts which all concluded, in duly reasoned decisions, that it was wrongful within the meaning of the Hague Convention. That assessment was confirmed by the Chamber for two main reasons: firstly, even though the first applicant had custody, at least on a provisional basis, the father had guardianship jointly with the mother under Israeli law; secondly, Noam’s removal rendered illusory, in practice, the right of access that had been granted to the father.",
"102. It should also be observed that the concept of custody rights, within the meaning of the Hague Convention, has an autonomous meaning (see paragraphs 66-67 above) since it has to be applied to all the States Parties to that Convention and may be defined differently in their various legal systems. In the present case, it appears that in Israeli law the institution of guardianship is comparable to custody rights under Article 5, first paragraph, (a) of the Hague Convention, which refers in its definition to the right “to determine the child’s place of residence”. Such right is also included in guardianship. In the present case that right was breached because it was to be exercised jointly by both parents; moreover, there is no indication that it was not exercised effectively until the child’s removal, as required by Article 3, first paragraph, (b) of that Convention.",
"103. In addition, it is noteworthy that the mother took the child to Switzerland in breach of an order prohibiting his removal from Israel that had been made by the competent Israeli court at her own request. It appears that courts in certain States take the view that breaches of such orders give rise to the application of the Hague Convention (see paragraphs 69-74 above).",
"104. Lastly, even though in principle the Hague Convention applies only to breaches of custody rights, it can be seen from its Preamble, Article 1 (b) and Article 21 (see paragraph 57 above) that it also seeks to protect access rights. There is no doubt in the present case that the second applicant’s removal hindered the possible exercise by the father of the right of access that he had been granted.",
"105. In view of the foregoing, the Court finds, like the Chamber, that the first applicant removed her child from Israel to Switzerland “wrongfully”, within the meaning of Article 3 of the Hague Convention. She thus committed an abduction for the purposes of that Convention, which is therefore applicable in the present case. Accordingly, in ordering the child’s return under Article 12 of the Hague Convention, the impugned measure had a sufficient legal basis.",
"(b) Legitimate aim",
"106. The Court shares the Chamber’s opinion that the decision by the Federal Court to return the child pursued the legitimate aim of protecting the rights and freedoms of Noam and his father, as the parties have moreover not denied before the Grand Chamber.",
"(c) Necessity of the interference in a democratic society",
"(i) The Chamber judgment",
"107. In the Chamber’s opinion, the interference that would be constituted by Noam’s return would not be disproportionate. In this connection the Chamber noted the many measures that had been taken by the Israeli authorities in order to protect the applicants when they were still living in that country. A return to Israel could be envisaged for the mother and for the child, given that he was still at a perfectly adaptable age (see the Chamber judgment, §§ 80 and 89). As regards the risk of a criminal sanction against the mother, the Chamber found no reason to doubt the credibility of the assurances given by the Israeli authorities in that connection, having regard in particular to the efforts they had made for the mother and child before their departure for Switzerland (ibid., § 90). The Chamber further emphasised that it was in the “best interests” of every child to grow up in an environment that allowed him or her to maintain regular contact with both parents (ibid., § 91). In addition, there was no evidence to suggest that the first applicant would be unable to influence her son’s religious education or that the Israeli authorities and courts would be unable to prevent the father from sending him to a religious “Heder” school (ibid., § 92).",
"(ii) The parties’ submissions",
"(α) The applicants",
"108. The applicants submitted that, in the present case, it should be borne in mind that the first applicant had custody of the child whilst the father had a limited right of access, under supervision, on account of conduct that all the judges dealing with this case had unanimously found to be unacceptable. In the applicants’ submission, that circumstance was of the essence, since it clearly distinguished the present case from Bianchi v. Switzerland (no. 7548/04, § 77, 22 June 2006), in which the Court had emphasised that while its role was not to substitute itself for the competent authorities in regulating custody and access issues, it was nevertheless entitled to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation.",
"109. The applicants took the view that the Federal Court’s method was significantly different from that adopted by the first two courts in support of their decisions: while those two courts had refused to place too narrow an interpretation on the provisions of the relevant international instruments, the same could not be said for the Federal Court, which had limited the scope of its analysis by deliberately taking an overtly restrictive position. Whilst the courts below had upheld the objection to the child’s return, highlighting, in particular, the best interests of the child and the grave risk of psychological harm, and also the intolerable situation which they considered the child would face if he were returned to Israel with or without his mother, the Federal Court had quite simply rejected that approach, even though it was supported by an expert’s report, and had declared that the proper solution was in fact to compel the mother, who had custody, to return to Israel with the child, failing which she would be separated from him. However, the first applicant had always declared that she would not return to Israel, not only because of the intolerable situation which had precisely led her to leave that country in June 2005, but also because to do so would mean uprooting herself and her child and would entail problems for her before the Israeli courts. In addition, as she had sole financial responsibility for the child, the first applicant could not reasonably be expected to give up her job in Switzerland. Furthermore, the child and his mother had been fully integrated in the environment and social life of Lausanne for more than four years.",
"110. In the applicants’ submission, the risk that the mother would be imprisoned if she returned to Israel was established and the civil consequences of separation would be disastrous. They stated that, under Israeli criminal law no. 5737-1977, the mother was liable to very severe criminal sanctions. Contrary to the Federal Court’s finding, she would most certainly face such a sanction on her return to Israel and this would undoubtedly constitute, in the applicants’ view and as the medical expert had emphasised in his report of 16 April 2007, a major psychological trauma and an intolerable situation for the child, who would in practice experience an immediate and distressing separation from his mother. The applicants stated that the consequences of the mother’s imprisonment in Israel would also be disastrous in civil terms for the future of mother and child. They alleged that in such a case, after being separated from his mother when she was sent to prison, Noam would not be entrusted to his father on account of the decisions previously issued against him, his instability and his lack of resources. They pointed out at this stage that the father had remarried on 1 November 2005 but had divorced his new wife, G., on 29 March 2006 while she was pregnant. He had married a third time and proceedings had again been brought against him in 2008, this time by his second wife, for defaulting on maintenance payments in respect of their daughter.",
"111. The applicants also argued that neither the Israeli authorities nor the respondent Government had given any reliable guarantees that the first applicant would not face criminal sanctions should she return to Israel and that she would not be separated from her child, of whom she had custody. The letter produced by the respondent Government in support of their observations of 15 February 2008 (Annex no. 3 – paragraph 40 above) contained no element capable of precluding with certainty all risk of criminal sanctions against her if she returned to Israel.",
"112. The applicants also pointed out that in his report of 16 April 2007 Dr B., a medical expert, taking into account the fact that the mother had ruled out her return to Israel owing to the risk of judicial proceedings against her, had concluded that the child’s return without his mother would entail major psychological trauma in the form of extreme separation anxiety and a major risk of severe depression.",
"113. In the applicants’ submission, the opinion expressed by the Federal Court and by the respondent Government in the present case did not reflect those expressed by the Federal Council, by legal writers, by the Swiss Parliament or by the main organisations which had been consulted prior to the enactment, on 21 December 2007, of the new Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults.",
"114. The failure to return the child to Israel would not undermine the international protection system established by the Hague Convention but, on the contrary, would uphold it. In the applicants’ submission, whilst the principle of that Convention was to return a wrongfully removed child to the State of his or her habitual residence with the assistance of the Central Authorities designated for that purpose, it nevertheless had to be emphasised that there was an exception to that principle where the return would expose the child to a grave risk of physical or psychological harm and/or to an intolerable situation (Article 13, sub-paragraph (b), of the Hague Convention). The applicants moreover pointed out that nowadays the Hague Convention was no longer the only instrument providing for assessment in proceedings of this type. They emphasised that the Convention on the Rights of the Child made the best interests of the child a primary consideration in all decisions relating to children. Thus they took the view that the Federal Court should not have disregarded the best interests of the child. In assessing those interests it should have ascertained and weighed up specifically and objectively the consequences of the child’s return to Israel, and should have determined and described, before delivering its judgment, the appropriate arrangements that would apply upon the child’s return.",
"115. As regards the possibility that the parents might agree on the child’s education, such a scenario could not be envisaged in the present case precisely because of the radical position adopted by the father. The applicants pointed out in this connection that at the time of his marriage to the first applicant on 16 October 2001, Mr Shuruk had not yet adopted a radical religious attitude. It was only from the autumn of 2003, shortly after the child’s birth, that the father had, without taking into account the mother’s opinion, chosen to join an ultra-orthodox religious movement, thus completely changing the rules of life adopted by the spouses at the time of their marriage. Moreover, Mr Shuruk had not denied that he belonged to the ultra-orthodox Jewish “Lubavitch” movement, which, in the applicants’ submission, was a “mystical and ascetic movement” of traditional Hasidic Judaism, whose members engaged in zealous proselytising. Nor had Mr Shuruk denied having also sought to impose on his wife and child a radical way of life which, for example, required women to hide their hair and boys to be sent at the age of three to religious “Heder” schools. In this connection, the first applicant explained that she had no intention of cutting her son off from his roots. Since 2006 he had been attending a municipal secular nursery school one day a week and a private State-approved Jewish day-care centre where, in addition to the school curriculum of the Canton of Vaud, he was being taught the basic principles of Judaism.",
"116. Lastly, the applicants argued that the child’s protection required the authorities of the requested State to have taken all the necessary precautionary measures prior to enforcing the return that had been ordered. They observed that it was apparent in particular from the Government’s observations of 15 February 2008 that the Federal Court’s judgment of 16 August 2007 did not contain any provisions for its enforcement.",
"117. For these reasons the applicants concluded that the child’s return to Israel would constitute an unjustified interference, in a democratic society, with the exercise of their right to respect for their family life, as protected by Article 8 of the Convention.",
"(β) The Government",
"118. The Government observed that whilst a return to Israel would cause the first applicant some inconvenience that she might find unsatisfactory, such problems were inherent in the Hague Convention system and could not render its mechanism inoperable. In the Government’s submission it was only where the return entailed violations of human rights that went beyond the interference inherent in the return envisaged by the Hague Convention that such return had to be declared incompatible with the Convention, a situation which, moreover, was envisaged by Article 20 of the Hague Convention. The Government took the view that the exceptions to the child’s return had to be interpreted in a restrictive manner if the Hague Convention was not to become a dead letter.",
"119. The Government further relied on the Court’s judgment in Maumousseau and Washington v. France (no. 39388/05, 6 December 2007), where it had stated that the aim of the Hague Convention was to prevent the “abducting” parent from succeeding in legitimating, by the passage of time operating in his or her favour, a de facto situation which he or she had created unilaterally. In that case the national authorities had stressed, in particular, that the mother, contrary to what she maintained, could accompany her child to the State in which he had his habitual residence in order to assert her rights there. That factor had been regarded as decisive by the Court, as the mother had unrestricted access to the territory of the State in question and could bring proceedings before the competent courts of that State.",
"120. In the Government’s opinion, the arguments put forward in the dissenting opinions, and reiterated by the applicants in their referral request, could not call into question the merits of the assessment by the Federal Court and by the Chamber. It could not be inferred, in the context of the Hague Convention, that the fact that the first applicant was socially integrated in Lausanne prevented her from accompanying the second applicant if he returned to Israel. As she had lived in Israel for six years, she must surely have a certain social network there. In that connection, the Government emphasised that, according to the report by the expert Dr B., she had decided to settle in Israel after spending holidays with her family in that country.",
"121. As regards the risk of criminal sanctions, the Government took the view that nothing new had emerged from the dissenting opinions or from the applicants’ referral request. The Government admitted that it followed from a letter from the Israeli Central Authority, forwarded to the Guardianship Division by the child’s father, that under Israeli criminal law a custodial sentence could be imposed for child abduction. However, guidelines issued by the Israeli State Attorney’s Department provided that when the police were dealing with such a case they would transfer it to the Israeli Central Authority responsible for application of the Hague Convention, which would then make recommendations as to the solution to be applied to the case. In this connection the Government observed that, according to the relevant guidelines, criminal proceedings should be brought only in very exceptional cases. The Israeli Central Authority had indicated that in the present case it would consider directing the Israeli police to close the criminal proceedings if the first applicant proved ready to cooperate with the Israeli authorities and to respect the right of access granted to the father by the Tel Aviv Family Court, and if she did not disappear again with the child (see letter of 30 April 2007 appended to the Government’s observations of 14 August 2009). In this connection the Government took the view that the Hague Convention system was based on mutual confidence between the States Parties to that instrument and that if a State should fail to comply with its assurances, it would run the risk that the other States might not cooperate with it in the fashion envisaged. The Government thus subscribed to the Chamber’s view that no doubt should be cast on the credibility of the assertions in that letter and that the first applicant did not run the risk of incurring criminal sanctions (see Chamber judgment, § 90).",
"122. The Government further observed that, throughout the domestic proceedings, the first applicant had never adduced the slightest firm evidence relating to the judicial consequences which she would allegedly face in the event of her return. On the contrary, she had asserted at the hearing of 29 August 2006 before the Justice of the Peace that she did not even contemplate returning to Israel and that she did not know what risk she would personally run if she were to return to that country.",
"123. Lastly, the fact that the second applicant’s father had defaulted on his maintenance obligations was also insufficient to preclude the reasonable expectation that the first applicant would return to Israel. In the Government’s submission, strictly from the viewpoint of the child’s best interests, it would no doubt be preferable for him to grow up having contact with his father, even if the father paid him no maintenance, than to grow up without knowing him.",
"124. In response to the fears expressed in the dissenting opinions and reiterated by the applicants in their referral request, namely, firstly, that any attempt on the first applicant’s part to influence her son’s religious education would in all likelihood be unsuccessful and, secondly, that the Chamber had placed confidence, in an abstract fashion, in a legal system whose principles in family-law matters differed, sometimes significantly, from those that were applied in Europe, the Government referred to the Explanatory Report on the Hague Convention, according to which, when the Convention was being drafted, one of the concerns taken into account was to avoid the risk that decisions given pursuant to that instrument might express “particular cultural, social etc. attitudes which themselves derive[d] from a given national community” and thus, basically, impose “their own subjective value judgments upon the national community from which the child ha[d] recently been snatched” (paragraph 22 of the Report). Furthermore, in the event of disagreement about a child’s religious education, the court granting parental authority would decide according to the best interests of the child. Independently of whether the Israeli courts dealing with the case were religious or secular courts, it was noteworthy that they had followed the recommendations of the social worker responsible for the case and had imposed many restrictions on the second applicant’s father, even though his conduct was linked with his religious ideas. There was thus no reason to conclude that those courts, on account of the “religious context of the case”, would not act in an appropriate manner.",
"125. The Government further observed that before the applicants had left Israel their family situation had been closely monitored by the Tel Aviv social services and the Tel Aviv Family Court, which had, in particular, prohibited the child’s father from approaching the first applicant’s flat and the child’s nursery school, from disturbing or harassing the first applicant in any way whatsoever, including by mental harassment, and in any place, from using the flat in which the first applicant lived or from carrying or possessing a weapon. The Government pointed out that it was not disputed that the father had complied with those measures (see record of the hearing of 29 August 2006 before the Justice of the Peace).",
"126. It was also apparent from a letter from the Israeli Central Authority to the Cantonal Court that the Israeli Prevention of Family Violence Law of 1991 made provision for protective measures in the event of allegations of violence within the family (see the letter of 12 March 2007 in Annex 6 to the Government’s observations of 14 August 2009). The Israeli authorities’ conduct and the measures taken before the first applicant’s departure with her son showed that the provisions of that law were applied effectively. In those circumstances, and in the light of the measures taken by the Israeli authorities, the Government submitted that the conduct of the second applicant’s father did not constitute a risk within the meaning of Article 13, sub-paragraph (b), of the Hague Convention.",
"127. Lastly, the applicants’ extended stay in Switzerland could not constitute an obstacle to their return pursuant to the Hague Convention. The Government, relying in this connection on the Chamber judgment, took the view in particular that, given the second applicant’s young age, he would not be exposed to any risk within the meaning of the relevant provisions.",
"128. In so far as the applicants had also criticised the judgment of the Federal Court of 16 August 2007 for not containing any provisions for its enforcement, the Government observed that the enforcement of judgments of the Federal Court was a matter for the cantonal authorities. The Government explained that the competent authority in the present case was the Justice of the Peace of the District of Lausanne, which had delivered the decision at first instance. On 20 August 2007 the child’s father had applied to that authority through his counsel to appoint an ad hoc guardian for the child with the task of arranging Noam’s departure in accordance with the decision of the Federal Court. Following this Court’s decision of 27 September 2007 to indicate a stay of execution in the present case, the father had withdrawn his request on 1 October 2007. These were the reasons why, for the time being, the arrangements for the child’s return had not yet been decided. The Government further observed that the Federal Court, in its judgment of 16 August 2007, had ordered the child’s return on the assumption that the mother could be expected to accompany him. Moreover, primary responsibility for arranging the return lay with the first applicant, who had created the present dispute in the first place by abducting her son. The Government submitted, however, that if the first applicant had expressed actual fears linked with specific aspects of a return to Israel, the competent authority could have examined measures capable of providing a remedy. Moreover, the arrangements for the child’s return had not been examined further by the Swiss authorities on account of the interim measures indicated by the Court.",
"129. The Government expressed the view that, after a stay of more than four years in the host country, it was clearly no longer possible to speak of a “prompt return” within the meaning of the Hague Convention. Moreover, whilst it was true that, at the time of the Federal Court’s judgment, it was justifiable to disregard the passage of time, that was no longer the case at present. In other words, the Government’s submission is that the authorities competent for the enforcement of the return have the right and the duty to examine the conditions in which the return could be implemented without breaching the applicants’ rights.",
"130. Having regard to the foregoing, the Government were satisfied that the conditions of Article 13, sub-paragraph (b), of the Hague Convention had manifestly not been met in the present case, and that the balancing of the interests involved, even if it entailed difficult consequences for the first applicant, was consistent with that provision and complied with the requirements of Article 8 § 2 of the Convention.",
"(iii) The Court’s assessment",
"(α) General principles",
"131. The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II; and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI).",
"132. In matters of international child abduction, the obligations that Article 8 imposes on the Contracting States must therefore be interpreted taking into account, in particular, the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003-V, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000-I) and the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72). The Court has, for example, espoused the provisions of the Hague Convention on a number of occasions, in particular Article 11 when examining whether the judicial or administrative authorities, on receiving an application for the return of a child, had acted expeditiously and diligently, as any inaction lasting more than six weeks could give rise to a request for a statement of reasons for the delay (see, for the text of that provision, paragraph 57 above, and for examples of application, Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Ignaccolo-Zenide, cited above, § 102; Monory v. Romania and Hungary, no. 71099/01, § 82, 5 April 2005; and Bianchi, cited above, § 94).",
"133. However, the Court must also bear in mind the special character of the Convention as an instrument of European public order ( ordre public ) for the protection of individual human beings and its own mission, as set out in Article 19, “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention (see, among other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 93, Series A no. 310). For that reason the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to that effect, Bianchi, cited above, § 92, and Carlson, cited above, § 73).",
"134. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX), as is indeed apparent from the Preamble to the Hague Convention, which provides that “the interests of children are of paramount importance in matters relating to their custody”. The child’s best interests may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII). The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (ibid.; see also Haase v. Germany, no. 11057/02, § 89, ECHR 2004 ‑ III, and Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002 ‑ I, and the numerous authorities cited therein).",
"135. The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49-56 above, and in particular Article 24 § 2 of the European Union’s Charter of Fundamental Rights). As indicated, for example, in the Charter, “[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.",
"136. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006).",
"137. The same philosophy is inherent in the Hague Convention, which in principle requires the prompt return of the abducted child unless there is a grave risk that the child’s return would expose it to physical or psychological harm or otherwise place it in an intolerable situation (Article 13, sub-paragraph (b)). In other words, the concept of the child’s best interests is also an underlying principle of the Hague Convention. Moreover, certain domestic courts have expressly incorporated that concept into the application of the term “grave risk” under Article 13, sub-paragraph (b), of that Convention (see paragraphs 58-64 above). In view of the foregoing, the Court takes the view that Article 13 should be interpreted in conformity with the Convention.",
"138. It follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences (see the UNHCR Guidelines, paragraph 52 above). For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A, and Kutzner, cited above, §§ 65-66; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69).",
"139. In addition, the Court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005 ‑ XIII). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, cited above, § 74).",
"140. The Court has already had occasion to examine the question whether the conditions of enforcement of a child’s return were compatible with Article 8 of the Convention. It defined the obligations of States in such matters in Maumousseau and Washington (cited above, § 83) as follows:",
"“The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, Ignaccolo-Zenide, cited above, § 94). However, this obligation is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision ordering the child’s prompt return, the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation and, whilst coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives (see Maire, cited above, § 76). Lastly, in this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live. The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children and any failure to act for more than six weeks may give rise to a request for explanations (see Maire, cited above, § 74).”",
"(β) Application of those principles to the present case",
"141. It is not the Court’s task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological harm, within the meaning of Article 13 of the Hague Convention, if he returned to Israel. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that Convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests.",
"142. The Court notes that the domestic courts hearing the case were not unanimous as to the appropriate outcome. On 29 August 2006 the Lausanne District Justice of the Peace dismissed the father’s application for the child’s return, finding that Article 13, sub-paragraph (b), of the Hague Convention was to be applied in the case (see paragraph 36 above). On 22 May 2007 that decision was confirmed in substance by the Guardianship Division of the Cantonal Court of the Canton of Vaud (see paragraph 41 above). However, on 16 August 2007, the Federal Court allowed the father’s application and ordered Noam’s return. In that court’s opinion, the judgment of the Cantonal Court had failed to provide any evidence of a grave risk of harm, or of any intolerable situation for the child, in the eventuality – an acceptable one for the Federal Court – of the mother’s return with him to Israel (see paragraph 44 above). Lastly, in a provisional-measures order of 29 June 2009 the President of the Lausanne District Court decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted exclusive parental authority to the mother. He observed in particular that neither the father nor his lawyer had ever appeared at hearings before that court and thus found that the father had lost interest in the case (see paragraph 47 above).",
"143. Moreover, a number of experts’ reports concluded that there would be a risk for the child in the event of his return to Israel. In the first such report, delivered on 16 April 2007 by Dr B., it was stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their possible repercussions for the child. As to the child’s return without his mother, that would also expose him to a risk of major psychological harm (see paragraph 37 above). The second report, drafted on 23 February 2009 by Dr M.-A., concludes that Noam’s abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for the child (see paragraph 46 above).",
"144. It would thus seem that in the view of the domestic courts and experts, Noam’s return could only be envisaged with his mother, in any event. Even the Federal Court, the only domestic court to have ordered the child’s return, based its decision on the consideration that as there were no grounds objectively justifying the mother’s refusal to return to Israel, she could reasonably be expected to return to that country with her child. It must therefore be determined whether this conclusion is compatible with Article 8, that is to say whether the forced return of the child accompanied by his mother, even though she seems to have ruled out this possibility, would represent a proportionate interference with the right of each of the applicants to respect for their family life.",
"145. Even though doubts in this respect may appear justified, the Court is prepared to accept that in the present case the measure in question remains within the margin of appreciation afforded to national authorities in such matters. However, in order to assess whether Article 8 has been complied with, it is also necessary to take into account the developments that have occurred since the Federal Court’s judgment ordering the child’s return (see, mutatis mutandis, Sylvester v. Austria, nos. 36812/97 and 40104/98, 24 April 2003). The Court must therefore place itself at the time of the enforcement of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008). If it is enforced a certain time after the child’s abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis. Moreover, whilst under Article 12, second paragraph, of the Hague Convention, a judicial or administrative authority before which the case is brought after the one-year period provided for in the first paragraph must order the child’s return, this is not so if it is demonstrated that the child is now settled in his or her new environment (see, to that effect, Koons v. Italy, no. 68183/01, §§ 51 et seq., 30 September 2008).",
"146. The Court takes the view that guidance on this point may be found, mutatis mutandis, in its case-law on the expulsion of aliens (see Maslov, cited above, § 71, and Emre v. Switzerland, no. 42034/04, § 68, 22 May 2008), according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being, and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination. The seriousness of any difficulties which may be encountered in the destination country by the family members who would be accompanying the deportee must also be taken into account (see Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006-XII).",
"147. As regards Noam, the Court notes that he has Swiss nationality and that he arrived in the country in June 2005 at the age of two. He has been living there continuously ever since. In the applicants’ submission, he has settled well and in 2006 started attending a municipal secular day nursery and a State-approved private Jewish day nursery. He now goes to school in Switzerland and speaks French (see the provisional-measures order of 29 June 2009, paragraph 47 above). Even though he is at an age where he still has a certain capacity for adaptation, the fact of being uprooted again from his habitual environment would probably have serious consequences for him, especially if he returns on his own, as indicated in the medical reports. His return to Israel cannot therefore be regarded as beneficial.",
"148. Accordingly, the significant disturbance that the second applicant’s forced return is likely to cause in his mind must be weighed against any benefit that he may gain from it. In this connection it is noteworthy, as the District Court observed, that restrictions had been imposed by the Israeli courts, even before the abduction, on the father’s right of access, authorising him to see his child only twice a week under the supervision of the social services at a contact centre in Tel Aviv (see paragraph 47 above). Moreover, the applicants submitted, without being contradicted by the Government, that Noam’s father had remarried on 1 November 2005 and had divorced only a few months later, while his new wife was pregnant. He had then married for a third time. New proceedings had been brought against him in 2008, this time by his second wife, for failure to pay maintenance in respect of his daughter. The Court doubts that such circumstances, assuming they are established, would be conducive to the child’s well-being and development.",
"149. As to the problems that the mother’s return would entail for her, she could be exposed to a risk of criminal sanctions, the extent of which, however, remains to be determined. Before the Court the applicants referred to the letter from the Israeli Central Authority of 30 April 2007, which showed that the possibility of the first applicant not being prosecuted by the Israeli authorities would depend on a number of conditions relating to her conduct (see paragraph 40 above). In those circumstances, such criminal proceedings, which could possibly entail a prison sentence, cannot be ruled out entirely (contrast Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). It is clear that such a scenario would not be in the best interests of the child, the first applicant probably being the only person to whom he relates.",
"150. The mother’s refusal to return to Israel does not therefore appear totally unjustified. Having Swiss nationality, she is entitled to remain in Switzerland. Even supposing that she agreed to return to Israel, there would be an issue as to who would take care of the child in the event of criminal proceedings against her and of her subsequent imprisonment. The father’s capacity to do so may be called into question, in view of his past conduct and limited financial resources. He has never lived alone with the child and has not seen him since the child’s departure.",
"151. In conclusion, and in the light of all the foregoing considerations, particularly the subsequent developments in the applicants’ situation, as indicated in particular in the provisional-measures order of 29 June 2009, the Court is not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return with her son to Israel. Consequently, there would be a violation of Article 8 of the Convention in respect of both applicants if the decision ordering the second applicant’s return to Israel were to be enforced.",
"III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"152. The Chamber found that the complaint under Article 6 § 1 of the Convention had to be regarded as constituting one of the essential points of the complaint under Article 8 and that it was not necessary to examine this allegation separately (see the Chamber judgment, § 104).",
"153. The Grand Chamber considers it appropriate to confirm that finding and observes, moreover, that it has not been disputed before it by the parties.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"154. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"155. The applicants did not submit any claim in respect of pecuniary damage. They took the view that any finding of a violation of Article 8 would provide sufficient redress for the non-pecuniary damage that they had sustained.",
"156. The Court shares the applicants’ opinion and finds that no award should be made in respect of any damage.",
"B. Costs and expenses",
"157. In respect of costs and expenses, the applicants claimed a total amount of 53,625 euros (EUR) calculated as follows: EUR 18,158.81 in respect of the domestic proceedings, EUR 13,112.92 for the proceedings before the Chamber, and EUR 22,353.27 for the proceedings before the Grand Chamber.",
"158. The Government pointed out that the questions referred from the Chamber concerned only part of the initial complaints. Accordingly, they took the view that if the Court were to find a violation of the applicants’ rights, a total of 10,000 Swiss francs (CHF), equivalent to approximately EUR 6,667, would be appropriate in the present case to cover the costs and expenses incurred in the proceedings before the domestic courts and before the Chamber. As regards the proceedings before the Grand Chamber, the Government submitted that CHF 7,000 (approximately EUR 4,667) would be an appropriate amount.",
"159. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Zimmermann and Steiner v. Switzerland, 13 July 1983, § 36, Series A no. 66, and Hertel v. Switzerland, 25 August 1998, § 63, Reports of Judgments and Decisions 1998-VI). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and Linnekogel v. Switzerland, no. 43874/98, § 49, 1 March 2005).",
"160. Having regard to the foregoing, the Court notes that only the complaint under Article 8 has, in the present case, given rise to a finding of a violation of the Convention. The remainder of the application is inadmissible. In addition, it is not certain that the applicants’ claims have been sufficiently substantiated to meet in full the requirements of Rule 60 § 2 of the Rules of Court. In any event, they appear excessive, in particular as regards the amount claimed for the proceedings before the Grand Chamber. As Noam’s abduction had already been examined in detail by the domestic authorities and by the Chamber, the Court is not convinced that the proceedings before the Grand Chamber, and in particular the hearing of 7 October 2009, required the assistance of five lawyers for a total cost of EUR 21,456.",
"161. Having regard to the material in its possession and to the criteria developed in its case-law, the Court awards the applicants jointly a total of EUR 15,000 for costs and expenses, plus any amount that may be payable by them in tax on that award.",
"C. Default interest",
"162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
54 | X v. Latvia | 26 November 2013 (Grand Chamber) | This case concerned the procedure for the return of a child to Australia, her country of origin, which she had left with her mother at the age of three years and five months, in application of the Hague Convention of 25 October 1980, and the mother’s complaint that the Latvian courts’ decision ordering that return had breached her right to respect for her family life within the meaning of Article 8 of the Convention. | The Court held that there had been a violation of Article 8 of the European Convention on Human Rights. It considered that the European Convention and the Hague Convention of 25 October 1980 had to be applied in a combined and harmonious manner, and that the best interests of the child had to be the primary consideration. In the present case, it considered that the Latvian courts had not complied with the procedural requirements of Article 8 of the European Convention, in that they had refused to take into consideration an arguable allegation of a “serious risk” to the child in the event of her return to Australia. | International child abductions | Applications lodged by the abducting parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1974 and now resides in Australia. She is a Latvian national, who, in 2007, also acquired Australian nationality.",
"10. After meeting T. and beginning a relationship with him at the beginning of 2004, she moved into his flat at the end of that year, although she was still married to another man, R.L., whom she divorced on 24 November 2005.",
"11. On 9 February 2005 the applicant gave birth to a daughter, E. The child’s birth certificate does not give the father’s name, and no paternity test was carried out. The applicant, who was still living with T., subsequently received single-parent benefits. In spite of the deterioration in their relationship, the applicant continued to live with T. as a tenant.",
"12. On 17 July 2008 the applicant left Australia for Latvia with her daughter, then aged three years and five months.",
"A. The proceedings in Australia",
"13. On 19 August 2008 T. submitted an application to the Family Court in Australia to establish his parental rights in respect of the child. In support of his claim, he testified in a sworn affidavit that he had been in a relationship with the applicant since 2004 and the latter had always indicated that he was the father of the child, the rental agreement with the applicant for the flat was a sham and had been a mutual decision, and he had made false statements to the social security services in order to enable the applicant to receive single-parent benefit. T. asserted that the applicant had left Australia with the child without his consent, in violation of Article 3 of the Hague Convention, and had gone to an unknown place of residence in Latvia. In support of his claim, he submitted e-mail correspondence with members of his family.",
"14. The applicant, although apparently invited by various means to attend the hearing or follow it by telephone, was not present.",
"15. By a judgment of 6 November 2008, the Australian Family Court recognised T.’s paternity in respect of E. and held that the applicant and T. had had joint parental responsibility for their child since her birth. The judge added that examination of the case would be continued once the child had been returned to Australia, while stating as follows:",
"“... however, it is not of course for me to say whether the child’s presence in Latvia is the consequence of a wrongful removal or retention. With all due respect, it is for the Latvian judge to rule on that question.”",
"16. The applicant did not appeal against that decision.",
"B. The proceedings in Latvia",
"17. On 22 September 2008 the Ministry of Children and Family Affairs, which was the Latvian Central Authority responsible for implementing the Hague Convention, received from their Australian counterpart a request from T. seeking the child’s return to Australia on the basis of that Convention. The return request was accompanied by a sworn affidavit setting out the applicable Australian law and certifying, without prejudice to the issue of paternity, that on the date on which the child had been removed from Australia T. had exercised joint parental authority over her within the meaning of Article 5 of the Hague Convention.",
"18. On 19 November 2008 the Riga City Zemgale District Court (“the District Court”) examined the request in the presence of both T. and the applicant.",
"19. At the hearing the applicant contested T.’s request. She explained that he had no grounds for being recognised as the father, since she had still been married to another man at the time of the child’s birth and T. had never expressed a wish to have his paternity recognised prior to her departure from Australia. She alleged that as T. had become hostile and sometimes aggressive towards her she had requested that persons who had visited her in Australia be called as witnesses. The applicant also submitted that T. had initiated the proceedings only in order to benefit from them in criminal proceedings that had allegedly been brought against him in Australia.",
"20. The representative of the Bāriņtiesa, a guardianship and curatorship institution established by Riga City Council, called for T.’s request to be dismissed, arguing, on the one hand, that the applicant had been a single mother when the child was removed from Australia and, on the other, that the child had developed ties with Latvia.",
"21. By a judgment of 19 November 2008, the District Court granted T.’s request and ordered that the child be returned to Australia immediately and, in any event, not later than six weeks after its decision. In its reasoning, noting that the Australian courts had established that the applicant and T. exercised joint parental responsibility, the court held, firstly, that the Latvian courts could neither reverse that decision, nor interpret and apply the Australian law. It further held that, in application of Articles 1 and 14 of the Hague Convention, the Latvian courts did not have jurisdiction to rule on T.’s parental responsibility for the child, but only on the child’s departure from Australia and her possible return. It considered that the child’s removal had been wrongful and had been carried out without T.’s consent. As to the application of Article 13 of the Hague Convention, it held, in the light of photographs and copies of e-mails between the applicant and T.’s relatives, that he had cared for the child prior to her departure for Latvia. While noting that witness statements referred to arguments between the parties and to the fact that T. had behaved irascibly towards the applicant and the child, it held that this did not enable it to conclude that T. had not taken care of the child. Lastly, the court dismissed as unfounded the allegation that the child’s return posed a risk of psychological harm.",
"22. The applicant lodged an appeal, arguing that when they had left Australia she had been the child’s sole guardian in law and in practice and, further, that her daughter’s return to Australia would expose the child to psychological harm. In support of the latter point, she submitted a certificate prepared by a psychologist at her request after the first-instance court’s judgment. This certificate, based on an examination of E. on 16 December 2008, stated:",
"“Although it is clear from the examination that her development is adequate in terms of knowledge and language, the child is unable, on account of her age, to say which place of residence she prefers ... Bearing in mind the child’s age and her close emotional ties to her mother, which is normal for her age, her emotional well-being is primarily based on and closely linked to [the applicant’s] psychological balance ... The child needs the daily presence of her mother and to live with her permanently in the same place. Given her age – three years and ten months – an immediate separation from her mother is to be ruled out, otherwise the child is likely to suffer psychological trauma, in that her sense of security and self-confidence could be affected.”",
"23. The applicant also maintained on appeal that Latvian was the child’s mother tongue, that she had attended pre-school activities in Latvia, that she had no ties in Australia and that she needed her mother’s presence. She alleged that T. had never helped them financially and had ill-treated them. In addition, she criticised the lower court for refusing to request information from the Australian authorities about T.’s criminal profile, previous convictions and the charges of corruption allegedly brought against him. She also contended that, were she to return to Australia, she would be unemployed and would have no income, and criticised the District Court for failing to provide for protection measures in the event of return.",
"24. On 6 January 2009, on an application by the applicant, the District Court ordered a stay of execution of the decision of 19 November 2008 ordering the child’s return pending completion of the appeal proceedings. Relying on the Preamble to the Hague Convention, it held that the child’s best interests had to take priority over an immediate return, that the child was attached to her mother and that, according to the psychological report submitted by the applicant, a sudden interruption of contact with her mother would traumatise her.",
"25. On 26 January 2009, after a hearing in the presence of both the applicant and T., the Riga Regional Court ( Rīgas Apgabaltiesa ) upheld the first-instance judgment. It held that T.’s request had complied with the Hague Convention, noting the short time-limits set out in it and observing that no formality or analysis was necessary in order to recognise the Australian court’s decision. In addition, it held that the lower court had correctly found, on the basis of all the relevant evidence, especially the letters and photographs that had been submitted, that T. had cared for the child. With regard to the argument by the applicant and the representative of the Bāriņtiesa concerning the alleged lack of information about the child’s situation in the event of her return to Australia, it considered that",
"“there are no grounds for doubting the quality of welfare and social protection provided to children in Australia, given that, according to the [sworn affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”.",
"26. With regard to the applicant’s allegations, it held as follows:",
"“[The Court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was liable to a prison sentence for [criminal charges brought against him] as no evidence has been submitted which could, even indirectly, support the allegations.",
"Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against returning the child to the requesting State. Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this Court does not concern custody rights ... Pursuant to Article 19 of the Hague Convention, a decision under this Convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue.",
"[The Court] considers that ... [the child] ... has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia.”",
"27. On 5 February 2009 a bailiff instructed the applicant to comply with the decision ordering her to return the child by 19 February 2009 at the latest. The applicant refused to do so.",
"28. On an unspecified date a bailiff lodged an application with the District Court for execution of the order to return the child. At the same time the District Court, having received a request from the applicant for a stay of execution of the return order for a period of six to twelve months, scheduled a hearing on 16 April 2009.",
"29. On 6 March 2009, at T.’s request, the Latvian Central Authority asked the Bāriņtiesa to verify the child’s living conditions and to inform the applicant of T.’s request to see the child.",
"30. On 14 March 2009 T. met the applicant and E. unexpectedly near a shopping centre. Taking advantage of this situation, he took E. and drove her to Tallinn (Estonia), then began the return journey to Australia. On 16 March 2009 the Latvian Central Authority, in response to a request from its Estonian counterpart and with a view to authorising T. to take a flight to Helsinki, supplied information concerning T.’s right to return to Australia with his daughter.",
"31. A complaint subsequently filed by the applicant for abduction was dismissed, as was a disciplinary appeal against the Latvian Central Authority; the applicant’s request for a stay of execution of the return order became devoid of purpose.",
"C. The situation in Australia since the child’s return",
"32. In September 2009 the Australian Family Court set aside all prior decisions relating to the parents’ rights and ruled that T. had sole parental responsibility for the child. While prohibiting the applicant from making any public statement about matters concerning the child or T., it authorised her to visit her daughter under the supervision of a social worker. The court also prohibited her from speaking to the child in Latvian and ruled that, until the child reached the age of eleven, the applicant was restrained from visiting or communicating by any means with any childcare facility, pre-school or school attended by her daughter, or with a parent of any other child attending the same institution.",
"33. Before the Grand Chamber, the Government, referring to an article published in the Latvian press in October 2011 which contained, in particular, statements by the applicant’s sister, indicated that the applicant had returned to live in Australia, had found accommodation and was working in a State welfare institution. They also noted that she was in regular contact with her daughter, meeting her twice a week in a welfare centre, and that she had been able to see her without a social worker being present."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction",
"34. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction state as follows:",
"“The States signatory to the present Convention,",
"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,",
"Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,",
"Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –",
"...",
"Article 1",
"The objects of the present Convention are –",
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...",
"Article 3",
"The removal or the retention of a child is to be considered wrongful where –",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.",
"Article 4",
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.",
"Article 5",
"For the purposes of this Convention –",
"a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;",
"b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.",
"...",
"Article 11",
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...",
"Article 12",
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.",
"Article 13",
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.",
"Article 14",
"In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.",
"...",
"Article 16",
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.",
"Article 17",
"The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.",
"...",
"Article 19",
"A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.",
"Article 20",
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"...”",
"35. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply the Convention a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of this Convention, as this matter is to be discussed before the relevant courts in the State of the child’s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific conception of “the child’s best interests”. However, as the child’s removal may be justified for objective reasons which have to do either with his or her person, or with the environment with which he or she is most closely connected, the Convention allows for certain exceptions to the general obligations on the States to ensure an immediate return (§ 25). Since the return of the child is the basic principle of the Convention, the exceptions to the general duty to secure it form an important element in understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive their justification from three different principles (§ 27). Firstly, the authorities of the requested State are not bound to order the return of the child if the person requesting the return was not actually exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28). Secondly, the first paragraph, (b), and second paragraph of Article 13 contain exceptions which clearly derive from a consideration of the interests of the child, to which the Convention gives a definite content. Thus, the interest of the child in not being removed from his or her habitual residence without sufficient guarantees of stability in the new environment gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out those exceptions, also emphasises the margin of appreciation inherent in the judicial function.",
"36. In 2003 the HCCH published Part II of the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention’s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). The Guide to Good Practice specifies that delays in enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern, and recommends that States Parties ensure that there are simple and effective mechanisms to enforce orders for the return of children within their domestic systems, noting that the return must actually be effected and not just ordered (point 6.7 “Enforcement”).",
"B. The Convention on the Rights of the Child",
"37. The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows:",
"Preamble",
"“The States Parties to the present Convention,",
"...",
"Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,",
"Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,",
"...",
"Have agreed as follows:",
"...",
"Article 7",
"1. The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents.",
"...",
"Article 9",
"1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...",
"Article 14",
"1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.",
"2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.",
"...",
"Article 18",
"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.",
"...”",
"38. The concept of the child’s best interests, derived from the second principle of the Declaration on the Rights of the Child of 20 November 1959, was reproduced in 1989 in Article 3 § 1 of the Convention on the Rights of the Child:",
"“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”",
"39. In its General Comment No. 7 (2005) on Implementing child rights in early childhood, the Committee on the Rights of the Child wished to encourage recognition by States Parties that young children are holders of all rights enshrined in this Convention and that early childhood is a critical period for the realisation of these rights. The best interests of the child are examined, in particular, in section 13, which is worded as follows:",
"“13. Best interests of the child. Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children’s rights:",
"(a) Best interests of individual children. All decision-making concerning a child’s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children. States parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child’s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences;",
"...”",
"40. For a more in-depth discussion, see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49-55, ECHR 2010.",
"C. European Union law",
"41. The relevant provisions of the Charter of Fundamental Rights of the European Union provide:",
"Article 7 Respect for private and family life",
"“Everyone has the right to respect for his or her private and family life, home and communications.",
"Article 24 The rights of the child",
"1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.",
"2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.",
"3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”",
"42. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “the Brussels II bis Regulation”) reads, in particular, as follows:",
"“...",
"(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.",
"(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.",
"...”",
"D. Relevant Latvian law",
"1. The Constitution",
"43. The relevant provisions of the Constitution read as follows:",
"Article 89",
"“The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.”",
"Article 110",
"“The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence.”",
"2. The Latvian Civil Procedure Act",
"44. Section 644 19 of the Latvian Civil Procedure Act, as in force at the material time, regulates matters concerning the unlawful removal of children across borders into Latvia. It provides that the courts are to rule on any application of this type after a court hearing in which the parties participate and to which a representative of the Bāriņtiesa has been invited. In addition, the courts are to ascertain the point of view of the child if he or she is capable of formulating it.",
"45. In ruling on the application, the court may take any evidence of its own motion. It may use the most appropriate procedural means and the most rapid methods of establishing the facts, so that a decision can be reached within a period of six weeks after the submission of the application.",
"46. Where the court determines that the child has been unlawfully removed to or retained in Latvia and where one of the following conditions is met, the court orders the return of the child to the country of his or her residence:",
"(a) the period following the unlawful removal of the child to Latvia or detention in Latvia does not exceed one year from the time the relevant person or institution discovered the whereabouts of the child; or",
"(b) the period following the unlawful removal of the child to Latvia or detention in Latvia does exceed one year but the child has not adapted to life in Latvia.",
"47. Where the court determines that the child has been unlawfully removed to or retained in Latvia and where one of the following circumstances exists, it may decide not to permit the return of the child to the country of his or her residence:",
"(a) more than one year has passed since the relevant person or institution has discovered or had the practical possibility of discovering the whereabouts of the child, but during this period neither has brought proceedings before the relevant institution to seek the return of the child to the country of his or her residence;",
"(b) the child has adapted to life in Latvia and his or her return is not in the best interests of the child.",
"48. The above-mentioned paragraphs are applicable in so far as they comply with the Hague Convention and Regulation (EC) No 2201/2003 of the Council of the European Union.",
"E. Family Law Act 1975 of the Commonwealth of Australia",
"49. Section 61B defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.",
"50. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. It has effect subject to court orders.",
"51. Section 111B(4) provides as follows:",
"“For the purposes of the [Hague] Convention:",
"(a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and",
"(b) subject to any order of a court for the time being in force, a person:",
"(i) with whom a child is to live under a parenting order; or",
"(ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and",
"(c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and",
"(d) subject to any order of a court for the time being in force, a person:",
"(i) with whom a child is to spend time under a parenting order; or",
"(ii) with whom a child is to communicate under a parenting order;",
"should be regarded as having a right of access to the child.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"52. Before the Grand Chamber, the applicant claimed to have been a victim, on account of the decision by the Latvian courts to order the return of her daughter to Australia, of an infringement of her right to respect for her family life within the meaning of Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Applicability of Article 8",
"53. The Grand Chamber notes that the Government expressly indicated in the proceedings before it that they did not contest that the decisions by the Latvian courts ordering the applicant to send E. back to Australia amounted to interference with her right to respect for her family life as protected by Article 8 of the Convention.",
"54. The interference with the applicant’s right to respect for her private and family life found above is in breach of Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether the interference was “in accordance with the law”, pursued one or more legitimate aims as defined in that paragraph and was “necessary in a democratic society” to achieve them.",
"B. Whether the interference was justified",
"1. Legal basis",
"(a) The Chamber judgment",
"55. The Chamber held that the provisions of the domestic law and the Hague Convention indicated in a sufficiently clear manner that, in ascertaining whether the removal was wrongful within the meaning of Article 3 of the Hague Convention, the Latvian courts had had to decide whether it had been carried out in breach of the custody rights as attributed under Australian law, Australia being the State in which the child was habitually resident immediately prior to her removal. While noting that the Australian authorities had ruled on T.’s parental responsibility after the child’s removal, it observed that it had merely been confirmed, and not established, that the applicant and T. had enjoyed joint parental responsibility from her birth by virtue of the Australian Family Law Act. The Chamber further noted that the applicant had not been prevented from participating in the proceedings in Australia leading to the above-mentioned ruling or from submitting an appeal and, in addition, that she had not challenged before the national courts the evidence adduced to demonstrate that T. was the child’s father. The Chamber assumed that the Latvian court’s decision of 19 November 2008 ordering the child’s return to Australia, which had become enforceable on 26 January 2009, had been in accordance with the law within the meaning of Article 8 of the Convention.",
"(b) The parties’ submissions",
"(i) The applicant",
"56. Before the Chamber, the applicant maintained that the domestic courts had had no grounds for applying the provisions of the Hague Convention, since she had been raising her daughter as a single parent at the time of her departure for Latvia. She made no submissions to the Grand Chamber on this question.",
"(ii) The Government",
"57. The Government considered that the interference was indisputably “in accordance with the law”, given that it was based on the Hague Convention on the Civil Aspects of International Child Abduction.",
"(c) The Court’s assessment",
"58. According to the Court’s settled case-law, the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000 ‑ II; Slivenko v. Latvia [GC], no. 48321/99, § 100, ECHR 2003 ‑ X; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 341, ECHR 2012).",
"59. The Court observes that the decision to return the child to Australia was taken by the Riga Regional Court on the basis of the Hague Convention of 1980, a text signed and ratified by Latvia in 1982. Furthermore, the Latvian Civil Procedure Act, section 644 of which governs matters regarding the unlawful removal of children across borders into Latvia, makes its application conditional on express compliance with the Hague Convention, the Brussels II bis Regulation and the European Convention on Human Rights.",
"60. The applicant alleged that at the time of her departure from Australia she had been alone in exercising parental responsibility for her daughter.",
"61. The Court notes, however, that that issue was expressly examined by the Latvian courts dealing with the application for the child’s return. Those courts, while stating that they could neither interpret nor alter it, applied the Australian Family Court’s decision of 6 November 2008, which confirmed T.’s paternity and the existence of joint parental responsibility for the child from her birth. In consequence, both the District Court and the Riga Regional Court found that T.’s application complied with the Hague Convention in this respect.",
"62. Moreover, the Court considers that it is not for it to decide whether the international removal of a child was or was not “unlawful” within the meaning of Article 3 of the Hague Convention. Indeed, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I): it is for the domestic courts to resolve problems of interpretation and application of domestic legislation, and of rules of general international law and international treaties (see Maumousseau and Washington v. France, no. 39388/05, § 79, 6 December 2007, and Neulinger and Shuruk, cited above, § 100). In the instant case, the applicant, in addition to failing to exercise the available remedies to challenge the Australian decision confirming T.’s paternity and the existence of joint parental responsibility for the child at the time of her departure from Australia, which was a direct precondition for application of the Hague Convention, has not shown either that it was impossible for her to challenge the Australian decision or how the domestic courts had erred in that respect.",
"63. In conclusion, the Court considers that the impugned interference was in accordance with the law within the meaning of Article 8 of the Convention.",
"2. Legitimate aim",
"(a) The Chamber judgment",
"64. The Chamber considered that the interference was intended to protect the rights of T. and of the child, which was a legitimate aim for the purposes of Article 8 § 2 of the Convention.",
"(b) The parties’ arguments",
"(i) The applicant",
"65. The applicant did not express a view on this point.",
"(ii) The Government",
"66. According to the Government, the interference pursued a legitimate aim, namely, the protection of the rights and freedoms of T. and of his daughter.",
"(c) The Court’s assessment",
"67. The Grand Chamber shares the Chamber’s opinion that the decision to order the child’s return had the legitimate aim of protecting the rights and freedoms of T. and of E., which, moreover, has not been challenged by the parties in these proceedings.",
"3. Necessity of the interference in a democratic society",
"(a) The Chamber judgment",
"68. With regard to whether the interference was “necessary in a democratic society”, the Chamber considered, while noting that it was not its task to take the place of the domestic authorities in determining the existence of a grave risk within the meaning of Article 13 (b), that it had to ascertain whether, in applying and interpreting the Hague Convention, the courts had complied with the requirements of Article 8, particularly in the light of the principles established by the Court in Neulinger and Shuruk (cited above). Turning its attention firstly to the psychologist’s report, drawn up at the mother’s request following the first-instance judgment, the Chamber found that the Regional Court had dismissed it, on the ground that it concerned the question of custody of the child and that the latter would be protected in accordance with the Australian legislation. In the Chamber’s opinion, although the failure to question the child did not raise an issue, given her age, the Regional Court ought nonetheless to have examined the conclusions of the psychological assessment and the objections raised by the Bāriņtiesa; moreover, there had been nothing to prevent the court from ordering a psychological report of its own motion.",
"69. The Chamber further indicated that the courts should also have assessed whether there were other sufficient safeguards to ensure that the return took place in the best possible conditions for the child, particularly with regard to her material well-being in Australia, and the possibility for the applicant to follow her daughter and to maintain contact with her.",
"70. While observing that the Latvian courts’ decision in this case contrasted with the approach taken in other Hague Convention proceedings in Latvia (see Šneersone and Kampanella v. Italy, no. 14737/09, § 94, 12 July 2011), and having both dismissed the Government’s argument that the applicant had failed to cooperate and noted the traumatic manner in which the decision had been executed, the Chamber concluded that an in-depth examination of the entire family situation and of a whole series of factors had been absent from the Latvian courts’ approach, therefore rendering the interference disproportionate within the meaning of Article 8.",
"(b) The parties’ submissions",
"(i) The applicant",
"71. The applicant considered the Chamber judgment as an exemplary text for assisting domestic authorities in ascertaining the best interests of the child. She noted that, while the Government had expressed regret in their request for referral to the Grand Chamber that the Chamber had not had available to it all the documents in the case file as examined by the domestic courts, it had been their responsibility to submit those documents. She argued that the best interests of the child had not been the goal of the domestic authorities, and considered that psychological reports were the only method of determining the child’s best interests; in this case, however, the domestic courts had refused to examine the psychological report submitted by her, thus violating Article 12 of the International Convention on the Rights of the Child (hearing of the child, either directly or through a representative or appropriate body). She emphasised that in determining the “best interests”, consideration was generally given to a number of factors related to the child’s circumstances and to the circumstances and capacity of the child’s potential carers, with the child’s safety and well-being as the paramount concern.",
"72. The applicant added that, in applying to the Court, her main goal was to challenge the domestic courts’ position in various cases relating to the Hague Convention and to demonstrate the necessity of ensuring the best interests of the child.",
"(ii) The Government",
"73. The Government noted that the Court imposed a number of obligations on the domestic authorities, and in particular: ensuring that the parents were involved in the decision-making process to a degree sufficient to provide them with protection of their interests ( Iosub Caras v. Romania, no. 7198/04, § 41, 27 July 2006); preventing further harm to the child or prejudice to the interested parties, as stipulated by Article 7 of the Hague Convention (ibid., § 34, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000-I); ensuring urgent handling of proceedings relating to the return of an abducted child, including enforcement of the decisions taken (see Carlson v. Switzerland, no. 49492/06, § 69, 6 November 2008); and providing redress to the requesting parent in the event of failure to comply with the six-week deadline provided for in Article 11 of the Hague Convention (ibid., § 55).",
"74. They considered that these principles should be applied in a manner that would ensure to the maximum extent a balance between the rights of each parent and of the child. Nonetheless, they noted the difficulty of the domestic authorities’ task when faced with the international abduction of a child, which did not always allow for protection of the best interests of all parties, and especially those of the child, each party having a different, if not contradictory, definition from that of the others. They further insisted on the clear distinction to be drawn between return proceedings and custody proceedings.",
"75. The Government considered that the domestic authorities enjoyed a margin of appreciation in applying those principles to the circumstances of each case. The Court’s task was not to analyse every detail of the domestic proceedings, but to review whether the decision-making process, seen as a whole, had provided the individuals concerned with the requisite protection of his or her interests (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 187, 27 September 2011), since the Court was not a court of fourth instance. Consequently, it could only be otherwise if the shortcomings observed had been decisive for the outcome of the case (see Broka v. Latvia, no. 70926/01, §§ 25-26, 28 June 2007).",
"76. In the instant case, they were of the opinion that the domestic authorities had complied with the above principles and had conducted an “in-depth examination of the entire family situation and of a whole series of factors” (see Neulinger and Shuruk, cited above, § 139), but that the examination of the overall family situation had to differ depending on the case, depending on the existence or not of prima facie concerns or at least of reasonable doubts. Moreover, the risk provided for in Article 13 (b) had to be “grave”, in addition to the fact that the child’s best interests also required expeditious proceedings.",
"77. The Government stated that the request submitted by the Australian authorities to the Latvian authorities on 15 September 2008 certified that T. had joint parental authority for the child and that, contrary to the applicant’s submissions, the decision of 6 November 2008 did not confer this right on him, but confirmed its existence at the time of his daughter’s departure from Australia. Both the Australian and Latvian courts had established that T. effectively exercised his parental responsibilities, that there were sufficient grounds to presume that T. was the child’s biological father, and that the applicant, for her part, had made false statements to the authorities in order to obtain advantages.",
"78. They pointed out that the psychological report had been drawn up on a private basis at the applicant’s request, and that the Bāriņtiesa was not a judicial institution. Notwithstanding the dismissal of the psychologist’s report and the observations from the Bāriņtiesa, the courts had examined the family situation in the light of the evidence available to them, which was an inherent part of their jurisdiction, there being nothing in the Court’s case-law to call into question that power. The Latvian courts had found that the applicant’s departure from Australia with her daughter had been motivated solely by her personal disagreements with T. and that there was no apparent risk of harm to the child in the event of return; it followed that the Latvian authorities had not applied the Hague Convention automatically or mechanically, in disregard of the principles established by Article 8 of the Convention.",
"79. The Government emphasised that “the understanding and cooperation of all concerned are always important ingredients” in evaluating the individual circumstances of a case (see Maumousseau and Washington, cited above, § 83, and Neulinger and Shuruk, cited above, § 140). They considered, however, that the applicant had demonstrated a lack of cooperation with the Australian and Latvian authorities by ignoring the invitation to take part in the proceedings before the Australian court, by preventing the representatives of the Bāriņtiesa from assessing her living conditions with her daughter in Latvia, by hindering contacts between T. and his daughter, and by her extremely aggressive conduct towards T. during the proceedings.",
"80. They also considered that the courts had been correct in dismissing the question of the child’s integration into her new environment, given that she had spent only a few months in Latvia.",
"81. They noted that the courts had not ordered the child’s return to her father, but to Australia, thus drawing a clear distinction between the return of the child and the issue of her custody, an approach that had been endorsed by the Court (see M.R. and L.R. v. Estonia (dec.), no. 13420/12, §§ 47-48, 15 May 2012, and Tarkhova v. Ukraine (dec.), no. 8984/11, 6 September 2011). In any event, T.’s financial situation was not such as to prevent him from caring for his daughter.",
"82. The Government emphasised the need to distinguish the issue of the applicant’s relationship with the child, and the risk of this relationship being weakened in the event of return, from the question of a risk to the child’s fundamental interests within the meaning of Article 13 (b) of the Hague Convention. As an Australian citizen, the applicant was not faced by insurmountable difficulties if she returned to Australia, since she enjoyed the full spectrum of fundamental rights, in contrast to the applicants in Neulinger and Shuruk (cited above). In the present case, both the child and the mother had Australian citizenship; moreover, the mother had access to the labour-market, given that she had found a job since her return, and could have access to social security benefits. There was no history of family violence or abuse of authority on the part of T., whereas the applicant had demonstrated a lack of cooperation and an aggressive attitude. Lastly, the Government drew the Court’s attention to the fact that they could not be held responsible for the decisions taken by the Australian authorities (they referred to M.R. and L.R. v. Estonia, cited above).",
"(c) Third-party interveners",
"(i) The Finnish Government",
"83. The Finnish Government noted that the 1980 Hague Convention was based on the best interests of the child and was aimed at protecting the child from the detrimental effects of the abduction, while laying down a number of grounds for refusing a return. They emphasised that Article 11 of the Brussels II bis Regulation, applicable within the European Union, narrowed down even further the exceptions to the child’s return, and reflected the view of the European Union member States that the effectiveness of the Hague Convention served the best interests of children and families. They further referred to the United Nations Convention on the Rights of the Child.",
"84. With regard to the instant case, they considered, in particular, that the obligation on the domestic courts deciding on a child’s return to conduct an “in-depth examination of the entire family situation”, as the Chamber required in its judgment, contradicted the Hague Convention, which provided that matters concerning custody or residence of the child came under the jurisdiction of the courts of the child’s place of habitual residence.",
"85. Moreover, they considered that the domestic courts were best placed to assess the child’s best interests: the Court ought not to take their place, but merely verify whether the requirements of Article 8 had been satisfied. Requiring such an in-depth examination would ultimately level out the differences between the procedure for return and custody proceedings, which would frustrate the meaning of the Hague Convention. They emphasised that the latter text provided for exceptions to the return of the child in Articles 12, 13 and 20.",
"86. With regard to the psychological report to which the domestic courts had not, according to the Chamber judgment, attached sufficient importance, the Finnish Government noted that it had been submitted by the mother to demonstrate the existence of a grave risk in the event of return within the meaning of Article 13 of the Hague Convention. In finding those allegations unfounded, the appeal court had dismissed them under Article 13 of the Hague Convention, within the margin of discretion permitted by and in line with the objective pursued by the Hague Convention. In the light of these arguments, and referring also to the dissenting opinion of Judges Myjer and López Guerra annexed to the Chamber judgment, the Finnish Government were of the view that there had not been a violation of Article 8 of the Convention in this case.",
"(ii) The Czech Government",
"87. The Czech Government considered that the Grand Chamber’s forthcoming decision would be of considerable importance not only for the respondent State and the Convention system, but also for the operation of the Hague Convention and for countries outside the European continent. They considered that the Hague Convention provided an appropriate procedure, given the serious consequences of abduction for both the child and the parent complaining of the abduction. In order to preclude the harmful effects of abduction, rapid proceedings and a prompt return were required, the Hague Convention being based on the assumption that the restoration of the status quo that existed prior to the unlawful removal was the best starting-point to ensure protection of the rights in question. They also referred, in a similar vein, to the Brussels II bis Regulation, applicable within the European Union.",
"88. The Czech Government further stated that the Hague Convention had explicitly left the issue of custody to the courts of the country of the child’s habitual residence and that refusal of the child’s return was provided for in cases of a grave risk to the child. They considered that the development of the Court’s case-law in this field, the main points of which they set out, undermined the principle of subsidiarity and ran contrary to the aim pursued by the Hague Convention. An “in-depth examination of the entire family situation” amounted to examining the issue of custody itself, and thus slowing down the proceedings, even though the passage of time could play a significant role where the child was heard in the proceedings. In addition, basic fairness should mean that the abducting parent, who was required to prove in a short period of time the existence of a grave threat in the event of the child’s return, was deprived of any procedural advantage rather than having access to the courts of the country of his or her choice to determine the merits of a custody dispute.",
"89. The Czech Government noted, in particular, a conflict between the requirement of speed laid down in the Hague Convention and the high standard of proof set out in the Court’s recent case-law. Assessment of the best interests of the child differed significantly depending on whether it was carried out in the course of return proceedings before a court in the country to which the child had been taken or whether it took place in the context of custody proceedings by another court in the child’s country of habitual residence. As those States who were party to both the Convention and the Hague Convention were required to comply with their obligations in respect of both of these texts, they required consistent interpretation and application which reconciled them, it being noted that the Brussels II bis Regulation was even stricter than the Hague Convention. The database created by the Permanent Bureau of the Hague Conference on Private International Law (INCADAT) showed that national courts tended to impose strict application of the Hague Convention, in compliance with its purpose. The Czech Government, arguing for a return to the principle of subsidiarity, invited the Grand Chamber to overturn the Chamber judgment and to set limits on the examination of the family situation by the court deciding on an application for a child’s return.",
"(iii) Reunite International Child Abduction Centre (“Reunite”)",
"90. Reunite noted that the Hague Convention had been designed to facilitate the protection of children who had been subjected to a wrongful cross-border abduction, on the basis of the assumption that, with certain exceptions, the child’s prompt return was in his or her best interests. Reunite entirely endorsed the Court’s summary of the aims and objectives of the Hague Convention in its judgment in Maumousseau and Washington (cited above, § 69). It noted in particular that the Hague Convention, which is enormously successful in combating international child abduction, aimed to protect not adults but children. It provided for a limited number of exceptions to the child’s prompt return, leaving the issues of the child’s long-term welfare to the courts in the child’s country of habitual residence. The latter thus had the task of conducting an in-depth examination of the situation, in the child’s interests, unlike the courts in the State to which the child had been abducted, which, when examining an application for return, were required to make a decision following an examination limited to the framework laid down in the Hague Convention.",
"91. While observing that the Court, in its case-law, had identified a number of factors central to the proper functioning of the Hague Convention, Reunite noted that recent developments suggested that courts were being required to conduct a fuller examination when determining the exceptions to the child’s return. It therefore invited the Grand Chamber to clarify the question of the requirement for an in-depth examination of the entire family situation in the context of the Hague Convention, and to make it clear that this concerned only the compatibility of a return with the Convention and did not call into question the exclusive jurisdiction of the courts in the country of habitual residence to rule on the merits.",
"(d) The Court’s assessment",
"(i) General principles",
"92. The Court considers it appropriate to reiterate at the outset certain principles which must guide it in its examination of the case, and to which it drew attention in its recent judgment in Nada v. Switzerland ([GC], no. 10593/08, § 167, ECHR 2012), in the following terms:",
"“168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention (see Bosphorus [ Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, no. 45036/98], § 153[, ECHR 2005-VI], and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports [ of Judgments and Decisions ] 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein).",
"169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of ‘any relevant rules of international law applicable in the relations between the parties’, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk [, cited above], § 131 ...; Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18).",
"170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al ‑ Saadoon and Mufdhi, cited above, § 126; Al ‑ Adsani, cited above, § 55; and [ Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99], §§ 55-57[, ECHR 2001-XII]; see also the references cited in the International Law Commission study group’s report entitled ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’ ...).”",
"93. As regards, more specifically, the question of the relationship between the Convention and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, the Court reiterates that in the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention (see Ignaccolo-Zenide, cited above, § 95; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003 ‑ V; and Maumousseau and Washington, cited above, § 60 ) and those of the Convention on the Rights of the Child of 20 November 1989 (see Maire v. Portugal, no. 48206/99, § 72, ECHR 2003-VII; Maumousseau and Washington, cited above; and Neulinger and Shuruk, cited above, § 132), and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008).",
"94. This approach involves a combined and harmonious application of the international instruments, and in particular in the instant case of the Convention and the Hague Convention, regard being had to its purpose and its impact on the protection of the rights of children and parents. Such consideration of international provisions should not result in conflict or opposition between the different treaties, provided that the Court is able to perform its task in full, namely “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention (see, among other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 93, Series A no. 310), by interpreting and applying the Convention’s provisions in a manner that renders its guarantees practical and effective (see, in particular, Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Nada, cited above, § 182).",
"95. The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see paragraph 35 above).",
"96. The Court reiterates that there is a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see paragraphs 37-39 above).",
"97. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)). The Court further notes that the European Union subscribes to the same philosophy, in the framework of a system involving only European Union member States and based on a principle of mutual trust. The Brussels II bis Regulation, whose rules on child abduction supplement those already laid down in the Hague Convention, likewise refers in its Preamble to the best interests of the child (see paragraph 42 above), while Article 24 § 2 of the Charter of Fundamental Rights emphasises that in all actions relating to children the child’s best interests must be a primary consideration (see paragraph 41 above).",
"98. Thus, it follows directly not only from Article 8 of the Convention but also from the Hague Convention itself, given the exceptions expressly enshrined therein to the principle of the child’s prompt return to his or her country of habitual residence, that such a return cannot be ordered automatically or mechanically (see Maumousseau and Washington, cited above, § 72, and Neulinger and Shuruk, cited above, § 138).",
"99. As the Court reiterated in Neulinger and Shuruk (cited above, § 140), the obligations incumbent on States in this connection were defined in Maumousseau and Washington (cited above, § 83).",
"100. The child’s best interests do not coincide with those of the father or the mother, except in so far as they necessarily have in common various assessment criteria related to the child’s individual personality, background and specific situation. Nonetheless, they cannot be understood in an identical manner irrespective of whether the court is examining a request for a child’s return in pursuance of the Hague Convention or ruling on the merits of an application for custody or parental authority, the latter proceedings being, in principle, unconnected to the purpose of the Hague Convention (Articles 16, 17 and 19; see also paragraph 35 above).",
"101. Thus, in the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a “grave risk” (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation, which, however, remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; and also Maumousseau and Washington, cited above, § 62, and Neulinger and Shuruk, cited above, § 141 ).",
"102. Specifically, in the context of this examination, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts (see, for example, Hokkanen, cited above, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001 ‑ VII). Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005 ‑ XIII; Maumousseau and Washington, cited above; and Neulinger and Shuruk, cited above, § 139).",
"103. In this connection, the Government considered, in particular, that the overall family situation had to be examined according to the circumstances of each case (see paragraph 75 above). For their part, the third-party interveners either considered that the requirement of an “in-depth examination of the entire family situation” (see Neulinger and Shuruk, cited above) conflicted with the Hague Convention (see paragraphs 84 and 88 above), or asked the Court to clarify this question (see paragraph 91 above) and to set limits on the examination of the family situation by the court deciding on an application for a child’s return (see paragraph 89 above).",
"104. On this point, the Court observes that the Grand Chamber judgment in Neulinger and Shuruk (cited above, § 139) to which a number of subsequent judgments refer (see, inter alia, Raban v. Romania, no. 25437/08, § 28, 26 October 2010; Šneersone and Kampanella, cited above, § 85; and, more recently, the decision in M.R. and L.R. v. Estonia, cited above, § 37) may and has indeed been read as suggesting that the domestic courts were required to conduct an in-depth examination of the entire family situation and of a whole series of factors. That wording had already been used by a Chamber in Maumousseau and Washington (cited above, § 74), such an in-depth examination having, in fact, been carried out by the national courts.",
"105. Against this background the Court considers it opportune to clarify that its finding in paragraph 139 of Neulinger and Shuruk does not in itself set out any principle for the application of the Hague Convention by the domestic courts.",
"106. The Court considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk, cited above, § 133).",
"107. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.",
"108. Furthermore, as the Preamble to the Hague Convention provides for children’s return “to the State of their habitual residence”, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place.",
"(ii) Application of these principles to the present case",
"109. The Court, which must make its assessment in the light of the situation existing at the time of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008), notes firstly that, unlike in Neulinger and Shuruk (cited above), the circumstances of which were in any event particularly unusual, especially on account of the very considerable passage of time involved, only a short period had elapsed in this case by the time the Latvian authorities received the application under the Hague Convention. The child had spent the first years of her life in Australia and arrived in Latvia aged three years and five months. The application for return was submitted to the central authority two months after the departure from Australia, and the judgments of the District Court and of the Riga Regional Court were delivered four and six months respectively after the applicant and her daughter had arrived in Latvia. Finally, T. encountered E. and began the return journey with her to Australia on 14 March 2009. It follows that not only the submission of the return application to the Latvian authorities, but also the domestic proceedings and the child’s return took place within the period of less than one year referred to in the first paragraph of Article 12 of the Hague Convention, which provides for an immediate return in such cases.",
"110. Moreover, the Court notes that the domestic courts, at first instance and on appeal, were unanimous as to the response to be given to the application for return submitted by T. By a judgment of 19 November 2008, the District Court, which ruled after a hearing attended by both parents, held that the Hague Convention was applicable and granted T.’s application, ordering the child’s immediate return to Australia. On 26 January 2009, after a hearing which was also held in the presence of both parents, the Riga Regional Court upheld that judgment.",
"111. With regard more specifically to the reasoning given by the Latvian courts, the Court notes that at first instance the court dismissed, in a reasoned manner, the applicant’s objections to the child’s return on the basis of Article 13 of the Hague Convention, notably after examining the evidence submitted by the parties, including the photographs and copies of e-mails between the applicant and T.’s relatives, as well as witness statements submitted by the applicant. The court, having refused however to request information from the Australian authorities about T.’s previous convictions and the charges allegedly brought against him, ultimately dismissed the allegation of a risk of psychological harm to the child in the event of her return, finding that the applicant had failed to substantiate it (see paragraph 21 above).",
"112. The Court observes that the situation was subsequently presented differently before the Riga Regional Court, the applicant having submitted, in the context of her appeal, a certificate prepared at her request by a psychologist on 16 December 2008, that is, after the first-instance judgment. This document indicated that, while the child’s young age prevented her from expressing a preference as to her place of residence, an immediate separation from her mother was to be ruled out on account of the likelihood of psychological trauma (see paragraph 22 above).",
"113. Yet, while the District Court, examining the request for a stay of execution of the return order, took account of that certificate in ordering, in the child’s interests, a stay of execution of the return order pending the outcome of the appeal proceedings (see paragraph 24 above), the Regional Court refused to take it into consideration.",
"114. The Court notes that the appeal court considered that the findings of the psychological report concerned the merits of the custody issue and could not therefore serve as evidence in ruling on the question of the child’s return that was before it. In so doing, and in view of this reasoning, the Riga Regional Court refused to examine the conclusions of the psychological report in the light of the provisions of Article 13 (b) of the Hague Convention, even though it was directly linked to the best interests of the child in that it drew attention to a risk of psychological trauma in the event of immediate separation from her mother (see, conversely, Maumousseau and Washington, cited above, § 63).",
"115. Article 8 of the Convention imposed a procedural obligation on the Latvian authorities, requiring that an arguable allegation of “grave risk” to the child in the event of return be effectively examined by the courts and their findings set out in a reasoned court decision (see paragraph 107 above).",
"116. Under Article 13, first paragraph, (b) of the Hague Convention, the courts examining the return request are not obliged to grant it “if the person, institution or other body which opposes its return establishes that ... there is a grave risk”. It is the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. In the instant case, it was therefore for the applicant to provide sufficient evidence to substantiate her allegations, which, moreover, had to concern the existence of a risk specifically described as “grave” by Article 13, first paragraph, (b). Furthermore, the Court notes that while the latter provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13, first paragraph, (b) concerns only the situations which go beyond what a child might reasonably bear. The applicant fulfilled her obligation by submitting a psychologist’s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother. Furthermore, she had also submitted that T. had criminal convictions and referred to instances of ill-treatment by him. It was therefore for the Latvian courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a “grave risk” (see B. v. Belgium, no. 4320/11, §§ 70-72, 10 July 2012).",
"117. The Court accordingly considers that the refusal to take into account such an allegation, substantiated by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could disclose the possible existence of a grave risk within the meaning of Article 13, first paragraph, (b) of the Hague Convention, was contrary to the requirements of Article 8 of the Convention. The non-adversarial nature of the psychological report did not suffice to absolve the courts from their obligation to examine it effectively, especially as the Regional Court’s judicial powers would have enabled it to submit the document for cross-examination by the parties, or even to order a second expert report of its own motion, as permitted by Latvian law (see paragraph 45 above). The issue of whether it was possible for the mother to follow her daughter to Australia and to maintain contact with her should also have been dealt with. The Court further emphasises that, in any event, since the rights safeguarded by Article 8 of the Convention, which is part of Latvian law and directly applicable, represent “fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” within the meaning of Article 20 of the Hague Convention, the Regional Court could not dispense with such a review in the circumstances of this case.",
"118. As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case.",
"119. In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, the Riga Regional Court having failed to carry out an effective examination of the applicant’s allegations under Article 13 (b) of the Hague Convention.",
"120. It follows that there has been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"121. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"122. As the applicant has made no claim in respect of pecuniary or non-pecuniary damage, the Court considers that no award should be made under this head.",
"B. Costs and expenses",
"123. The applicant claimed 1,996.91 Latvian lati (2,858.84 euros (EUR)) for the costs and expenses incurred before the Grand Chamber and submitted a number of documents in support of that claim.",
"124. The Government considered that the applicant’s claims were neither justified nor reasonable, with the exception of a sum of EUR 485.19 which related to costs arising from the journey by the applicant’s representative to take part in the hearing before the Court.",
"125. The Court reiterates that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the present case, and having regard to the information in its possession and to its case-law, the Court considers it reasonable to award the applicant the sum of EUR 2,000 in respect of the costs and expenses incurred in the proceedings before it.",
"C. Default interest",
"126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
55 | O.C.I. and Others v. Romania | 21 May 2019 (Committee judgment) | After spending the summer holidays in Romania in 2015, the first applicant, a Romanian national, decided not to go back to her husband in Italy with their two children. Before the Court, the first applicant and her children complained about the order to return the children to Italy. They alleged in particular that the Romanian courts had failed to take into account the grave risk of mistreatment they faced at the hands of their father, which was one of the exceptions under the Hague Convention of 25 October 1980 to the principle that children should be returned to their habitual place of residence. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Romanian courts had failed to give enough consideration to the grave risk of the applicant children being subjected to domestic violence when ordering their return to their father in Italy, which was one of the exceptions to the principle under international law that children should be returned to their habitual place of residence. The Court noted in particular that, even if there was mutual trust between Romania and Italy’s child-protection authorities under EU law, that did not mean that Romania had been obliged to send the children back to an environment where they were at risk, leaving it up to Italy to deal with any abuse if it reoccurred. | International child abductions | Applications lodged by the abducting parent | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background of the case",
"6. The first applicant, Ms O.C.I., was born in 1978 and lives in Tulcea. In 2005 she married P.L.R., an Italian national. The couple lived together in Italy, where O.C.I. gave birth to their children: the second applicant, P.A.R., in 2008, and the third applicant, N.A.R., in 2010.",
"7. On 12 June 2015 the family went to Romania for the summer holidays. A few days later P.L.R. returned to Italy, expecting to go back to collect the applicants at the end of summer. On 25 June 2015 the first applicant informed her husband that she and the children would no longer return to Italy. She said that she saw no future for them there. Moreover, she told P.L.R. that he was a bad father who mistreated his children.",
"8. On 14 September 2015 P.L.R. lodged a criminal complaint against the first applicant in Italy for child abduction in a foreign country.",
"B. Proceedings for the return of the children to Italy",
"9. On 29 September 2015 P.L.R. applied to the Bucharest County Court for the return of the second and third applicants to Italy, the place of their habitual residence. He relied on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and those of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels II bis Regulation”). He contended that he had not agreed that the second and third applicants would remain permanently in Romania. In his view, the mother had unilaterally changed the children ’ s residence which, he argued, constituted wrongful retention.",
"10. The first applicant opposed the action. She alleged that P.L.R. was a violent father who often got angry with is children when they did not obey him. According to the first applicant, P.L.R. would beat up the children, bruising their faces and giving them nose bleeds. He would pull them by the ears, slap their faces and hit their bottoms. Sometimes he would undress them and beat their bodies with hard objects. He would also call them names and humiliate them. The violence had worsened in recent years and the first applicant had become a target as well. She had tried to intervene but to no avail. She had encouraged her husband to seek medical help for his behaviour, but he had refused. Eventually, the first applicant had decided to find refuge with the children in Romania. She submitted as evidence several recordings of discussions between the applicants and P.L.R. during their common life in Italy, showing episodes similar to those described above.",
"11. The first applicant further explained that the children had become integrated in their new environment. They attended school in Romania and had made friends. They participated in after-school activities that they had always wanted to try but had in the past been denied by their father. She also explained that the children refused to speak with their father. They feared going back to Italy and being again subject to abuse.",
"12. The County Court heard evidence from the parents (hearing of 27 September 2015) and interviewed the children in the presence of a psychologist (on 16 November 2015).",
"13. In a judgment of 18 January 2016 the Bucharest County Court allowed the application for the return of the children to their habitual residence in Italy. It found that there was nothing to oppose the children ’ s return to Italy. The court concluded that the mother had influenced the children against their father. It also considered that her decision to leave Italy had been made because of marital problems and because of her own dissatisfaction. As for the allegations that the children ran a grave risk of being exposed to physical or psychological harm at their father ’ s hands, it found as follows:",
"“The evidence in the file proves without doubt that the father used physical force and a raised voice to discipline his children. [P.L.R.] confirmed this in his statement before the court.",
"The child has the right to respect for his dignity, which entails prohibition under any circumstances of any act of physical or psychological violence against the child. It is therefore evident that nothing can justify a departure from this norm.”",
"14. The first applicant appealed, and in a final decision of 30 March 2017 the Bucharest Court of Appeal upheld the order to return the children. The Court of Appeal considered that the existence of criminal proceedings against the first applicant in Italy did not constitute grounds for refusing the return. In fact, the Court reasoned, in accordance with the European arrest warrant procedure, a criminal sentence would have the same effect regardless of whether the first applicant lived in Romania or Italy.",
"The Court of Appeal reassessed the allegations of grave risk for the children in Italy and concluded as follows:",
"“... it cannot be inferred that occasional acts of violence such as those which were proved by the recordings adduced in the file, would reoccur often enough to pose a grave risk ... under Article 13 § 1 (b) of the Hague Convention ...",
"... it is reasonable to expect that the Italian authorities would give the assurance that they would take the measures required by the [Brussels II bis Regulation], so that the aim of the Hague Convention would be observed, namely that a child is not removed or retained in the name of rights linked to his person which are to a larger or lesser extent debatable. It is also reasonable to suppose that if after the decision is rendered the children are exposed to a risk, [the Italian authorities] would take such requisite measures, if the risk was brought to their attention and supported by evidence.”",
"C. Enforcement of the return order",
"15. On 11 July 2017 P.L.R. started enforcement proceedings through the offices of a bailiff in Romania.",
"16. On 28 September 2017 the bailiff together with P.L.R. and a psychologist from the Bucharest Directorate General for Social Welfare and Child Protection (“the child - protection authority”) spoke with the children, with their mother ’ s permission. It was noted that the children refused to go back to Italy with their father. Consequently, the child-protection authority sought a court order for a three-month psychological counselling programme for the children. On 7 December 2017 the Tulcea District Court granted the request. The enforcement proceedings were stayed during that period.",
"17. A report of 29 May 2018 on the results of the counselling stated that the children refused contact with their father despite the first applicant ’ s efforts to encourage that relationship. Therapy for the children was recommended.",
"18. On 29 March 2018 P.L.R. sought enforcement in Romania of a Parma District Court order granting him sole parental authority. On 10 July 2018 the first applicant lodged an objection to the enforcement. On 13 July 2018 the court stayed the enforcement proceedings, at the first applicant ’ s request, on the grounds that the children ’ s refusal to go back to Italy with their father had already been established.",
"19. It appears from the parties ’ observations that at least on 26 September 2018 (the date of the most recent relevant information) the applicants were still living in Romania."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW",
"20. The relevant provisions of the domestic law concerning implementation of the Hague Convention are presented in Ferrari v. Romania (no. 1714/10, §§ 25-28, 28 April 2015).",
"21. The relevant domestic law concerning prohibition of corporal punishment and the child-protection authority ’ s duties in the matter are described in D.M.D. v. Romania (no. 23022/13, §§ 21-22, 3 October 2017). In the same judgment, the relevant international standards concerning domestic abuse against children are also summarised (ibid, §§ 25-35).",
"22. The relevant provisions of the international instruments applicable in the present case are presented in X v. Latvia ( [GC] no. 27853/09, §§ 34 -42, ECHR 2013), notably: the relevant articles of the Hague Convention; excerpts of the Explanatory Report on the Hague Convention prepared by Elisa Pérez-Vera and of the Guide to Good Practice under the Hague Convention; the relevant provisions of the United Nations Convention on the Rights of the Child and General Comment No. 7 (2005) on implementing child rights in early childhood; those of the Charter of Fundamental Rights of the European Union; and those of the Brussels II bis Regulation.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION",
"23. The applicants complained that their right to respect for their family life, protected by Article 8 of the Convention, had been infringed, in so far as the courts ordering the return of the second and third applicants to Italy had failed to take into account the grave risk that they would be subject to physical or psychological harm at the hands of their father. For the same reasons, the applicants considered that, in failing to protect the children against the risk of abuse, the authorities had breached their positive obligations enshrined in Article 3 of the Convention.",
"24. Article 3 of the Convention reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"25. Article 8 of the Convention reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ observations",
"(a) The applicants",
"27. The applicants argued that the Government had a positive obligation to secure a safe environment for the children, free from domestic violence and corporal punishment. They further contended that the best interests of the children to grow up in a safe environment should override that of the father to be with his children.",
"28. The applicants considered that the domestic courts had not examined in depth the family situation, and consequently had not interpreted correctly the best interests of the children. In particular, the domestic courts had condoned abuse of “average intensity” and transferred all responsibility for the children ’ s well - being to the Italian authorities.",
"29. The applicants argued that the domestic authorities had failed to take into account that the children would suffer additional psychological trauma if returned to their tormentor. They explained that having spent three years in Romania, they had become integrated in their new environment. Moreover, the first applicant faced criminal investigations in Italy which constituted additional stress for the applicants.",
"(b) The Government",
"30. The Government reiterated that the proceedings for the return of the children, which were at the heart of the applicants ’ complaint, were restricted to solely verifying the admissibility of the request, the illicit nature of the retention and the existence of any of the exceptions provided for by the Hague Convention. They were not meant to replace the proceedings concerning attribution of parental authority and custody of the children.",
"31. The Government admitted that there had been an interference with the applicants ’ right to respect for their family life but considered that that interference was provided for by law, pursued a legitimate aim and was proportionate to that aim. They argued that the first applicant had had the opportunity to participate fully in the proceedings, which had been adversarial. Moreover, she had had the opportunity both to present evidence and to express her position on the evidence produced by the other party.",
"32. The Government further averred that the domestic courts had examined the allegations of a “grave risk” as defined by the Hague Convention. Those courts had neither tolerated nor accepted domestic violence and had moreover reiterated in their decisions that emotional abuse of children was prohibited. Their decision to return the children to their father had been based on the assumption that the Italian system was equally capable of protecting the children ’ s rights.",
"33. Lastly, the Government pointed out that the enforcement of the return order had been stayed by the domestic courts, in order to allow the children to undergo psychological counselling in Romania.",
"2. The Court ’ s assessment",
"(a) General principles",
"34. The relevant principles regarding the interference with the right to respect for family life, as well as the State ’ s positive obligations under Article 8 of the Convention in cases concerning the return of a child under the Hague Convention, are summarised in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013).",
"35. In particular, the Court reiterates that a child ’ s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see Anghel v. Italy, no. 5968/09, § 79, 25 June 2013). The factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. These factors must be evaluated in the light of Article 8 of the Convention (see X v. Latvia, § 106). Moreover, the best interests of the child must be of primary consideration ( ibid., §§ 95-96). Lastly on this point the Court reiterates that the Hague Convention has to be interpreted and applied in the context of the Brussels II bis Regulation, when both States are parties to this instruments (see, mutatis mutandis, K.J. v. Poland, no. 30813/14, § 58, 1 March 2016)",
"36. In addition, the Court reiterates its finding in D.M.D. v. Romania (no. 23022/13, § 51, 3 October 2017) that respect for children ’ s dignity cannot be ensured if the domestic courts were to accept any form of justification of acts of ill- treatment, including corporal punishment. The Court considered that Member States should strive to expressly and comprehensively protect children ’ s dignity which in turn requires in practice an adequate legal framework affording protection of children against domestic violence, including, inter alia, reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge (ibid.).",
"(b) Application of those principles to the present case",
"37. The Court notes that the Government expressly admitted in their submissions that there had been an interference with the applicants ’ right to respect for their family life (see paragraph 31 above). The Court further observes that the interference was provided for by law, namely Article 12 of the Hague Convention, and that it pursued the legitimate aim of protecting the children ’ s best interests (see, mutatis mutandis, Blaga v. Romania, no. 54443/10, § 74, 1 July 2014).",
"38. The Court must therefore determine whether the interference in question was also “necessary in a democratic society” within the meaning of the second paragraph of Article 8 of the Convention, interpreted in the light of the applicable international instruments, and whether, when striking a balance between the competing interests at stake, the authorities acted swiftly and appropriate consideration was given to the children ’ s best interests, within the margin of appreciation afforded to the State in such matters (see paragraph 22 above, as well as X v. Latvia, cited above, § 54, and Blaga, cited above, § 75).",
"39. In this connection, the Court notes that the applicants complained about the manner in which the domestic authorities had interpreted the notion of “grave risk” enshrined in Article 13 (b) of the Hague Convention as grounds for an exception to the principle of returning children to the place of their habitual residence.",
"40. The Court reiterates that in the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention (see Ferrari v. Romania, no. 1714/10, § 46, 28 April 2015, and Anghel, cited above, § 80). Nevertheless, the Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (for details, see X v. Latvia, cited above, § 102, with further references). This means, in the circumstances of the present case, that the Court must assess whether the allegations of “grave risk” raised by the first applicant before the domestic courts were genuinely taken into account by those courts ( ibid., §§ 106, 107 and 115, with further references).",
"41. In this context, the Court notes that the first applicant substantiated the allegations of violence against the children by submitting recordings of past episodes of abuse (see paragraph 10 above in fine ). The father also admitted in court that he had used physical force to discipline his children (see paragraph 13 above). The domestic courts established that the second and third applicants had been subject to use of physical force at the hands of their father (see paragraph 13 above). The Court will now look at how the domestic courts assessed that information and how they weighed it in the children ’ s best interests.",
"42. The domestic courts, while condemning in general terms abuse against children and reaffirming their right to respect for their dignity, were nevertheless satisfied that what the second and third applicants had suffered at the hands of their father had only been occasional acts of violence and would not reoccur “often enough to pose a grave risk” (see paragraphs 13 and 14 above). Moreover, the Court of Appeal seems to have considered that the children ’ s right not to be subject to domestic abuse was “to a larger or lesser extent debatable” (see paragraph 14 above). The Court fails to see how those statements fit in with the relevant provisions of domestic law prohibiting in absolute terms domestic corporal punishment (see, mutatis mutandis, D.M.D. v. Romania, cited above, § 49). In fact, such assessments of the children ’ s rights run counter to the very prohibition of domestic abuse against children and cast doubt on the decision-making process.",
"43. The Court must reiterate that the best interests of the children, which unquestionably include respect for their rights and dignity, are the cornerstone of the protection afforded to children from corporal punishment (ibid.). Corporal punishment against children cannot be tolerated and States should strive to expressly and comprehensively prohibit it in law and practice (see D.M.D. v. Romania, cited above, §§ 50-51). In this context, the risk of domestic violence against children cannot pass as a mere inconvenience necessarily linked to the experience of return, but concerns a situation which goes beyond what a child might reasonably bear (see, mutatis mutandis, X v. Latvia, cited above, § 116).",
"44. Furthermore, there is nothing in the domestic courts ’ decisions that leads the Court to believe that they considered that the children were no longer at risk of being violently disciplined by their father if returned to his care. In fact, it can be inferred from the reasoning of the Bucharest Court of Appeal that that court accepted that if such a risk reoccurred, the Italian authorities would be able to react and to protect the children from any abuse of their rights, but only “if the risk was brought to their attention and supported by evidence” (see paragraph 14 above).",
"45. On this point, the Court notes that as member States of the European Union (“the EU”), both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court ’ s view, the existence of mutual trust between child - protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion.",
"46. In this connection, and bearing in mind that a child ’ s return cannot be ordered automatically or mechanically when the Hague Convention is applicable (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 138, ECHR 2010, and M.K. v. Greece, no. 51312/16, § 75, 1 February 2018), the Court considers that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children.",
"47. In the light of the above, and notwithstanding the principle of subsidiarity, the Court concludes that the domestic courts failed to examine the allegations of “grave risk” in a manner consistent with the children ’ s best interests within the scope of the procedural framework of the Hague Convention.",
"48. There has accordingly been a violation of Article 8 of the Convention.",
"49. Bearing in mind the conclusion it has reached in the paragraph above, the Court considers that no separate issue arises under Article 3 of the Convention, as the facts which form the object of the applicants ’ allegations of risk of submission to inhuman and degrading treatment have already been examined under Article 8 (see, mutatis mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 274, ECHR 2010).",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"50. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"51. The applicants claimed the following amounts in respect of non ‑ pecuniary damage:",
"- 5,000 euros (EUR) for the first applicant,",
"- EUR 10,000 for the second applicant, and",
"- EUR 10,000 for the third applicant.",
"52. Making reference to previous cases concerning similar matters (see Ferrari, § 62, and Blaga, § 115; judgments cited above, as well as Monory v. Romania and Hungary, no. 71099/01, § 96, 5 April 2005; Karrer v. Romania, no. 16965/10, § 62, 21 February 2012; and Raw and Others v. France, no. 10131/11, § 101, 7 March 2013 ), the Government argued that the amounts requested by the applicants in the present case were excessive. They considered that the finding of a violation constituted sufficient compensation for the non - pecuniary damage allegedly sustained by the applicants.",
"53. The Court considers that the applicants must have sustained non- pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards jointly to the applicants EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.",
"B. Costs and expenses",
"54. The first applicant also claimed EUR 8,400 for the costs and expenses incurred before the domestic courts and for those incurred before the Court, representing lawyers ’ fees and costs for translation and transmission of documents. She sent documents attesting notably to the payment of: 100 Romanian Lei (RON – approximately EUR 20) for the lawyer who had represented the applicants in the domestic proceedings; RON 14,325.40 (approximately EUR 3,000) for the lawyer in the proceedings before the Court; and RON 2,975 (approximately EUR 625) representing translation costs for the period from 17 September 2015 to 24 September 2018.",
"55. The Government contested the relevance of the costs allegedly incurred by the applicants. They also pointed out that most of the alleged expenses were not accompanied by supporting documents.",
"56. Regard being had to the documents in its possession and to its case - law, the Court considers it reasonable to award the first applicant the sum of EUR 3,645 covering costs under all heads.",
"C. Default interest",
"57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
56 | Y.S. and O.S. v. Russia | 15 June 2021 | The first applicant in this case, a Russian national, was the second applicant’s mother. The case concerned a court order for the second applicant to be returned to live with her father, a Ukrainian national, in Donetsk (Ukraine). The applicants complained in particular that the court judgment in question interfered with their family life. | The Court held that there had been a violation of Article 8 (right to private and family life) of the Convention, finding that the applicants had suffered a disproportionate interference with their right to respect for their family life in that the decision-making process under domestic law had not satisfied the procedural requirements inherent in Article 8. | International child abductions | Applications lodged by the abducting parent | [
"2. The applicants, a mother and daughter, were born in 1976 and 2006 respectively and live in Nakhodka, Primorye Region, Russia. The applicants, who had been granted legal aid, were represented by Mr A.N. Laptev, a lawyer practising in Moscow.",
"3. The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"THE CIRCUMSTANCES OF THE CASEBackground information",
"Background information",
"Background information",
"5. On 28 April 2001 the first applicant married a Ukrainian national, A.S. The couple settled in Donetsk, Ukraine.",
"6. On 5 December 2006 their daughter, the second applicant, was born.",
"7. After the birth of the second applicant, relations between the first applicant and A.S. deteriorated, and in 2011 the first applicant left him and the second applicant. She moved to Nakhodka, Primorye Region, in the far east of Russia. The second applicant remained in Donetsk with her father. The applicants maintained contact with each other by telephone and Skype.",
"8. On 5 March 2012 the first applicant applied to the Primorye regional department of the Federal Migration Service of Russia (“the FMS”) for a temporary residence permit in Russia.",
"9. On 23 April 2012 the FMS granted her request.",
"10. On 13 September 2013 the first applicant applied to the FMS for a permanent residence permit in Russia.",
"11. On 12 March 2014 the FMS granted her request and issued her with a residence permit valid until 12 March 2019.",
"12. In April 2014 armed groups started to take control of State facilities in Donetsk Region and announced the creation of a self-proclaimed entity known as the “Donetsk People’s Republic” (the “DPR”). The situation escalated to an armed conflict between the Ukrainian authorities and the “DPR”.",
"13. According to the first applicant, following the outbreak of hostilities in Donetsk Region and the proclamation of the “DPR”, with its centre in Donetsk, she attempted to move the second applicant to a safe place in Russia, but A.S. blocked her attempts.",
"14. On 1 December 2015 the FMS issued a certificate attesting to the first applicant’s participation in the State Programme to Assist Voluntary Resettlement of Compatriots Living Abroad to the Russian Federation. The second applicant’s name featured in the “family members” column.",
"15. In January 2016 the first applicant arrived in Donetsk and, without obtaining A.S.’s consent or informing him of her intentions, took the second applicant to Nakhodka, where she applied for Russian nationality for herself and the second applicant. In compliance with the requirements of Russian law, her application was accompanied by a document confirming that she had lodged a request with the competent Ukrainian authorities for renunciation of her and her daughter’s Ukrainian nationality.",
"16. On 23 June 2016 the Primorye regional department of the Ministry of Internal Affairs granted the first applicant’s application.",
"17. The applicants continue to live in Nakhodka.",
"18. Meanwhile, on 20 March 2016 A.S. began renting a flat in Kramatorsk, a city some 100 kilometres south of Donetsk, situated outside the conflict zone.",
"Proceedings in Ukraine",
"19. On 27 June 2012 the Budyonovskiy District Court of Donetsk dissolved the marriage between the first applicant and A.S. Both parents retained parental authority over the second applicant.",
"20. On 20 May 2013 the Budyonovskiy District Court held that the second applicant should continue to live with her father and ordered the first applicant to pay him child maintenance. The judgment was not appealed against and became final on 7 July 2013.",
"21. The first applicant lodged an application with the Budyonovskiy District Court, seeking an order that the second applicant live with her in Russia.",
"22. On 2 June 2014 the Budyonovskiy District Court ordered that the second applicant continue to live with her father. According to the first applicant, at that time the Budyonovskiy District Court was under the control of the “DPR”. According to the Government, however, it was not until October 2014 that the Ukrainian judicial bodies stopped functioning in certain areas of Donetsk Region. The judgment was not appealed against and became final on 27 June 2014.",
"23. According to the first applicant, she did not appeal against the judgment of 2 June 2014, because the Constitution of the “DPR” abolished Ukrainian judicial bodies on the territory of the “DPR”, including the Donetsk Regional Court of Appeal, which was replaced by the Supreme Court of the “DPR”.",
"Proceedings in Russia",
"24. On 23 March 2016 A.S. submitted an application for the second applicant’s return to Ukraine under the Hague Convention (see paragraph 38 below), to which both Russia and Ukraine are parties. The application was submitted to the Ukrainian Central Authority – the Ministry of Justice of Ukraine, which transmitted it to its Russian counterpart. In the application, he gave his address as being in Kramatorsk.",
"25. On 6 July 2016 A.S. lodged an application with the Tsentralniy District Court of Khabarovsk (“the District Court”), seeking the second applicant’s return to Ukraine under the Hague Convention. He gave his address as being in Kramatorsk.",
"26. In her objections, the first applicant argued that A.S. had not been effectively exercising his custody rights at the time of the second applicant’s removal, as the child had been living with her maternal grandparents and only occasionally with him. She further claimed that A.S. had neglected the child and mistreated her (by locking her up at home alone, preventing her from going for walks, applying physical force to her, feeding her a bad diet, humiliating her, buying her oversized clothes, and letting her drink beer and use the Internet so that she would not be in his way). The first applicant further argued that the child’s return to Ukraine would put her physical and emotional well-being at risk in view of the ongoing military conflict in Donetsk. Furthermore, the child had already adapted to her new life in Russia and was not willing to go back to Ukraine. The first applicant asked the District Court to examine the case in her absence.",
"27. A.S. argued that the alleged reason for the first applicant’s removal of the child – Donetsk being part of the ongoing military conflict – was far ‑ fetched. It was two years after the outburst of hostilities in Donetsk Region that the first applicant had taken the child away. A.S. further alleged that no military actions had been ongoing in the part of Donetsk where he and the second applicant lived, which he confirmed by photographs and videos. At the time of her removal, the child had been in good health, which was confirmed by her medical records; she had been eating well and had never been subjected to physical force.",
"28. At the hearing of 3 August 2016 A.S. was asked to specify whether he lived in Donetsk or Kramatorsk as indicated in his application. He explained that he lived in Donetsk, and that the address in Kramatorsk was his work address.",
"29. In the course of the same hearing the prosecutor requested that the hearing be adjourned in order to set up a video link with the first applicant in Nakhodka and, if possible, to hear the child. The prosecutor’s request was granted and the new hearing was scheduled for 16 August 2016. The first applicant was asked to appear and to ensure, if possible, the second applicant’s appearance.",
"30. On 16 August 2016 the District Court resumed the examination of the case. The first applicant participated in the hearing by video link from the Nakhodka Town Court. However, she did not ensure the appearance of the second applicant arguing that she feared for her child’s mental health.",
"31. By a judgment of the same day, the District Court established the following facts. A.S., a Ukrainian national, and the first applicant, a Russian and Ukrainian national, were married from 28 April 2001 to 27 June 2012 and had their daughter, the second applicant, on 5 December 2006 in Donetsk, Ukraine. Their daughter had dual nationality. She was born and lived in Donetsk, where she had her registered place of residence and where she attended school and medical facilities. All issues related to the child’s education and medical assistance were dealt with entirely by A.S. Before her removal to Russia, she was living with her father in Donetsk and had no other place of residence. On 20 May 2013 the Budyonovskiy District Court of Donetsk held that the second applicant should live with her father, and the first applicant was ordered to pay him child maintenance. On 2 June 2014 the same court again held that the second applicant should live with A.S., and the first applicant’s request for the court to determine the second applicant’s place of residence as being with her in Russia was dismissed. Contrary to the provisions of Ukrainian law (Articles 141 and 161 of the Family Code of Ukraine) and the Hague Convention, the first applicant took the decision to change the second applicant’s habitual place of residence without A.S.’s consent, wrongfully taking the child from Ukraine to Russia and retaining her there. No circumstances capable of constituting an exception under Articles 13 and 20 of the Hague Convention to the general obligation to secure the child’s return were detected by the District Court. The first applicant’s arguments that A.S. had not actually been exercising his custody rights at the time of the second applicant’s removal and had been mistreating and neglecting her were found to be unsupported and disproved by the evidence submitted by A.S. (certificates, receipts, photographs and videos). The first applicant’s arguments that there was a “grave risk” that the second applicant’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation owing to the military conflict ongoing in Ukraine were also found to be unsupported by any objective and reliable evidence. The District Court considered that occasional military actions in various settlements in Ukraine did not as such constitute an exception relating to a very serious risk of harm to the child. That risk was not individual to the child, but rather a general consequence of living in a conflict zone. Besides, although the military conflict had been ongoing in Donetsk since April 2014, it was not until 2016 that the first applicant took the second applicant to Russia. She did not provide the District Court with any evidence that the alleged risk could not be addressed by the competent Ukrainian authorities. Nor did she provide proof that the second applicant’s removal from her habitual place of residence was the only possible way of protecting her from the alleged risk. The District Court further refused to accept the first applicant’s argument about the child’s unwillingness to return to Ukraine. It took into account a report on an inspection of the first applicant’s living conditions in Nakhodka prepared on 21 July 2016 by the chief inspector of the local childcare authority, which stated, amongst other things, that the second applicant was afraid to return to Donetsk because she feared gunfire and exploding bombs, and that she preferred to stay with the first applicant in Russia. The District Court considered, however, that the report in question was more relevant to the determination of the issue of the child’s residence, which was to be decided by the courts of her habitual place of residence. In view of the above, the District Court granted A.S.’s application and ordered the second applicant’s return to the place of her habitual residence in Ukraine – Donetsk.",
"32. The first applicant appealed, claiming that she had not been stripped of her parental authority or banned by any judicial decision from taking her daughter to Russia. She further indicated that the psychological climate at A.S.’s place of residence had not been favourable for the child and that military actions were being carried out in Donetsk, which would put the second applicant’s life and health at risk in the event of her return there. She further indicated that both herself and the child were Russian nationals and no longer had Ukrainian nationality, and that the child had been unwilling to return to her father.",
"33. During the examination of the case on appeal A.S. submitted that he could ensure the second applicant’s safety upon her return to Donetsk, and could also move his home address as his work permitted him to do so. He further submitted that no military actions had been underway in Donetsk and that his flat in Donetsk was situated 25 km from the airport of Donetsk, which had been the scene of heavy fighting between separatist forces affiliated with the “DPR” and Ukrainian military in the period between September 2014 and January 2015.",
"34. On 12 October 2016 the Khabarovsk Regional Court (“the Regional Court”) endorsed the reasoning of the judgment of 16 August 2016 and upheld it on appeal, following which it became enforceable. The Regional Court held, in particular, that the first applicant’s argument to the effect that the child’s return to her father in Donetsk would put her life and health at risk due to the military actions there had not been supported by admissible and relevant evidence. The first applicant’s request to participate in the appeal hearing by video link was rejected owing to a lack of technical equipment.",
"35. On 5 May 2017 a judge of the Regional Court refused to refer the case for consideration by the Presidium of that court.",
"36. On 29 September 2017 a judge of the Supreme Court of Russia refused to refer the case for consideration by its Civil Division.",
"37. Meanwhile, on 7 March 2017 the applicants lodged their application before the Court. On 8 March 2017 the Court decided to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicants’ request to suspend the enforcement of the second applicant’s return to Donetsk was granted.",
"RELEVANT INTERNATIONAL LAW AND PRACTICEThe Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980",
"The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980",
"The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980",
"38. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Ukraine on 1 June 2012. It provides, in so far as relevant, as follows:",
"Article 1",
"“The objects of the present Convention are –",
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and",
"b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.",
"...”",
"Article 3",
"“The removal or the retention of a child is to be considered wrongful where –",
"a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and",
"b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.",
"The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”",
"Article 8",
"“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.",
"...”",
"Article 11",
"“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.",
"If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”",
"Article 12",
"“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.",
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.",
"...”",
"Article 13",
"“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –",
"a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or",
"b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.",
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.",
"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”",
"Article 14",
"“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”",
"Article 20",
"“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.",
"...”",
"Explanatory Report to the Hague Convention, Part II of the Guide to Good Practice under the Hague Convention",
"39. For a summary of the relevant parts of the Explanatory Report to the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, and Part II of the Guide to Good Practice under the Hague Convention published by HCCH in 2003, see X v. Latvia ([GC] no. 27853/09, §§ 35-36, ECHR 2013).",
"Part VI of the Guide to Good Practice under the Hague Convention – Article 13 (1) (b) of the Hague Convention",
"40. Part VI of the Guide to Good Practice under the Hague Convention published by the HCCH in 2020, provides as follows:",
"“29. The grave risk exception is based on “the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation.",
"...",
"34. The term \"grave\" qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such a level of seriousness to be characterised as \"grave\". As for the level of harm, it must amount to an “intolerable situation”, that is, a situation that an individual child should not be expected to tolerate. The relative level of risk necessary to constitute a grave risk may vary, however, depending on the nature and seriousness of the potential harm to the child.",
"35. The wording of Article 13(1)(b) also indicates that the exception is “forward ‑ looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk.",
"...",
"40. As a first step, the court should consider whether the assertions are of such a nature, and of sufficient detail and substance, that they could constitute a grave risk. Broad or general assertions are very unlikely to be sufficient.",
"41. If it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence. This means that even where the court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, it must nevertheless duly consider the circumstances as a whole, including whether adequate measures of protection are available or might need to be put in place to protect the child from the grave risk of such harm or intolerable situation, when evaluating whether the grave risk exception has been established.",
"42. Once this evaluation is made:",
"– where the court is not satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it orders the return of the child;",
"– where the court is satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it is not bound to order the return of the child, which means that it is within the court’s discretion to order return of the child nonetheless.",
"...",
"61. The grave risk analysis associated with the circumstances in the State of habitual residence must focus on the gravity of the political, economic or security situation and its impact on the individual child, and on whether the level of such impact is sufficient to engage the grave risk exception, rather than on the political, economic or security situation in the State generally. Assertions of a serious security, political or economic situation in the State of habitual residence are therefore generally not sufficient to trigger the grave risk exception. Similarly, (isolated) violent incidents in an unsettled political environment will typically not amount to grave risk. Even where the facts asserted are of such a nature that they could constitute a grave risk, the court must still determine whether protective measures could address the risk and, if so, the court would then be bound to order the return of the child.",
"...",
"91. In line with the relevant laws and procedures and where it is deemed appropriate in evaluating assertions of grave risk, courts can seek additional information through Central Authorities in order to better understand the legal framework or child protection system in place in the State of habitual residence, or to clarify certain assertions of facts. Courts may be able also to ask specifically for available information regarding the social background of the child through the Central Authorities. ...",
"95. As part of their responsibilities, Central Authorities also have a duty to cooperate with each other and to promote cooperation among internal authorities to secure the prompt return of the child (Art. 7(1)). In cases where the Article 13(1)(b) exception is raised, such cooperation may notably allow the Central Authorities to respond quickly to requests from the court to provide information on the availability of protective measures to protect the child from the grave risk, subject to the relevant laws. ...”",
"Application and Implementation by Ukraine of the Obligations under the Hague Convention on the Territory of “the DPR”",
"41. On 16 October 2015 Ukraine stated that its application and implementation of the obligations under the Hague Convention on the territory of the “DPR” was limited and not guaranteed as from 20 February 2014 onwards (accessible at:",
"https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=974&disp=resdn ).",
"RELEVANT DOMESTIC LAWCode of Civil Procedure of the Russian Federation",
"Code of Civil Procedure of the Russian Federation",
"Code of Civil Procedure of the Russian Federation",
"42. The procedure for the examination of applications for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with international treaties to which the Russian Federation is party, is governed by Chapter 22.2 of the Code of Civil Procedure.",
"43. The Code provides that an application for return must be submitted to a court by a parent or other individual who considers that his or her custody or access rights have been violated, or by a prosecutor. The application must be submitted to the Tsentralniy District Court of Khabarovsk if the child is within the territory of the Far Eastern Federal Circuit (Article 244.11).",
"44. The application for return is examined by the court with the mandatory participation of a prosecutor and the relevant childcare authority, within forty-two days of receipt, including the time for preparation for the hearing and the drawing-up of the judgment (Article 244.15).",
"45. The judgment taken in a case concerning the return of a child unlawfully removed to, or retained in, the Russian Federation must specify the reasons for the need to return the child to the State of his or her habitual residence, in accordance with international treaties to which the Russian Federation is party, or the reasons for refusing the application for return, in accordance with international treaties to which the Russian Federation is party (Article 244.16).",
"46. The judgment may be appealed against within ten days. The appeal is examined by the appellate court within one month of receipt (Article 244.17).",
"Family Code of the Russian Federation",
"47. A child is entitled to express her or his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57).",
"OTHER RELEVANT INTERNATIONAL MATERIALSituation in Donetsk in 2016",
"Situation in Donetsk in 2016",
"Situation in Donetsk in 2016",
"48. The Council of Europe Parliamentary Assembly’s Resolution 2133 (2016), entitled “Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities”, was adopted on 12 October 2016. It reads as follows:",
"“6. ... in the conflict zone in the Donbas region, serious human rights violations have occurred, and are still occurring, as documented by numerous reports from, inter alia, the Council of Europe’s Commissioner for Human Rights, the United Nations Human Rights Monitoring Mission in Ukraine, the Special Monitoring Mission to Ukraine of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR), and leading Ukrainian and international non-governmental human rights organisations. These violations include extrajudicial executions, enforced disappearances, torture and inhuman and degrading treatment, unlawful detentions and disproportionate restrictions on the freedom of expression and freedom of information.",
"7. Victims of human rights violations have no effective internal legal remedies at their disposal:",
"7.1. As far as the residents of the “DPR” ... are concerned, local “courts” lack legitimacy, independence and professionalism; the Ukrainian courts in the neighbouring government-controlled areas, to which jurisdiction for the non ‑ controlled areas was transferred by Ukraine, are difficult to reach, cannot access files left behind in the “DPR” ... and cannot ensure the execution of their judgments in these territories;",
"...",
"10. In the conflict zone in the Donbas region, the civilian population ... were subjected to violations of their rights to life and physical integrity and to the free enjoyment of property, as a result of war crimes and crimes against humanity including the indiscriminate or even intentional shelling of civilian areas, sometimes provoked by the stationing of weapons in close proximity.",
"11. Numerous inhabitants of the conflict zone in the Donbas, on both sides of the contact line, still suffer on a daily basis from numerous violations of the ceasefire that was agreed in Minsk. ... The inhabitants also suffer from the prevailing climate of impunity and general lawlessness due to the absence of legitimate, functioning State institutions, and in particular access to justice in line with Article 6 of the European Convention on Human Rights ...”",
"49. The report of the United Nations Human Rights Monitoring Mission in Ukraine (“the HRMMU”) on the human rights situation in Ukraine covering the period from August to November 2016 states:",
"“4. Between 16 August and 15 November 2016, OHCHR recorded 164 conflict ‑ related civilian casualties in Ukraine. Due to the renewed commitment to the ceasefire on 1 September, there was a 13 per cent decrease compared to the previous reporting period. In October, OHCHR recorded eight times more civilian casualties in armed group-controlled territories than in Government-controlled areas of the conflict zone, indicating that civilians in territories controlled by the armed groups continue to be particularly at risk of injury and death. OHCHR interviews with families of killed and injured civilians reveal the devastation and harm caused by the ongoing armed conflict in Donetsk and Luhansk region. The reported continued flow of weapons and ammunition to the conflict area, which results in serious human rights violations and abuses and violations of international humanitarian law, compounds their suffering. In total, from mid-April 2014 to 15 November 2016, OHCHR recorded 32,453 casualties, among Ukrainian armed forces, civilians and members of the armed groups. This includes 9,733 people killed and 22,720 injured.",
"...”",
"50. The Organisation for Security and Co-operation in Europe (“the OSCE”) Special Monitoring Mission to Ukraine (“the SMM”) published a thematic report entitled “Civilian casualties in Eastern Ukraine 2016”, which states:",
"“Between 1 January and 31 December 2016 the SMM documented 442 cases of civilian casualties in the areas affected by the conflict in eastern Ukraine: 88 civilians were killed ... and 354 were injured ...",
"The vast majority of casualties were attributed to shelling, including from artillery and mortars with large caliber ...",
"Incidents leading to civilian casualties mostly occurred in Donetsk region where the Mission confirmed 355 cases: 68 killed and 287 injured.",
"...",
"On 5 September 2014, the Protocol agreed in Minsk called for an immediate cessation of the use of weapons. More than two years later the adherence to ceasefire is not respected and civilian lives are constantly under threat ...”",
"51. The relevant part of the “Amnesty International Report 2016/17 – Ukraine”, states:",
"“Sporadic fighting and exchange of fire between government and Russia-backed separatist forces continued. Gunfire, shelling and unexploded ordnance continued to cause civilian deaths and injuries. The UN Human Rights Monitoring Mission estimated that there were more than 9,700 conflict-related deaths, of which around 2,000 were civilians, and at least 22,500 conflict-related injuries since the beginning of the conflict in 2014.”",
"52. The relevant part of Human Rights Watch’s “World Report 2017” states:",
"“The 2015 Minsk II Agreements significantly reduced hostilities, but frequent skirmishes and exchanges of artillery fire continued during the year.",
"According to the [HRMMU], mortar, rocket, and artillery attacks between April 2014 and May 2016 killed over 9,000 people and injured more than 21,000—including civilians and combatants on all sides—in Donetsk and Luhansk regions. The HRMMU reported a 66 percent increase in civilian casualties from May to August compared to earlier in 2016, and documented 28 civilian deaths in the summer, many of which resulted from shelling and landmines.”",
"Subsequent Evolvement of the Situation in Donetsk",
"53. The report of the HRMMU on the human rights situation in Ukraine covering the period from 1 August to 31 October 2020 states:",
"“From 1 August to 31 October 2020, HRMMU recorded no civilian casualties resulting from active hostilities, nor damage to civilian objects ... The welcomed reduction in civilian casualties can be attributed to the introduction of a strengthened ceasefire adopted by the Trilateral Contact Group in Minsk, which took effect from 27 July.",
"However, civilian casualties resulting from mine-related incidents and handling of explosive remnants of war continued. From 1 August to 31 October, HRMMU recorded 24 such casualties: two killed (both men) and 22 injured (16 men, four boys and two women).”",
"54. The OSCE SMM’s thematic report “Civilian casualties in the conflict-affected regions of Eastern Ukraine”, covering the period between 1 January 2017 and 15 September 2020, states:",
"“Between 1 January 2017 and 15 September 2020, the SMM corroborated 946 civilian casualties, of which 161 were fatalities. In 2017, the number of confirmed casualties rose from 442 in 2016 to 486. While the number of casualties has declined every year in the reporting period, so far in 2020 (January to September) the Mission has confirmed 74 civilian casualties.",
"...",
"The vast majority of civilian casualties were due to shelling (518, including 66 fatalities) ...",
"While shelling caused the most civilian injuries and fatalities combined, it is important to note that the majority of civilian fatalities in 2017-2019 were caused by mines and other explosive objects.",
"...",
"Of the 946 civilian casualties corroborated during the reporting period, 750 occurred in Donetsk region ...",
"During the reporting period, the SMM has corroborated 100 child casualties (73 boys and 27 girls), with 43 casualties (21 boys and 22 girls) due to shelling. The majority of the shelling incidents where children were casualties occurred while they were in or near their homes or homes of family members with whom they were staying.",
"...",
"While the Mission recorded more than 400,000 ceasefire violations in Donetsk and Luhansk regions in 2017, the number of ceasefire violations steadily declined in subsequent years to some 130,000 ceasefire violations recorded in the first eight and a half months of 2020. The reduction in ceasefire violations has coincided with the reduction of civilian casualties due to shelling and SALW [small arms and light weapons]-fire.",
"On 22 July 2020, agreement was reached in the TCG [Trilateral Contact Group] on additional measures to strengthen the ceasefire. These measures took effect at 00:01 on 27 July. Since then, the Mission has recorded a significant reduction in the number of ceasefire violations along the contact line. In the 51 days between 27 July and 15 September, the Mission recorded in total just over 1,000 ceasefire violations and received only one report of a civilian casualty due to shelling or small-arms fire ... Despite the reduction in the reports of civilian casualties due to shelling and SALW ‑ fire, between 27 July and 15 September, the Mission has confirmed and reported eight casualties, of which one was a fatality, due to mines and other explosive objects. This highlights the fact that even if the number of cease-fire violations decreases, mines and other explosive objects still pose a serious threat to the lives of civilians.",
"...",
"The highest concentration of civilian casualties occurred in the settlements around Avdiivka and Yasynuvata and parts of Donetsk city (northern, central, and eastern areas), with 171 civilian casualties (20 killed and 151 injured) ...”",
"55. The relevant part of Human Rights Watch’s “World Report 2020” states:",
"“2019 saw a significant decrease in civilian casualties. The leading causes were shelling by artillery and mortars, fire from light weapons, landmines, and explosive remnants of war.",
"Between January and May 2019, attacks on schools on both sides of the contact line tripled compared with the same period in 2018. Throughout six years of conflict, 147 children were killed.”"
] | [
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"56. The applicants complained that the Russian courts’ decision to return the second applicant to Donetsk under the Hague Convention had violated their right to respect for their family life. They further complained that they had not been granted a fair decision-making process in the above proceedings. The complaints fall to be examined under Article 8 of the Convention, which in its relevant part reads as follows:",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Admissibility",
"57. The Government did not dispute that the first applicant had standing to lodge an application on behalf of her daughter. Given that the first applicant has parental authority over the second applicant, the Court finds that she has standing to act on her behalf (see, most recently, Petrov and X v. Russia, no. 23608/16, § 83, 23 October 2018, with further references).",
"58. The Government considered that the complaints were manifestly ill ‑ founded for the reasons set out below (see paragraphs 66-70).",
"59. The Court does not consider that these complaints are manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"60. The applicants submitted that the judgment of the District Court of 16 August 2016 ordering the second applicant’s return to Donetsk had amounted to an interference with their right to respect for their family life under Article 8 of the Convention. They argued that the interference in question had not been in accordance with the law and had not been “necessary” within the meaning of Article 8 of the Convention. Firstly, they raised the issue of the applicability of Ukrainian law on the territory of the “DPR”, from where the child had been removed. Secondly, they noted that the text of the District Court’s judgment did not refer to any specific provisions of Ukrainian law obliging a parent travelling outside Ukraine with a child to obtain consent from the other parent. Even if such a provision existed, the applicants argued that by removing the second applicant from Donetsk to Russia the first applicant had complied with her obligation as a parent to protect her child from the dangers related to living in a military conflict zone.",
"61. The applicants went on to argue that the Hague Convention was not applicable in the circumstances of the present case. In this connection, they referred to the declaration made by the Ukrainian authorities on 16 October 2015 (see paragraph 41 above). The Russian authorities’ reference to their non-acceptance of the above declaration by the Ukrainian authorities did not in any way affect the fact that the Ukrainian authorities had no control over the territory of the “DPR” and, accordingly, could not guarantee the applicability of the Hague Convention there.",
"62. The applicants further challenged the legitimacy of the judgment of the Budyonovskiy District Court of Donetsk of 2 June 2014. They referred to the fact that on 7 April 2014 the independence of the “DPR” had been declared, that on 30 April 2014 the acting President of Ukraine had recognised that the Ukrainian authorities had lost control over Donetsk and part of Donetsk Region, and that on 14 May 2014 the Constitution of the “DPR” had been adopted, which had established the Supreme Court of the “DPR” and other courts of the “DPR”. Therefore, as no legitimate courts (or other authorities) existed on the territory of the “DPR”, the first applicant could not have settled the issue of the second applicant’s custody prior to her removal, and the parties would not be able to have this issue settled after the second applicant’s return to Donetsk. Thus, ordering the return of the child to an armed conflict zone where neither the legitimate government institutions nor the European Convention on Human Rights were in force, had in itself been a denial of justice.",
"63. Referring to the second applicant’s Russian nationality, the precarious human rights situation in Donetsk, A.S.’s alleged lack of care over the second applicant and the latter’s wish to live with the first applicant, the applicants considered that the interference stemming from the judgment of the District Court of 16 August 2016 had not been necessary in a democratic society and had not been proportionate. In view of the specific circumstances of the present case, the Russian courts should have examined the custody issue on the merits with due regard to the best interests of the child rather than applied the mechanisms of the Hague Convention. The applicants further drew the Court’s attention to the fact that the judgment of the District Court of 16 August 2016 was in any event unenforceable, since it ordered the second applicant’s return to the place of her habitual residence in Donetsk, even though, as was apparent from her father’s submissions to the Court, he no longer lived in Donetsk, but in Kramatorsk. The latter’s assurances that he would be able to ensure the second applicant’s safety in Kramatorsk therefore had no legal significance, since the subject matter of the present case was the child’s return to Donetsk, not Kramatorsk.",
"64. The applicants further insisted that they had not been granted a fair decision-making process with due respect to the interests safeguarded by Article 8 of the Convention. In particular, the Russian courts had dismissed the first applicant’s submissions about the risks that the second applicant might face in the event of her return to Donetsk, referring to the absence of any objective evidence in support of her allegations. They had refused to obtain evidence from the first applicant’s parents regarding, in particular, the circumstances of the second applicant’s life with her father as well as the situation in the zone of armed conflict. They had failed to take the necessary measures to verify the facts presented by the first applicant, such as enquiring with the Russian Ministry of Foreign Affairs about the security situation in Donetsk, consulting the website of the Crisis Management Centre of the Russian Ministry of Foreign Affairs, or examining the reports of international organisations closely following the situation in Donetsk. The Russian courts had further given no consideration to the possibility of the first applicant relocating with the second applicant. They had ignored the second applicant’s opinion, reflected in the report of 21 July 2016 on the inspection of the applicants’ living conditions in Nakhodka. This report had mentioned the childcare authority inspector’s conversation with the second applicant, during which the latter had confirmed that she was unwilling to return to Donetsk as gunfire and bomb explosions scared her. Returning to the scene of an armed conflict clearly did not correspond to the best interests of the child and exceeded the level of stress which the child could reasonably bear. The Russian courts should have ordered a psychological examination of the second applicant, to evaluate whether returning her to her father would serve her best interests and whether breaking apart from the first applicant would amount to serious psychological trauma. The first applicant further submitted that she had not been afforded an opportunity to participate in the appeal hearing of 12 October 2016.",
"65. The applicants concluded that there had been a violation of their right to respect for their family life under Article 8 of the Convention.",
"(b) The Government",
"66. The Government argued that the judgment of the District Court of 16 August 2016 ordering the second applicant’s return to Donetsk, Ukraine, had not amounted to an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention. If, however, the Court were to find that there had been an interference with the applicants’ right to respect for their family life, the Government considered that it had been in accordance with the law, namely the Hague Convention, and had pursued the goal of protecting the rights and freedoms of the child (the second applicant) and her father (A.S.), which was a legitimate aim within the meaning of Article 8 § 2 of the Convention. They further asserted that the applicants had been granted a fair decision-making process with due respect for the interests safeguarded by Article 8 of the Convention.",
"67. The parties in the present case did not dispute the fact that the first applicant had removed the second applicant without the consent of her father from Ukraine to Russia. This was done in violation of Ukrainian law and Article 3 of the Hague Convention. Article 12 of the Hague Convention provided for the return of children who had been unlawfully removed, except in the cases referred to in Articles 13 and 20 thereof. Based on the provisions of Article 13 (b) of the Hague Convention, it was the parent who opposed the return, that is to say the first applicant, who was to provide sufficient evidence of the existence of a “grave risk” within the meaning of that provision. The domestic courts had genuinely taken into account the circumstances raised by the first applicant as capable of constituting an exception to the second applicant’s return in application of Articles 13 and 20 of the Hague Convention and dismissed them as unfounded. They had conducted a balanced and reasonable assessment of the relevant interests and had reached a conclusion which they had considered to be in the best interests of the child. At the time of the examination of the case, the second applicant had not yet reached the age of ten and the domestic courts had not therefore been required to take her views into account (see paragraph 47 above). They had noted the second applicant’s desire to live with the first applicant in Russia and her unwillingness to return to Ukraine, but had considered those factors more relevant for the proceedings relating to the determination of the issue of the child’s residence, which was to be decided by the courts in Ukraine.",
"68. As to the applicants’ doubts regarding the legitimacy of the judgment of the Budyonovskiy District Court of Donetsk of 2 June 2014 upholding the residence order in favour of the second applicant’s father, the Government stated that the Ukrainian judicial authorities had not stopped operating in certain areas of Donetsk Region until October 2014 and that the judgment in question, delivered in the name of Ukraine, had therefore been legitimate. It remained open to the first applicant to appeal against it, either to the judicial authorities of the “DPR” or the Ukrainian judicial authorities exercising jurisdiction over the territory of Donetsk (see paragraph 73 below). The applicants’ argument of a lack of fair administration of justice by legitimate judicial bodies in the conflict zone was therefore groundless. As to the applicants’ argument that the Hague Convention was not applicable to the circumstances of the present case, the Government stated that the declaration made by the Ukrainian authorities on 16 October 2015 (see paragraph 41 above) could not lay the ground for Ukraine’s failure to fulfil its obligations and take measures necessary for settling the issues affecting the implementation of residents’ fundamental rights and freedoms. They relied on the response statement made by the Russian Federation on 19 July 2016 rejecting the statement made by Ukraine. Moreover, A.S.’s application concerning the second applicant’s abduction had been sent to the Ministry of Education and Science of Russia (Russian Central Authority) via the Ministry of Justice of Ukraine (Ukrainian Central Authority), from which it was evident that Ukraine considered this case to be within the scope of the Hague Convention. A duly certified copy of the judgment of 2 June 2014 attached to A.S.’s application for the second applicant’s return also showed that the Ukrainian authorities considered the judgment in question to have been issued by a competent Ukrainian court.",
"69. As regards the fairness of the decision-making process, the Government submitted that the Russian courts had ensured equal conditions for the parties submitting evidence in support of their arguments and claims, explained procedural rights to the parties in the proceedings, assisted them in the exercise of their procedural rights, and considered the parties’ requests for obtaining evidence in accordance with the requirements of procedural law. The District Court had informed the first applicant in due time of the application submitted by her former husband, provided her with a copy of it and the materials annexed thereto, and invited her to raise arguments and objections and provide evidence in support of her arguments. Having examined the evidence submitted by the parties and in the absence of any objections from them or requests for further evidence, the District Court had concluded the consideration of the merits of the case and proceeded to the pleadings. There was therefore nothing in the case file to cast doubt on the fairness of the proceedings for the second applicant’s return to Ukraine.",
"70. The Government further drew parallels between the present case and the cases M.R. and L.R. v. Estonia ((dec.), no. 13420/12, 15 May 2012) and Mattenklott v. Germany ((dec.), no. 41092/06, 11 December 2006). In those cases, the national courts did not establish that there was a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation and ordered their return to the States of their habitual residence (Italy and the USA, respectively), and the Court found those applications manifestly ill-founded. The Government considered that a similar approach should be adopted by the Court in the present case.",
"Third-party interveners",
"(a) The Ukrainian Government",
"71. The Government of Ukraine confirmed at the outset that both applicants still had Ukrainian citizenship.",
"72. The Government further submitted that the removal of the second applicant from Ukraine to Russia by the first applicant had been wrongful within the meaning of the Hague Convention and that, in the absence of any circumstances capable of constituting an exception under Articles 12, 13 and 20 of the above-mentioned Convention to Russia’s obligation to return the child, the Russian courts had reached the correct conclusion by ordering her return. However, the Russian courts had erred in ordering her return to Donetsk. In this connection, the Government submitted that they had no effective control over the territory of Donetsk (see Tsezar and Others v.Ukraine, nos. 73590/14 and 6 others, § 11, 13 February 2018), that the application and implementation of the Hague Convention on this territory was therefore limited and not guaranteed (see paragraph 41 above), and that they could not guarantee the second applicant’s safety there. They drew the Court’s attention to the fact that in his application for the child’s return under the provisions of the Hague Convention, A.S. had asked for his daughter to be returned to Kramatorsk. Furthermore, in his application to the Tsentralniy District Court of Khabarovsk A.S. had sought the second applicant’s return to Ukraine. The Ukrainian Government therefore considered that the Russian courts should have taken into account the fact that since March 2016 A.S. had been renting a flat and living in Kramatorsk, which had been under the control of Ukraine since July 2014, and should have indicated Kramatorsk and not Donetsk as the return location.",
"73. The Government further refuted the first applicant’s statement that the issue of custody of the second applicant could not be settled prior to her removal, or following her return, owing to the absence of legitimate courts in Donetsk. They submitted that in August to September 2014 Ukrainian law provided for a change of territorial jurisdiction for cases within the jurisdiction of the courts located, inter alia, in Donetsk (see Tsezar and Others, cited above, § 34). It provided, in particular, that cases within the territorial jurisdiction of the Budyonovskiy District Court of Donetsk were to be examined by the Krasnoarmiysk Town Court of Donetsk Region.",
"(b) The second applicant’s father A.S.",
"74. A.S. considered, with reference to the Hague Convention, that the Russian courts had reached a sensible decision by ordering his daughter’s return to Ukraine: the judicial procedure had been transparent and fair and the courts’ findings had been based on a thorough examination of all the pros and cons. As regards the first applicant’s concern about the situation in Donetsk, where the second applicant was to be returned, A.S. submitted that Donetsk was indeed situated within the so-called anti-terrorist operation zone, which had been the scene of military actions since April 2014. However, since 15 February 2015 all military actions had stopped within the framework of the Minsk II agreements. According to OSCE reports, a stable ceasefire had been reached on 18 February 2015 and no heavy bombing of Donetsk had been recorded since that time. Furthermore, on 21 February 2015 the opposing parties had reached an agreement on mutual disengagement of forces from the frontline, and since 22 December 2016 they had also reached an agreement on a complete and unconditional ceasefire. As a direct eyewitness to the situation in Donetsk, A.S. could do nothing but confirm the conclusions of the above-mentioned reports. All these factors, in his opinion, were reflected in the judgment of 16 August 2016 of the District Court, which had thoroughly examined the current situation in Donetsk and taken into account all the possible risks before ordering the child’s return to the place of her habitual residence in Donetsk. In any event, in order to ensure the second applicant’s safety following her return to Ukraine, on 20 March 2016 he had begun renting a flat in Kramatorsk, located outside the conflict zone. He provided a copy of his rental agreement, which was valid until 20 March 2017.",
"75. A.S. claimed that the first applicant had left the second applicant in 2011 and had only come back in 2016 to kidnap her, expressing his deep concern regarding the second applicant’s well-being with the first applicant in Russia. He referred to the Court’s decision of 8 March 2017 to indicate to the Government of Russia, under Rule 39 of the Rules of Court, not to enforce the second applicant’s return to Donetsk pending the proceedings before it as well as the first applicant’s strong unwillingness to allow him to communicate with the second applicant, submitting that his family ties with his daughter were under threat of completely breaking down, thus violating his right to family life and leaving the issue to be resolved over time.",
"The Court’s assessment",
"(a) General principles",
"76. In Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 131-40, ECHR 2010) and X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013) the Court articulated a number of principles, which have emerged from its case-law on the issue of the international abduction of children, as follows.",
"77. In the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child of 20 November 1989, as well as the relevant rules and principles of international law applicable in relations between the Contracting Parties.",
"78. The decisive issue is whether a fair balance has been struck between the competing interests of the child, of the two parents, and of public order, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”.",
"79. There is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b)).",
"80. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development.",
"81. In the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a “grave risk” (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation which, however, remains subject to European supervision. Hence, the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8.",
"82. A harmonious interpretation of the European Convention and the Hague Convention can be achieved, provided that the following two conditions are observed. First, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to ascertain that those questions have been effectively examined. Secondly, those factors must be evaluated in the light of Article 8 of the Convention.",
"83. Lastly, Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this regard: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted, is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.",
"(b) Application of these principles to the present case",
"84. The Court reiterates that in January 2016 the first applicant, who since 2011 had been living in Nakhodka, Russia, arrived in Donetsk, Ukraine, where the second applicant, aged nine, was living with her father. She then took her to Russia without A.S.’s knowledge or consent and never returned. Following an application lodged by A.S., on 16 August 2016 the District Court delivered a judgment finding the second applicant’s removal from Ukraine, the State of her habitual residence, unlawful and ordering her return to Donetsk (see paragraph 31 above). That judgment was upheld on appeal by the Regional Court on 12 October 2016 (see paragraph 34 above).",
"85. The Court reiterates that a parent and child’s mutual enjoyment of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see Edina Tóth v. Hungary, no. 51323/14, § 49, 30 January 2018).",
"86. The respondent Government argued that there had been no interference with the applicants’ right to respect for their family life. The Court has previously found that an interference occurs where domestic measures hinder the mutual enjoyment by a parent and a child of each other’s company and that an order for return, even if it has not been enforced, constitutes in itself an interference with the right to respect for family life (see Šneersone and Kampanella v. Italy, no. 14737/09, § 88, 12 July 2011, with further references). Therefore, in the absence of any circumstances requiring a departure from that approach, the Court concludes that the District Court’s judgment of 16 August 2016 ordering the return of the second applicant to Ukraine – Donetsk – constituted an interference with the applicants’ right to respect for their family life.",
"87. The interference with the applicants’ right to respect for their family life found above will be considered to be in breach of Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether the interference was “in accordance with the law”, pursued one or more legitimate aims as defined in that paragraph and was “necessary in a democratic society” to achieve them.",
"88. The Court observes that the decision to return the second applicant to the place of her habitual residence in Ukraine – Donetsk – was taken by the District Court under the Hague Convention, which entered into force between Russia and Ukraine on 1 June 2012, and Chapter 22.2 of the Code of Civil Procedure of the Russian Federation, which governs the procedure for the examination of applications for the return of children unlawfully removed to, or retained in, the Russian Federation, in accordance with international treaties to which the Russian Federation is a party (see paragraphs 38 and 42 above).",
"89. The applicants argued that the Russian courts had had no grounds for applying the provisions of the Hague Convention in the circumstances of the present case. They submitted, in particular, that the removal had been carried out from the “DPR”, a territory over which Ukraine had no effective control and where the application and implementation of Ukraine’s obligations under the Hague Convention had been “limited and not guaranteed”. The applicants further challenged the conclusions of the Russian courts as to the wrongfulness of the second applicant’s removal, drawing the Court’s attention to the alleged non-applicability of Ukrainian law on the territory of the “DPR” and the illegitimate nature of the judgment of the Budyonovskiy District Court of Donetsk of 2 June 2014 maintaining that the second applicant’s residence should be with her father (see paragraphs 60-62 above).",
"90. The Court notes that the first applicant never raised these arguments before the domestic courts. In any event, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention: it is for the domestic courts to resolve problems of interpretation and application of domestic legislation, and of rules of general international law and international treaties (see X v. Latvia, cited above, § 62, with further references). On the basis of the evidence in their possession, the domestic courts established that A.S. had actually been exercising his rights of custody over the second applicant at the time of her removal by the first applicant, and that the change of the second applicant’s habitual residence had been carried out by the first applicant without his consent and had therefore been unlawful, triggering the duty under the Hague Convention to return the second applicant to Ukraine.",
"91. In the light of paragraphs 88-90 above, the Court finds that the impugned interference was “in accordance with the law” within the meaning of Article 8 of the Convention. It further finds that it had the legitimate aim of protecting the rights and freedoms of the child (the second applicant) and her father (A.S.).",
"92. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking a balance between the competing interests at stake, appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters. In this connection, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by this Article (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007).",
"93. In the present case A.S. submitted an application to the Russian authorities for the second applicant’s return under the Hague Convention within a short period of two months after the latter’s departure from Ukraine (see paragraph 24 above), and the judgments of the District Court and the Regional Court were delivered seven and nine months respectively after the applicants arrived in Russia. It follows that both the submission of the application for return to the Russian authorities and the domestic proceedings for the child’s return took place within the period of less than one year referred to in the first paragraph of Article 12 of the Hague Convention, which provides for an immediate return in such cases.",
"94. The Court notes, however, that the first applicant opposed the second applicant’s return to the place of her habitual residence in Ukraine – Donetsk – arguing that it would constitute “a grave risk” for the child within the meaning of Article 13 (b) of the Hague Convention. She claimed, in particular, that A.S. had been mistreating and neglecting the second applicant. She also argued that the child’s return to Ukraine would put her physical and emotional well-being at risk in view of the ongoing military conflict on the territory of the “DPR” of which Donetsk was a part (see paragraph 26 above). It was therefore for the domestic courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a “grave risk”. The Court must therefore ascertain whether the first applicant’s objections to her daughter’s return were genuinely taken into account by the domestic courts, whether the decisions on this point were sufficiently reasoned, and whether the courts satisfied themselves that adequate safeguards and tangible protection measures were available in the country of return (see Andersena v. Latvia, no. 79441/17, § 118, 19 September 2019).",
"95. Under Article 13 (b) of the Hague Convention, the courts examining the application for return are not obliged to grant it “if the person, institution or other body which opposes its return establishes that ... there is a grave risk”. It is the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. Furthermore, the Court notes that while the latter provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerns only the situations which go beyond what a child might reasonably bear.",
"96. The Court further reiterates that it is not its task to take the place of the competent authorities in examining whether there would be a grave risk that the second applicant would be exposed to psychological or physical harm, within the meaning of Article 13 of the Hague Convention, if she returned to Donetsk. However, as outlined in the general principles above (see paragraph 81 above), the Court is competent to ascertain whether the Russian courts, in applying and interpreting the provisions of that Convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see, most recently, Vladimir Ushakov v. Russia, no. 15122/17, § 96, 18 June 2019).",
"97. Turning to the circumstances of the present case, the Court observes that the District Court addressed the arguments advanced by the first applicant. It found the allegations of neglect and improper treatment of the child by A.S. unsubstantiated and refuted by the evidence in its possession (certificates, receipts, photographs and video materials). As regards the alleged existence of a “grave risk” associated with the place to which the child was to be returned in the State of her habitual residence – the ongoing military conflict in Donetsk – the District Court took the view that occasional military actions there did not as such constitute an exception relating to a very serious risk of harm to the child. The District Court considered that the alleged risk was a general consequence of living in a conflict zone and not individual to the child. In this connection, the District Court noted that, although the military conflict had been ongoing in Ukraine since April 2014, it had not been until 2016 that the first applicant had taken the second applicant to Russia. It further considered that she had not provided any evidence that the alleged risk could not be addressed by the competent Ukrainian authorities and that the second applicant’s removal from her habitual place of residence was the only possible way of protecting her from the alleged risk. The Regional Court endorsed the above reasoning of the District Court and held that the first applicant’s argument to the effect that the child’s return to her father in Donetsk would put her life and health at risk due to the military actions there had not been supported by relevant and admissible evidence.",
"98. The Court notes that the reasoning of the District Court related to the assessment of the gravity of the security situation in the place of the second applicant’s habitual residence in Ukraine – Donetsk – was rather scarce. So was the District Court’s assessment of the impact of this general security situation on the second applicant and of whether the level of such impact was sufficient to engage the “grave risk” exception under Article 13 (b) of the Hague Convention. In reaching the conclusion as to the absence of “a very serious risk of harm to the child”, the District Court did not take into account or rely on any Government reports, official documents from international organisations closely following the situation in Donetsk and/or travel advice detailing the security situation there at the material time. The Court cannot but observe at the same time that the situation in Donetsk could be easily ascertained by a wide number of sources, which unanimously attested to serious human rights violations and abuses in eastern Ukraine of which Donetsk was part, including thousands of conflict ‑ related civilian casualties and deaths counting both adults and children, the vast majority of which had been caused by shelling, including from artillery and large-caliber mortars (see paragraphs 48-52 above). Nor did the District Court assess whether or not the circumstances pertaining in Donetsk at that time had been more than isolated incidents in an unsettled political environment to reach the threshold for “grave risk”. It failed to consider the views of the second applicant expressed in the report of 21 July 2016 by the chief inspector of the local childcare authority, which mentioned, in particular, that she was afraid to return to Donetsk because she feared gunfire and exploding bombs (see paragraph 31 above), and therefore supported the argument that she would be at risk in the place where she was to be returned. Furthermore, the text of the District Court’s judgment remained silent on the availability of adequate and effective measures in the State of the second applicant’s habitual residence – Ukraine – to prevent or mitigate the alleged “grave risk” upon the child’s return, whether the parent left behind, A.S., could provide safety measures and whether the first applicant would have timely access to justice and court proceedings following the second applicant’s return.",
"99. Having regard to the foregoing, the Court considers that the “grave risk” allegation capable of constituting an exception to the second applicant’s return in application of Article 13 (b) of the Hague Convention was not genuinely taken into account by the Russian courts and that their decisions dismissing the first applicant’s objections were not sufficiently reasoned in order to enable the Court to ascertain that those questions were effectively examined and evaluated in the light of Article 8 of the Convention.",
"100. For these reasons, the Court concludes that the applicants suffered a disproportionate interference with their right to respect for their family life in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, the District Court having failed to carry out an effective examination of the applicants’ allegations under Article 13 (b) of the Hague Convention. There has accordingly been a violation of Article 8 of the Convention.",
"ALLEGED VIOLATION OF ARTICLES 2 AND/OR 3 OF THE CONVENTION",
"101. The applicants complained that the second applicant would face a risk of being subjected to treatment in breach of Article(s) 2 and/or 3 of the Convention if the judgment of the Tsentralniy District Court of Khabarovsk of 16 August 2016 ordering her return to Donetsk, Ukraine, was enforced. The first applicant further complained that this would also amount to a violation of her right not to be subjected to treatment proscribed by Article 3 of the Convention. The relevant part of Article 2 of the Convention reads as follows:",
"“Everyone’s right to life shall be protected by law...”",
"Article 3 reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"102. The Government submitted that the second applicant would not face a risk of being subjected to treatment in breach of Article(s) 2 and/or 3 of the Convention if the judgment ordering her return to Donetsk was enforced. Nor would enforcement of the judgment in question amount to a violation of the first applicant’s right not to be subjected to treatment proscribed by Article 3 of the Convention. The Government noted the absence of any evidence to the contrary. In this connection, they relied on the fact that in March 2016 A.S. had begun renting a flat outside the conflict zone, in Kramatorsk, where he intended to live with the second applicant following her return to Ukraine. The Government concluded that the applicants’ complaint should be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"103. Referring to reports by the United Nations regarding the civilian casualties in South-Eastern regions of Ukraine (Donetsk and Luhansk Regions) since the beginning of the military conflict in 2014 and by United Nations International Children’s Emergency Fund regarding the serious psychological trauma experienced by children in those regions because of the scale of violence they had witnessed, the applicants submitted that the second applicant’s return to Donetsk would put her physical and emotional safety at risk. They pointed to the recommendation of the Crisis Management Centre of the Russian Ministry of Foreign Affairs “to take into account the risks associated with the armed confrontation in the South ‑ Eastern regions of Ukraine (Donetsk and Luhansk Regions)” and “to avoid visiting the areas of past or present military conflict” as well as similar recommendations issued by other States, including, but not limited to, the United Kingdom, the United States of America and Canada. In such circumstances, the Russian courts’ conclusion that “occasional military actions in various settlements in Ukraine [did] not as such constitute an exception relating to a very serious risk of harm to the child” was arbitrary, as was their conclusion to the effect that the “risk [was] not individual to the child, but rather a general consequence of living in a conflict zone”. The applicants submitted that when it came to warfare or civil unrest, it was neither necessary nor possible to draw any distinction between a direct risk to a particular individual and the risk to which the relevant population is generally exposed. The applicants therefore considered that the insufficient analysis by the Russian courts of the circumstances involving alleged risks under Article(s) 2 and/or 3 of the Convention and their failure to give due consideration to international and domestic sources regarding the realities of life in Donetsk had in itself amounted to a breach of those provisions with respect to the second applicant. They further argued that the awareness of the risks and hardships the second applicant would be subjected to in Donetsk following her return, the feeling of helplessness caused by the inability to help her, and the anxiety and stress associated with this would inevitably cause serious psychological suffering to the first applicant, in breach of Article 3 of the Convention.",
"104. The Court notes that these complaints are linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible.",
"105. The Court further notes that it has already examined the principal arguments raised under Articles 2 and 3 of the Convention in relation to the second applicant in its considerations under Article 8. Having regard to its findings with respect to Article 8 (see paragraphs 94-100 above), it does not find it necessary to examine separately the complaints under Articles 2 and 3 in respect of the second applicant.",
"106. In so far as the first applicant complained that the second applicant’s return to Donetsk, Ukraine, would cause her serious psychological suffering in breach of Article 3 of the Convention, the Court notes that this complaint is inextricably intertwined with her complaint under Article 8 of the Convention. Having regard to its findings with respect to Article 8 (see paragraphs 94-100 above), it does not find it necessary to examine the same issue under Article 3.",
"RULE 39 OF THE RULES OF COURT",
"107. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.",
"108. It considers that the indication made to the Government under Rule 39 of the Rules of Court should remain in force until the present judgment becomes final or until the Court takes a further decision in this connection.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"109. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"110. The applicants claimed compensation for non ‑ pecuniary damage sustained as a result of the alleged violations of the Convention in an amount to be determined by the Court.",
"111. The Government considered that no award in respect of non ‑ pecuniary damage should be made in the present case.",
"112. The Court considers that, in the circumstances of the present case, the finding of a violation of Article 8 of the Convention constitutes sufficient just satisfaction for the applicants.",
"Costs and expenses",
"113. The applicants also claimed 40,000 euros (EUR) for legal fees incurred before the domestic courts and the Court, representing 160 hours of legal work at the rate of EUR 250 per hour, split up as follows: EUR 10,000 for the services of Mr E.A. Mezak, and the remaining EUR 30,000 for the services of Mr A.N. Laptev. In support of this claim, the first applicant submitted a copy of a legal services agreement with Mr A.N. Laptev dated 10 February 2016, and a copy of a legal services agreement with Mr E.A. Mezak and Mr A.N. Laptev dated 11 November 2016, obliging the first applicant to pay, within three months of the judgment of the Court becoming final, legal fees in the amount of EUR 250 per hour. The amount in respect of legal fees was to be paid directly into the representatives’ bank accounts. The applicants further claimed EUR 6 in postal expenses. They submitted the relevant receipt.",
"114. The Government considered that the applicants’ claims were excessive and unsubstantiated. The case was not complex and the case file was not voluminous. An hourly rate of EUR 250 for the work of the applicants’ representatives was unreasonable. Furthermore, it had not been shown that the costs and expenses claimed had been actually incurred.",
"115. According to the Court’s case-law, an applicant is entitled to the reimbursement of his costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 130, ECHR 2016, and, more recently, Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017). A representative’s fees are considered to have been actually incurred if an applicant has paid them or is liable to pay them (see Ždanoka v. Latvia, no. 58278/00, § 122, 17 June 2004, and Merabishvili, cited above, § 372).",
"116. The Court notes that Mr E.A. Mezak did not seek leave to represent the applicants after the notification of the case to the Government, in accordance with Rule 36 §§ 2 and 4 (a) of the Rules of Court. The Court therefore rejects the applicants’ claim for legal fees in respect of Mr E.A. Mezak (see Terentyev v. Russia, no. 25147/09, § 32, 26 January 2017).",
"117. Having regard to the documents in its possession, the criteria outlined in paragraph 115 above, and bearing in mind that the applicants were granted EUR 850 in legal aid for their representation by Mr A.N. Laptev, the Court considers it reasonable to award the sum of EUR 4,150 covering costs under all heads. The award should be paid directly into the bank account of Mr A.N. Laptev.",
"Default interest",
"118. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
57 | Wagner and J.M.W.L. v. Luxembourg | 28 June 2007 | This case concerned a civil action seeking to have an adoption decision pronounced in Peru declared enforceable in Luxembourg. The Luxembourg courts had dismissed the application as the Civil Code made no provision for full adoption by a single woman. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention because of the Luxembourg courts’ failure to acknowledge the family ties created by the full adoption granted in Peru, and a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8, the child (and her mother as a result) having been penalised in her daily life on account of her status as the adoptive child of an unmarried mother of Luxembourg nationality whose family ties created by a foreign judgment were not recognised in Luxembourg. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants were born in 1967 and 199 3 respectively and are resident in Luxembourg.",
"6. On 6 November 1996 the Family Court of the province of Huamanga ( Peru ) pronounced the adoption of the second applicant, then aged three years and previously declared abandoned, by the first applicant. The judge listed the various stages of the adoption procedure which had been completed in accordance with the legal conditions. By the judgment the child acquired the status of daughter of the first applicant, ceased to belong to her blood family and henceforth bore the forenames and names J.M.W.L. In accordance with the legal conditions and the agreement drawn up between the technical secretariat for adoptions in Peru and the Luxembourg-Peru Association, the latter was declared responsible for monitoring the child and, if necessary, for the legalisation of the adoption in Luxembourg.",
"7. The judgment of the Family Court of the province of Huamanga was declared enforceable – according to the certificate issued by that court on 14 December 1996 – and entered in the civil status register of Ayacucho ‑ Huamanga.",
"8. In May 1997 the first applicant, who lived alone in Luxembourg with the adopted child, gave birth to a daughter. On 13 November 2006 her lawyer stated that she was now the mother of four children attending school and still lived in Luxembourg.",
"A. Proceedings instituted before the civil courts for a declaration that the Peruvian judgment pronouncing full adoption was enforceable in Luxembourg",
"9. On 10 April 1997 the applicants brought proceedings against the Attorney General's Department before the Luxembourg District Court. They requested the court to declare that the Peruvian judgment was enforceable in the Grand Duchy as though it were a judgment ordering full adoption delivered by the competent Luxembourg court; they stated that the purpose of the application for enforcement was to ensure that the child could be registered in the civil status register in the Grand Duchy, acquire the nationality of her adoptive mother and be granted definitive leave to remain in Luxembourg.",
"1. Judgment of the District Court of 11 February 1998",
"10. On 11 February 1998 the District Court declared the application for enforcement admissible as it had been properly submitted by originating summons. In that regard, the court stated the following :",
"“ An application for enforcement of a foreign judgment is a principal legal claim different in nature from the application that gave rise to the foreign judgment. The court dealing with the application for enforcement does not examine the merits of the application submitted to the foreign court, but confines itself to verifying that the decision satisfies the relevant international procedural requirements. The application for enforcement of an adoption judgment, which is different in nature from the application to adopt, is not subject to the objection procedure in [the relevant article] of the Code of Civil Procedure, under which applications to adopt may be made by petition ... ”",
"11. The court decided that a court dealing with an application for enforcement of an adoption judgment delivered by a foreign court must first of all ascertain whether the foreign court was competent by reference to the rules determining its jurisdiction. On that point, the court concluded that the adoption had been pronounced by the court that was competent according to Article 370 of the Luxembourg Civil Code.",
"12. As for the law applicable to the merits of the case, the court first of all recalled the positions taken by the parties to the proceedings.",
"Thus, the Attorney General's Department maintained that the court should ascertain whether the foreign court had applied the law designated by the Luxembourg system of private international law. As the adoptive parent was of Luxembourg nationality, the conditions for adoption were governed by Luxembourg law; and Article 367 of the Luxembourg Civil Code did not permit full adoption by an unmarried person. The Attorney General's Department concluded that in pronouncing full adoption by the first applicant, as an unmarried person, the Peruvian court had failed to apply Luxembourg law.",
"The applicants were of the view that the court should confine itself to examining whether the adoption pronounced in Peru had been made according to the procedures prescribed by the laws of Peru. They submitted, in particular, that the final paragraph of Article 370 of the Luxembourg Civil Code must be interpreted as meaning that “ the Luxembourg international rule on conflict expressly recognises as valid an adoption made abroad by an authority competent under the laws of that country, ... provided that the local procedure and local provisions were complied with ”.",
"The court decided that the final paragraph of Article 370 of the Civil Code introduced a rule on jurisdiction and also maintained its rules on the conflict of laws. It added that according to Article 370 of the Civil Code the adoption by the first applicant, of Luxembourg nationality, was governed by Luxembourg law with respect to the requisite conditions for adoption. The court concluded that the court dealing with an application to enforce the decision must ascertain whether the adoption had been pronounced in accordance with Luxembourg law with respect to those conditions.",
"13. The court then stated that it had adjourned the deliberations on 11 November 1997 to enable the parties to submit their observations on the following preliminary questions which it proposed to refer to the Constitutional Court :",
"“ 1. The law on adoption, more particularly Article 367 of the Civil Code, allows a married couple to adopt a child fully and prohibits full adoption by an unmarried person. Is that law consistent with Article 11(3) of the Constitution, which provides that'the State guarantees the natural rights of human beings and the family'and Article 11(2) of the Constitution, which states that'Luxemburgers are equal before the law'?",
"2. Is the right to found a family a natural right of human beings and the family?",
"3. Is the right to found an adoptive family a natural right of human beings and the family?",
"4. Does the right to found a family include the right to found a single-parent family?",
"5. Is the right to found a family a right of only married human beings?",
"6. Does the principle of equality before the law allow full adoption to be authorised for married persons to the exclusion of unmarried persons?",
"7. Do Articles 11(2) and (3) of the Constitution establish rights of an unmarried person to full adoption on the same terms as those applicable to a married couple? ”",
"14. The court confirmed that it must examine the correct application of Article 367 of the Civil Code and its conformity with the Constitution before adjudicating on the application for enforcement. In order to do so, the court requested the applicants to clarify their actual family situation, on the following grounds :",
"“ By submissions of 15 December 1997 Ms Jeanne Wagner's representative maintained that the Wagner family existed in fact and in law and that it was not a single-parent family. He also submitted that nowadays'the more general acceptance by society of unmarried cohabitation has led to an increase in the number of children living in a single home with a father and mother who are not married. It is less and less certain that the parents need to be married in order for the child to grow up in a home with a father and a mother'.",
"If those submissions have any meaning, Ms Jeanne Wagner is living as part of a couple without being married.",
"... The assertion of the existence of a family which is not a single - parent family is new and not substantiated by any evidence.",
"The social inquiry report of 6 August 1997, which was submitted to the court on 28 October 1997, states that Ms Jeanne Wagner gave birth to a daughter in May 1997. That report on the adaptation of the adopted child in her new family in Luxembourg examines only the relationship between the mother and the child. It does not mention the existence of a man in Ms Wagner's home or any relationship between the adopted child and Ms Wagner's partner.",
"The pre-adoption report drawn up on 30 April 1996, also by social worker [B.], states as the general reason for adopting the conviction that'children are the purpose of life'. Ms Wagner was approaching her thirtieth birthday and decided'not to wait to meet the ideal man in order to have children but to adopt a child on her own, in the knowledge that her family would help her ...'",
"As the reason for adopting a Peruvian child, the social worker observed that in Luxembourg Ms Wagner encountered many obstacles, mainly the fact that she was not married.'The only country which has an agreement with Luxembourg and which consents to adoption by an unmarried woman is Peru and thus Ms Wagner contacted the Luxembourg-Peru Association and prepared the file through that association'. The social worker recommended that the adoption should be approved, as the child found a welcoming home'within that “ single-parent ” family'.",
"The reports filed by the applicant therefore mention only a family consisting of the mother and two children.",
"It is important to refer to the Constitutional Court questions which are appropriate to the adoptive parent's actual family situation. Adoption by a family consisting of an unmarried couple may receive a different reply from that given to adoption by an unmarried mother living alone. It is therefore for the adoptive parent to establish her actual family situation and to establish that her family is not a single-parent family. ”",
"15. The hearing was resumed on 10 March 1998.",
"2. Judgment of the District Court of 1 April 1998",
"16. In its judgment of 1 April 1998, the court first of all set out the views expressed by the applicants in relation to the proposed preliminary questions. Thus, the applicants, first, emphasised that the court was dealing with an application for enforcement and not an application to adopt and, second, took issue with the proposed questions because they emphasised the rights of the mother, whereas the real issue was the rights of the child adopted following the Peruvian judgment. The applicants also observed that the first applicant had given birth to a child in May 1997, and proposed the following preliminary questions :",
"“ 1. Is the right to secure from the Luxembourg courts recognition of a family relationship validly established abroad for the purposes of securing recognition that the adopted child has the same political and civil rights as a biological child of the adoptive mother a natural right of the human being, and more particularly of an adopted child?",
"2. In so far as Article 367 of the Luxembourg Civil Code must, in spite of the substance of Article 370, final paragraph, be considered to constitute an obstacle to the recognition of a full adoption lawfully made abroad by an unmarried mother of Luxembourg nationality, and must be so considered in spite of the substance of Articles 7 and 21 of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989, as approved by the Law of 20 December 1993, does not the principle of equality before the law set forth in Article 11(3) of the Constitution require recognition of that full adoption in so far as such recognition is necessary in order for the adopted child to be able to enjoy all her political and civil rights to the same extent as her biological collaterals?",
"Does the principle of equality before the law allow a difference in treatment to be created by the law, in particular with respect to the entry of the adoption in the civil status register, the issuing of the certificate of nationality and the situation regarding succession, in complete legal certainty between a non-marital child and an adopted child of the same mother? ”",
"17. The court then gave judgment in the following terms :",
"“ The court must ascertain whether the conditions prescribed by Luxembourg law for adoption were satisfied at the time when the adoption was pronounced by the Peruvian judge. In fact, Ms Wagner is an unmarried woman who, according to Article 367 of the Civil Code, cannot undertake a full adoption. The question that arises is therefore whether the prohibition on full adoption by an unmarried person is compatible with the constitutional rights in Article 11(3) and (2), that is to say, any rights enjoyed by the mother, and not by the child.",
"When ensuring that the decision to be enforced satisfies the relevant international procedural requirements, the court must examine whether the foreign court was in a position to pronounce the adoption by reference to the conditions on adoption provided for by the relevant Luxembourg legislation.",
"The establishment of a constitutional right to adopt without discrimination between married persons and unmarried persons does not preclude the specific assessment of the physical and mental situation of the persons wishing to adopt and of their capacity to raise and contribute to the development of a child. It may be that the right to family life is not recognised where the best interests of the child would be in danger. The existence of a right is distinct from its actual exercise.",
"As Ms Wagner is an unmarried woman not living as part of a couple, the questions which correspond to her family situation relate to a single-parent family.",
"The questions envisaged by the court on 11 November 1997 are therefore relevant to the outcome of the dispute.",
"Examination of the existence of “a right to secure recognition” in Luxembourg “of a legal parent-child relationship validly established abroad” assumes that the valid creation of an adoptive parent-child relationship within the meaning of Luxembourg law is established. The first preliminary question proposed by Ms Wagner is irrelevant, as the lawfulness of the Peruvian adoption has not been established.",
"Examination of the second question proposed must be reserved. As matters now stand, the questions envisaged by the court on 11 November 1997 should be referred. ”",
"3. Judgment of 13 November 1998 of the Constitutional Court",
"18. On 13 November 1998 the Constitutional Court declared the questions numbered 2 to 7 (paragraph 13 above ) inadmissible. As for the first question, it decided that Article 367 of the Civil Code was not contrary to the Constitution, for the following reasons :",
"“ Regarding Article 11(3) of the Constitution :",
"... Article 11(3) of the Constitution states that the State guarantees the natural rights of human beings and the family;",
"... natural rights are those flowing from human nature and exist, even without a legislative text; ... applied to the family, they include the right to procreate and the right to live together;",
"..., in parallel, the legislature has established, by adoption, a substitute legal parent-child relationship which, while it demands proper motives on the part of the adoptive parents, must above all be advantageous for the person adopted;",
"... [adoption] has its basis in positive law and not in natural law; ... it is therefore for the legislature to put in place all the conditions and limits necessary for its proper functioning and satisfying the interests of society and of the adoptive family;",
"Regarding Article 11(2) of the Constitution :",
"... Article 11(2) of the Constitution provides that'all Luxemburgers are equal before the law';",
"... that constitutional principle, which is applicable to every individual affected by Luxembourg law if personality rights are concerned, is not to be understood in an absolute sense, but requires that all those in the same factual and legal situation be treated in the same way;",
"... the specific treatment is justified if the difference in condition is effective and objective, if it is in the public interest and if the extent of its application is not unreasonable;",
"... the specific treatment is lawful in the present case as it is based on a genuine distinction resulting from the civil status of the persons, on an increased guarantee in favour of the adopted child as a result of the number of persons holding parental authority in the case of married persons and on reasonable proportionality owing to the fact that simple adoption remains available to an unmarried person in compliance with the procedural and substantive requirements provided for by law; ”",
"4. Judgment of the District Court of 2 June 1999",
"19. On 2 June 1999 the district court dismissed the application for enforcement, on the ground that the Peruvian adoption judgment had been delivered contrary to the Luxembourg law applicable according to the rule on the conflict of laws set forth in Article 370 of the Civil Code.",
"20. The court upheld the argument of the Attorney General's Department that the Peruvian judge had not applied Luxembourg law by pronouncing full adoption by an unmarried Luxembourg woman.",
"21. The court concluded that there was no need to consider whether the Peruvian decision was contrary to public policy. In that regard, however, it made the following observation :",
"“ ... according to the pre-adoption social inquiry report of 30 April 1996, Ms Wagner chose to adopt in Peru, through the Luxembourg-Peru Association, since Peru permits adoption by an unmarried woman, whereas she encountered various obstacles to adoption in Luxembourg, mainly because she was not married.",
"Ms Wagner therefore decided to obtain indirectly, by enforcement of the adoption in Peru, what she was unable to obtain directly by an application to adopt in Luxembourg. However, a judgment obtained by circumventing the statutory requirements cannot be enforced. ”",
"22. The court then dealt with the second preliminary question which had been proposed by the applicants at the earlier hearing :",
"“ The judgment of April 1998 reserved the alternative preliminary question proposed by Ms Wagner. In the event that Article 367 of the Civil Code precluded full adoption, Ms Wagner proposed that the Constitutional Court should examine whether the principle of equality allowed a difference in treatment to be created by law, notably with respect to the entry of the adoption in the civil status registers, the issuing of a certificate of nationality and the situation regarding succession between the non-marital child and the adoptive child of the same mother. In her submissions lodged after the decision of the Constitutional Court, Ms Wagner maintained that proposal for a preliminary question..",
"Under [the relevant section] of the ... Constitutional Court (Organisation) Act, a court before which a party has raised a question relating to the constitutionality of a law is not required to refer the matter to the [Constitutional] Court if the question is wholly unfounded or if the [Constitutional] Court has already ruled on a question having the same subject-matter.",
"... As the [Constitutional] Court decided [in its judgment of 13 November 1998] that adoption was not a constitutional right but was a matter for legislation, and on the basis that the law may introduce a distinction between persons having different civil status, the preliminary question proposed by Ms Wagner is wholly unfounded.",
"The question also seeks to secure a review of the compatibility of the law on adoption, which prohibits full adoption by an unmarried person, with the principle of equality and the right to family life. The [Constitutional] Court held that biological filiation and adoptive filiation were different in nature, the former coming under natural law protected by the Constitution and the latter created by the legislature. It also decided that the principle of equality applied to those in the same factual and legal situation.",
"As an adoptive child is in a legal and factual situation distinct from that of a non-marital child and as the principle of equality assumes that the situation of the persons is the same, the proposed question is unfounded.",
"There is thus no reason to refer the question to the Constitutional Court. . ”",
"23. Lastly, the court rejected the argument put forward by the applicants on the basis of the Convention on the Rights of the Child, for the following reasons :",
"“ Ms Wagner maintains that public policy and the Convention on the Rights of the Child require that the adoption decision be enforced. As the best interests of the child are to be a primary consideration, in application of Article 3 of the Convention, the adopted child should have the same rights as her'biological'sister, the mother's non-marital child.",
"The interests of the child may be assessed by the legislature. Luxembourg law accepts that it is in the interests of children to be fully adopted by a married couple and not by an unmarried person. The court must therefore apply that statutory provision. ”",
"5. Judgment of the Court of Appeal of 6 July 2000",
"24. On 7 July 1999 the applicants appealed against the judgments of 11 February 1998, 1 April 1998 and 2 June 1999.",
"25. They requested the Court of Appeal to declare the judgment of the Huamango Family Court of 6 November 1996 enforceable in Luxembourg and to order that the forthcoming judgment be entered in the civil status registers.",
"26. In support of their appeal, the applicants maintained first of all that Article 367 of the Civil Code – a rule of strictly territorial application determining the conditions of an application for full adoption coming within the jurisdiction of the Luxembourg courts – was not a reason to dismiss an application for enforcement of a foreign decision, since the court dealing with the application to enforce the decision had no power of review and was not empowered to alter the effects of the adoption pronounced by the Peruvian court. They further maintained that under Article 370, final paragraph, of the Civil Code a foreign adoption decision could be enforced in Luxembourg provided it had been delivered by a competent court according to the rules on the conflict of laws and the procedures of the country of origin. Thus, the final paragraph of Article 370 was not a simple rule on jurisdiction but a rule on the conflict of laws.",
"27. The applicants also maintained their request that the preliminary question which they had formulated before the district court be referred to the Constitutional Court.",
"28. In a section entitled “ Public policy implications ”, the applicants contended that the procedure for securing recognition of the effects of a full adoption pronounced abroad differed from the procedure for pronouncement of an adoption in Luxembourg, so that the impact of the questions of public policy arose in different terms and did not have the same weight. Next, relying on the Convention on the Rights of the Child, they submitted that the best interests of the child consisted in favouring the effects of a full adoption, in particular the right to acquire Luxembourg nationality and to share in the succession of the adoptive family on the same basis as a legitimate or non-marital child. While they acknowledged that a new simple adoption could be made in Luxembourg, they emphasised that it would grant less substantial rights to the child, particularly in relation to succession and the acquisition of Luxembourg nationality. In the applicants'submission, it was specifically public policy that required enforcement, so that the adoptive child would be granted the same rights as her biological sister and so that legal calm rather than uncertainty would reign in the families. They cited a decision of the district court, which, in a different context, had held that an interference with the right for the father and mother to maintain relations with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. They contended that in this case the judgment at first instance – which gave priority to Luxembourg law over an international convention as a ground for refusing to order enforcement – penalised the minor child and was incompatible with Article 8 of the Convention.",
"29. By judgment of 6 July 2000 the applicants'appeal was declared unfounded. The Court of Appeal held, in the first place, the following :",
"“ By way of preliminary point, it should be observed that while foreign judicial decisions on the status of persons enjoy immediate substantive effectiveness in the Grand Duchy of Luxembourg, provided only that they satisfy the relevant international procedural requirements, they none the less may and even must be enforced in order to render them incontestable and enforceable by execution and to enable the acts necessary to enforce them to be carried out.",
"In this case, recognition of the Peruvian adoption decision is sought, not only to ensure that the adopted child has the same succession rights as those recognised by Luxembourg law to a legitimate or non-marital child, but also to avoid problems arising in the future as a result of the fact that the child has not lost Peruvian nationality by the effect of her adoption in her country of origin and, in the absence of a decision recognising the foreign judgment, does not acquire Luxembourg nationality, at least for the time being, and cannot in those circumstances benefit from the advantages conferred on nationals of the countries of the European Union. ”",
"30. The Court of Appeal then analysed the scope and significance of the final paragraph of Article 370 of the Civil Code and reached the following conclusion :",
"“ The [District] Court was correct to take the view that the Luxembourg court dealing with the application to enforce the Peruvian judgment must ascertain whether the adoption was made in conformity with the Luxembourg rules on the conflict of laws, as provided for in Article 370 of the Civil Code, and to dismiss the application on the ground that the Peruvian judgment pronouncing full adoption in favour of an unmarried Luxembourg national is in flagrant contradiction with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent.",
"It is therefore unnecessary to examine further the other conditions required for enforcement, namely conformity to international public policy and circumvention of the law. ”",
"31. The Court of Appeal also concluded that the applicants were wrong to rely on the Convention on the Rights of the Child, for the following reasons :",
"“ Article 7 of that Convention, approved by the Law of 20 December 1993, provides in paragraph 1 that the child is to be registered immediately after birth and is to have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.",
"Article 21 provides that States Parties that recognise and/ or permit the system of adoption are to ensure that the best interests of the child shall be the paramount consideration, and sets out the obligations placed on the Contracting States in that regard (paragraphs (a) and (b) of that article).",
"The Court agrees with the Attorney General's representative, who maintains ... that Articles 7 and 21 cannot be applied directly in order to secure recognition of a foreign full adoption decision pronounced in breach of our national laws.",
"...",
"The [applicants] are wrong to rely on the abovementioned Articles of the Convention to secure recognition of a foreign adoption made in compliance with its legal rules, which, it is emphasised, are very strict, but in breach of Luxembourg law, which rightly or wrongly maintains the principle that full adoption by an unmarried person is prohibited, since Article 21 does not require the States Parties to alter their national legislation in that sense, a fortiori because it is not established that such a change in the legislation would be in the paramount interest of the child, quite apart from any political or moral considerations which influence the legislative choices according to current thinking.",
"Article 7, on which the applicants rely, concerns at most only the effects of the adoption, but has no bearing on whether an adoption decision satisfies the relevant international procedural requirements. ... ”",
"32. Last, the Court of Appeal considered that the first-instance court had been correct not to deem it appropriate to refer the preliminary question formulated by the applicants to the Constitutional Court.",
"6. Judgment of the Court of Cassation of 14 June 2001",
"33. On 8 December 2000 the applicants appealed on a point of law.",
"34. On 14 June 2001 the Court of Cassation dismissed the appeal, for the following reasons :",
"“ The first ground of appeal,",
"alleging “breach, if not misapplication of the law, in the present case of Article 370, final paragraph of the Civil Code, which provides that in the event of conflict between the rules of competence prescribed respectively by the national law of the adoptive parent and by that of the adopted child, the adoption is validly concluded according to the procedure prescribed by the law of the country in which the adoption took place and before the authorities competent under that law, in that the judgment considered that the word'procedure'had only the meaning of'procedural rule'and did not include the substantive conditions whereas, first part, the text of Article 370 speaks in unequivocal terms of'procedures'and not restrictively of'procedural rules', so that the scope of the legislative text cannot be restricted by the implicit addition thereto of words which it does not contain, in this case the word'rule'; second part the word'procedure'employed by the legislature in the specific context of the final paragraph of Article 370 is not limited to procedural rules in the strict sense, but covers both the latter and the substantive rules, and therefore legal'procedures'in the broad, flexible and general sense, the legislature having clearly displayed its intention to properly encompass in the word'procedure'both the substantive conditions and procedural conditions properly so called”;",
"But ... in agreeing with the court of first instance that the Peruvian full adoption decision was delivered in contradiction to the Luxembourg law on the conflict of laws, which provides in paragraph 2 of Article 370 of the Civil Code that the conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent, the Court of Appeal made a correct application of the law without being in breach of the legislative text referred to in the two parts of the ground of appeal;",
"... it follows that the ground of appeal cannot be upheld;",
"The second ground of appeal,",
"alleging “ misapplication, if not violation of Article 8 of the [Convention], which provides that there is to be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and of Article 89 of the Constitution, which provides that every judgment must state the reasons on which it is based, in that the judgment did not even examine the appellants'plea based on Article 8 paragraph 2 of the [Convention], when the best interests of the child ought to have led the decision under appeal, on the assumption that Article 370, final paragraph, of the Civil Code is not to be interpreted as meaning that an adoption lawfully concluded abroad cannot be repudiated, to refuse to apply the Luxembourg domestic rule, which prevents an unmarried woman of Luxembourg nationality from fully adopting a minor child, in such a way as to apply Luxembourg law to her, and that the intention of the Luxembourg legislature to require an unmarried woman to marry if she wishes to undertake full adoption of a child, in such a way as to ensure that that child enjoys all the privileges attached to Luxembourg and Community nationality constitutes an unnecessary interference with family life ... ”",
"But ... first, the Court of Appeal was not required to respond to the ground of appeal set out in the document initiating the appeal under the heading “ Public policy implications ”, as that question had become devoid of purpose by the very effect of its decision not to apply the foreign law;",
"..., second, owing to their dubious, vague and imprecise nature, the arguments relating to Article 8 paragraph 2 of the Convention on Human Rights contained in the document initiating the appeal did not constitute a ground of appeal requiring a response;",
"Whence it follows that the plea cannot be upheld. ”",
"B. Proceedings before the administrative courts under the Hague Convention of 29 May 1993 on protection of children and cooperation in respect of intercountry adoption",
"35. On 5 August 2003 the applicants requested the Minister for the Family, Social Solidarity and Youth to take the necessary measures to enable the adoption pronounced by the Peruvian judgment of 6 November 1996 to be entered as a full adoption recognised by the Luxembourg authorities in the civil status register with competence ratione territoriae in application of the Hague Convention of 29 May 1993.",
"36. On 12 August 2003 the Minister declared that the provisions of the Hague Convention were not applicable to the applicants'request.",
"37. On 13 September 2003 the applicants sought judicial review of that decision.",
"38. By judgment of 19 January 2004 the administrative court of first instance ( Tribunal administratif ) annulled the ministerial decision, for the following reasons :",
"“ ... the [Hague Convention of 29 May 1993] was adopted by Luxembourg law on 14 April 2002 and entered into force on 1 November 2002 in the Grand Duchy of Luxembourg, on which date it is common ground that the Convention was already in force with respect to Peru;",
"... from 1 November 2002 the Hague Convention has therefore been in force between the two countries concerned by the present case: Peru, the State of origin, and the Grand Duchy of Luxembourg, the receiving State, as defined in Article 2 of the Convention;",
"... the Convention states in Article 41 that it is to'apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin';",
"... Article 14 of the Convention states that'[p]ersons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence';",
"... it follows from the Explanatory Report drawn up by Mr G. Parra-Aranguren, the Venezuelan representative in the proceedings of the 17 th Hague Conference which culminated in the Convention of 29 May 1993, and more particularly paragraphs 584 and 585 thereof (doc. Parl. 4820, page 95), that a second paragraph had indeed been envisaged at a particular time during the drafting of what became Article 41, but that that paragraph was abandoned for the reasons explained more fully in that report as follows:'584. Working document no. 100, submitted by the Permanent Bureau, suggested a second paragraph for the article with the following text: “ A Contracting State may at any time by declaration extend the application of Chapter V (Recognition) to other adoptions certified by the competent authority of the State of the adoption as having been made in accordance with the Convention”. The idea behind the proposal was to give a rule to answer the question as to the validity of adoptions already made in the Contracting States when a State becomes a Party to the Convention.",
"585. Some participants considered that proposal ambiguous and suggested its deletion or its clarification, at least, but others sustained it. The Observer for the International Commission on Civil Status observed that it was unnecessary and dangerous, because the formulation might permit a wicked conclusion, if interpreted a contrario, since the natural consequence of a State becoming a Party to the Convention is to recognise adoptions already made in the Contracting States. Therefore, the “declaration” provided by the second paragraph could be interpreted as permitting the non-recognition of such adoptions and, for this reason, the proposal was rejected'; ...",
"... for the purposes of application ratione tempore it is appropriate to distinguish the situation of the application properly so called of the Convention in the words of Article 41 concerning adoption procedures to be initiated and that relating to adoptions previously carried out, which by definition no longer have to follow the procedure provided for in Article 14 of the of the Convention, and raising more particularly aspects of recognition and re-entry on the competent registers of civil status;",
"... although the text of Article 41 gives rise to no doubt concerning the applicability of the Convention in all cases where an application referred to in Article 14, in initial act of the procedure there referred to, was received after the entry into force of the Convention in the receiving State and in the State of origin, reliance on that Convention for other aspects relating more particularly to the recognition and entry of adoptions previously carried out in the State of origin do not fall directly under the wording of Article 41;",
"... the fact that two States, by definition the State of origin and the receiving State, have become parties to the Convention and have adopted it in such a way that it has entered into force in both States means that these States have thereby adopted the provisions of the Convention as being henceforth required to be the general law, at a superior level, having to govern the respective relationships concerning the nationals of both States in adoption matters;",
"... the adoption of such a superior general law in adoption matters consists by the very organisation of the Convention, in the light of the objectives which it pursues, a favor adoptioni to which these two States have thus subscribed in the best interests of the adoptive children concerned;",
"... it follows that an application for recognition and entry in the relevant registers of civil status of an adoption carried out before the entry into force of the Convention in the State of origin is governed by the provisions of the Convention contained more particularly in Chapter V, entitled “Recognition and effects of the adoption ”, from the time when the relevant application, submitted not with a view to adoption but with a view to recognition and entry of an adoption which has already taken place, was submitted after the entry into force of the Convention in the receiving State and the State of origin;",
"... the applicant has also placed on the file a certificate issued by the competent authority of the Contracting State in which the adoption took place, capable of being read as being consistent with the Convention;",
"... it follows from all the foregoing developments that the contested ministerial decision was wrong ... to refuse to undertake a more thorough examination of the abovementioned application of 5 August 2003 by rejecting the application of the provisions of the Hague Convention of 29 May 1993, which had been in force between Peru and the Grand Duchy of Luxembourg since 1 November 2002;",
"... the contested ministerial decision must therefore be annulled for violation of the law;",
"... since preference should be given to any solution found at a non-contentious level and since the Minister did not afford herself the opportunity to examine the merits of the application in question more thoroughly, the case should be sent back to the Minister for further consideration ...; ”",
"39. On appeal by the Minister for the Family, Social Solidarity and Youth, the higher administrative court ( Cour administrative ) on 1 July 2004 varied the judgment of the administrative court of first instance and declared the action for annulment unfounded, for the following reasons :",
"“ Upon reading the Hague Convention, it must be found that there is no clause as to the possible application of the provisions of that Convention in a case where, at the time of the facts, that is during the implementation of the adoption procedure, it was ratified by only one of the States involved in an intercountry adoption and entered into force only in that State. On the contrary, Article 41 of the Hague Convention expressly states that'[t]he Convention shall apply in every case where an application pursuant to Article 14 [of the Convention] has been received after the Convention has entered into force in the receiving State and the State of origin'. Furthermore, it should be observed that Article 14 of the Convention obliges persons wishing to adopt a child in another State to apply first of all to the Central Authority in the State of their habitual residence, and thereby to take the first step in an intercountry adoption procedure.",
"In the light of those clear and precise provisions, it is impossible to grant the application as submitted to the Minister for the Family by the present respondents and seeking to have the Hague Convention applied to an intercountry adoption procedure which took place at a time when the Hague Convention was in force only with respect to the State of origin of the child to be adopted, namely, Peru, and not with respect to the receiving State of that child, namely, the State in which the adoptive mother was resident, that is, Luxembourg.",
"That finding is supported by the fact that the mechanism as put in place by the Hague Convention, with the specific aim of ensuring recognition in the receiving State of an adoption carried out in the State of origin, is based on close cooperation between the competent authorities of both States thus concerned ...",
"The fact that the certificate of conformity issued by the Peruvian central authority concerning the abovementioned adoption decision is similar to that required by ... the Hague Convention, for the purpose of ensuring that the adoption carried out in one of the Contracting States of the Hague Convention is recognised in the other Contracting States, does not in itself suffice to render the provisions of the Convention applicable and to ensure that the adoption carried out in Peru is recognised in Luxembourg, since by definition that certificate was unable to attest that all the formalities provided for by the Hague Convention had been complied with, since the procedure regulated in that Convention as being mandatory could not be followed when Luxembourg was not a party to the Convention at the time when the adoption procedure took place in Peru. ”",
"C. Simple adoption procedure",
"40. In their observations, which were received at the Court on 18 February 2005, the applicants stated that they would “lodge in the near future an applicant for simple adoption according to Luxembourg law, as a precautionary measure”. At the hearing before the Court, they stated that that application had in the meantime led to a simple adoption judgment (delivered on an unspecified date) which did not take account of the full adoption pronounced in Peru.",
"i. Conditions to be satisfied by the adoptive parents",
"44. As a matter of principle, adoption is by a married couple. Thus, Article 367 of the Civil Code provides as follows :",
"“ An application to adopt may be made by a married couple who are not judicially separated, one of whom is at least twenty-five and the other at least twenty-one years old, on condition that the adoptive parents are fifteen years older than the child whom they propose to adopt and that the child to be adopted is under the age of sixteen. ”",
"45. Full adoption by a single person is an exceptional situation. The law provides for only one possibility : that of full adoption applied for by a spouse in favour of the child of his or her spouse.",
"ii. Effects of full adoption",
"46. Article 368 of the Civil Code provides as follows :",
"“ Adoption shall confer on the adopted child and on his or her descendants the same rights and obligations as though he or she were born of the marriage of the adoptive parents. That legal parent-child relationship shall replace his or her original parent-child relationship and the adopted child shall cease to belong to his or her blood family ... ”",
"47. The adoptive parents alone are invested, with respect to the adopted child, with all the rights of parental authority.",
"48. Prior to the Law of 23 December 2005, adoption conferred on the child the surname of the husband. Since that Law, the effect of Article 57 in conjunction with Article 368-1 of the Civil Code is that the adoptive couple choose the name to be given to the adopted child; the child may acquire either the name of his or her father, or the name of his or her mother, or both names together, in whichever order the adoptive parents may choose, with a maximum of one name for each parent.",
"49. The child has the same inheritance rights in respect of his or her adoptive parents as the legitimate children. From a taxation point of view, the adoptive child is not required to pay inheritance tax where he or she inherits in the direct line.",
"50. Under section 2 ( 1 ) of the Law of 22 February 1968 on nationality, as amended, a child who has been fully adopted by a Luxemburger obtains Luxembourg nationality. Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, confirms the terms of that provision.",
"51. The same mutual maintenance obligations are created between the adoptive parents and the adopted child as those existing between blood relatives.",
"52. The transcription of the adoption judgment takes the place of a birth certificate for the adopted child. It contains no indication of the child's original filiation. The original birth certificate is marked “ adoption ”.",
"b) Simple adoption",
"53. The principles and effects of simple adoption may be summarised as follows (G. Ravarani, op. cit. ).",
"54. Although it constitutes the general rule for adoption, simple adoption is much rarer than full adoption. It normally occurs only where full adoption is impossible, for example where the person to be adopted is over the age of 16 or where the person wishing to adopt is single.",
"i. Conditions to be satisfied by the adoptive parents",
"55. The conditions are the same as in the case of full adoption, except that simple adoption by one person is possible. More than one person cannot adopt the same child, except in the case of a married couple. Article 344 of the Luxembourg Civil Code provides the following :",
"“ An application to adopt may be made by any person over the age of twenty-five. ”",
"ii. Effects of simple adoption",
"56. While simple adoption in many respects resembles full adoption – it confers a new family on the adopted child –, it differs from full adoption on one essential point: the adopted child does not lose his or her family of origin. Article 358 of the Civil Code provides as follows :",
"“ The adopted child shall remain in his or her family of origin and keep all his or her rights within that family, including hereditary rights. ”",
"57. Like full adoption, simple adoption has the effect of integrating the adopted child into his or her new family. However, the adopted child is not fully assimilated to a biological descendant, even though a link of kinship is created between the adoptive parent and the adopted child. The law further provides that this link extends to the adopted child's descendants (Article 361 of the Civil Code). Since the law makes no specific provision in that regard, however, it must be acknowledged that the adoption does not create a link of kinship between, on the one hand, the adopted child and the ascendants of the adoptive parent and, on the other, the adopted child's collaterals.",
"58. As regards parental authority, Article 360 of the Civil Code sets forth the following provisions :",
"“ The adoptive parent alone has, with respect to the adopted child, all the rights of parental authority, including the right to administer the adopted child's estate and to consent to the adopted child's marriage.",
"Where the adoption was by a married couple or where the adoptive parent is the spouse of the adopted child's father or mother, the rights referred to in the preceding paragraph shall be exercised in accordance with the rules applicable to the legitimate father and mother.",
"Where there is only one adoptive parent or where one of the two adoptive parents dies, the adopted child's estate shall be administered in accordance with the law and under the supervision of the court.",
"Where the adoptive parent or the survivor of the adoptive parents dies, is declared absent or loses the right to exercise parental authority, a guardianship order shall be made. ”",
"59. Article 359 of the Civil Code provides that simple adoption confers the adoptive parent's name on the adopted child. In the event of adoption by a married couple, the same rules as those applicable to full adoption apply.",
"60. Article 363 of the Civil Code establishes the principle that the adopted child and his or her descendants have the same inheritance rights in the adoptive parent's family as a legitimate child. Conversely, the following exceptions are applicable.",
"– Under Article 363, the adopted child and his or her descendants are not entitled to receive a reserved portion of the estate of the adoptive parent's ascendants.",
"– If the adopted child dies without descendants or a surviving spouse, the assets given by the adoptive parent or inherited under the adoptive parent's estate revert to the adoptive parent or to his or her descendants, provided that those assets still exist in kind at the time of the adopted child's death. If the adoptive parent has died and left no descendants, those assets belong to the adopted child's relatives (that is to say, his or her descendants or the members of his or her family of origin), to the exclusion of the adoptive parent's other heirs (Article 364). The other assets left by the adopted child go to his or her family and not to the adoptive parent's family (Article 364). Article 364 paragraph 2 provides that “if, during the lifetime of the adoptive parent and after the death of the adopted child, the children or descendants left by the adopted child die without issue, the adoptive parent [may recover the assets which he or she had given to the adopted child ], but the right to do so is personal to the adoptive parent and cannot be transferred to his or her heirs, even in the descending line.”",
"– As for the tax regime applicable to the succession, whereas children who have been fully adopted are treated in the same way as the legitimate descendants, Article III of the Law of 13 July 1959 amending the rules on adoption, the fiscal provisions of which have not been repealed, draws a distinction between different categories of persons who have been the subject of simple adoption: those in the first category listed (namely (i) adopted childs who are the children of a first marriage of the adoptive parent's spouse and those children's descendants, and also non-marital children adopted by their progenitor and those children's descendants; (ii) adopted childs who are children of persons killed by enemy action or war orphans; (iii) adopted childs who during their minority and for six years or less have received care and assistance without interruption from the adoptive parent, and their descendants; and (iv) adopted childs whose adoption was applied for before they reached the age of 16 and their descendants) are treated in the same way as legitimate descendants. Those in the second category (namely, all those not specially listed by the law) do not enjoy the same tax advantages; the law treats them as nephews and nieces, with the consequence that tax at 9% is applicable in their case.",
"61. Under section 2( 2 ) of the Law of 22 February 1968 on Luxembourg nationality, as amended, a child aged under 18 who has been the subject of simple adoption by a Luxemburger acquires Luxembourg nationality where he or she is stateless or where, following the adoption, he or she loses his or her nationality of origin by operation of the foreign law.",
"Under sections 19 and 20 of that Law, a child who was the subject of simple adoption by a Luxemburger and who at that time did not lose his or her nationality of origin may acquire the status of Luxemburger by opting to do so, provided that he or she has been habitually resident in the Grand Duchy during the year preceding the declaration of intent to exercise the option and has been habitually resident there for at least five consecutive years.",
"Section 2 of Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, provides as follows :",
"“ A child under the age of 18 who has been the subject of simple adoption by a Luxemburger ... shall acquire Luxembourg nationality; ... ”",
"62. The adopted child and his or her descendants have a duty to maintain the adoptive parent if he or she is in need, and the adoptive parent has a duty to maintain the adopted child and his or her descendants. If the adopted child dies without leaving descendants, his or her estate has an obligation to maintain an adoptive parent who is in need at the time of the adopted child's death (Article 362 of the Civil Code ).",
"63. Unlike the position in the case of full adoption, there is no need to draw up a new document which does not state the adopted child's original filiation. The adopted child keeps his or her original birth certificate, but it – and, where appropriate, his or her marriage certificate and the documents relating to the civil status of his or her legitimate descendants born before the adoption – will bear a note in the margin indicating the adoption.",
"c) Conflict of laws",
"64. Article 370 of the Luxembourg Civil Code provides the following :",
"“ Adoption is open to Luxemburgers and to foreigners.",
"The conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent or parents.",
"In the case of adoption by a married couple who are of different nationalities or are stateless persons, the applicable law is that of the place of joint habitual residence at the time of the application to adopt. The same law is applicable where one of the spouses is a stateless person.",
"The conditions that must be satisfied in order to be adopted are governed by the national law of the adopted child, save where the adoption confers the nationality of the adoptive parent on the adopted child, in which case the conditions are governed by the national law of the adoptive parent.",
"The effects of the adoption are governed by the national law of the adoptive parent or parents. Where the adoption is by a married couple who are of different nationalities or are stateless persons, or where one spouse is a stateless person, the applicable law is that of the place where both spouses were habitually resident at the time when the adoption took effect.",
"In the event of conflict between the rules on competence laid down by the national law of the adoptive parent and that of the adopted child, the adoption is validly concluded according to the procedures prescribed by the law of the country in which the adoption took place and before the authorities competent under that law. ”",
"d) Case-law on the recognition of an adoption pronounced abroad",
"65. In a recent case a married couple had obtained from the Attorney General's Department a certificate attesting that they satisfied all the statutory conditions to undertake a full adoption in Peru. The husband died during the proceedings and the widow obtained from the Attorney General's representative a certificate of eligibility to adopt on her own behalf, so that the Peruvian authorities were inclined to entrust the child to her. The Luxembourg District Court declared the widow's application to adopt inadmissible, on the ground, inter alia, that the document attesting to her eligibility to adopt had not been drawn up by the competent authority of the receiving State. However, in a judgment of 28 June 2006, the First Division of the Court of Appeal, sitting as a civil court, decided as follows :",
"“ ... the appellant produced the documents relating to the adoption pronounced in Peru ..., namely the adoption decision ... and also the certificate of conformity of the adoption with the Hague Convention referred to in Article 23(1) of [the Hague Convention].",
"It follows from that certificate of conformity, issued on 15 February 2005, that the Peruvian authorities were mistaken as to the identity of the competent authority of the receiving State ..., which is the district court of the place of residence of the future parent(s) and not the Attorney General's representative attached to that court, ... as to the nature of the document issued on 4 January 2005 by the Attorney General's representative, which was to be understood as a certificate of eligibility to adopt ... and not as a document expressing the agreement of the central authority of the receiving State that the adoption procedure could continue ...",
"However, according to [the Hague Convention], the certificate referred to in Article 23 guarantees the international effectiveness of the adoption. It is the irrebuttable proof of the lawfulness of the adoption decision, recognition of which in the Contracting States can be refused only if the adoption is manifestly contrary to its policy in the light of the best interests of the child ... Contrary to the general rule, whereby foreign decisions relating to the status and capacity of persons, which are not required to be enforced, are subject to an ex post facto control ascertaining the competence of the foreign authority and the correctness of the procedure followed, and also the competence of the law applied to the merits in accordance with the rules on the conflict of laws of the receiving country and, last, public policy, the convention system of recognition by operation of law ascertains exclusively the conformity of the adoption with public policy within the meaning of the private international law of the receiving State ...",
"In order for an adoption to be manifestly contrary to public policy within the meaning of the private international law of the requested State, it must constitute a flagrant breach of the fundamental values and principles of that State. Furthermore, even if it is established, that breach should still be tempered by consideration of the best interests of the child. Recognition cannot be refused on the ground that the certificate drawn up by the authorities of the country of origin disregards a breach, even a very serious breach, of the provisions of the Convention. ...",
"The mistakes made by the Peruvian authorities as to the Luxembourg authorities .. and as to the scope of the certificate of eligibility to adopt issued ... by the Attorney General's representative constitute a serious breach of the provisions of the Convention, but have no bearing on the fundamental principles which govern adoption in Luxembourg law. The fact that the Peruvian decision has the effects of a Luxembourg full adoption, notably by severing the child's pre-existing filiation and by its irrevocable nature, is not prejudicial to Luxembourg's international public policy.",
"Under the terms of Article 370, paragraph 5, of the Civil Code, the effects of the adoption are governed by the national law of the adoptive parent or parents. Article 26 of the [Hague Convention] varies that provision by providing that the recognition of an adoption includes not only recognition of the filiation between the child and his or her adoptive parents and parental responsibility for the child, but also the termination of the pre-existing filiation between the child and his or her mother and father, if, as in the present case, the adoption has that effect in the State where it was made. That particular effect of adoption cannot be called into question in the requested State. In addition, Article 26(2) requires that any State in which a full adoption produces its effects is to confer on the child rights equivalent to those resulting from the provisions of its own law on full adoption, irrespective of the law applicable in that State to the effects of the adoption ... That may have the effect of requiring the receiving State to recognise the termination of the ties between the child and his or her family of origin, even if such an effect would not be produced if the adoption had taken place in that State. The aim was to give the child the most favourable status ...",
"As it must be recognised by operation of law, the Peruvian adoption decision produces binding effects. ... ”",
"3. Elements of comparative law",
"a) The capacity of unmarried persons to adopt under the laws of the member States",
"66. Among the forty- six member States of the Council of Europe, none prohibits adoption by unmarried persons outright.",
"67. Ireland and Italy accept adoption by unmarried persons in very exceptional circumstances. Iceland and Lithuania permit unmarried persons to adopt a child in “exceptional circumstances”.",
"68. A second group of countries permit adoption by unmarried persons, but only if certain conditions are met. Thus, in Armenia, only unmarried women may adopt; in Malta, an unmarried man cannot adopt a female child.",
"69. In a third group of countries, including Luxembourg, adoption by unmarried persons is permitted generally, but their capacity to adopt is limited to an adoption which does not entail the termination of the family ties with the family of origin. Thus, in Georgia, Lithuania and Russia, adoption by an unmarried person does not terminate the relationship with the original parent of the opposite sex to that of the adoptive parent.",
"70. In the other European countries there are no restrictions on adoption by unmarried persons.",
"b) The effects of recognition of an adoption judgment delivered abroad in the laws of the member States",
"71. The member States do not confer the same effects on an adoption judgment delivered abroad. While some States accept that the judgment delivered abroad produces the same effects in the internal legal order as it would produce in the State in which it was delivered, other States will authorise the parties to make application for the effects to be “adapted” to domestic law and, last, a third group of States will accept the production of effects only according to their own domestic law.",
"72. A panorama of comparative law makes it possible to group the member States in two distinct categories :",
"i. States which would refuse even to recognise the foreign judgment in circumstances such as those of the present case",
"73. First, in Ireland and Italy the refusal would be based on the prohibition of full adoption by single persons.",
"74. Second, in certain Nordic countries the refusal would be based on a prohibition on principle of adoption carried out according to the procedure followed in the present case by the first applicant. Where a Danish, Finnish, Icelandic or Swedish citizen wishes to adopt a child abroad, he or she must first seek authorisation from the national authorities of his or her own country before being able to contact the authorities of the State in which he or she wishes to adopt a child. Where that prior authorisation is lacking, the domestic laws of the Nordic countries uniformly provide that the judgment delivered abroad will not be recognised.",
"ii. States which would agree to recognition of the foreign judgment in circumstances such as those of the present case",
"75. In some States the foreign judgment would produce the effects determined by the domestic law of the State in which it was delivered (that is the case in Switzerland and Estonia ).",
"76. Next, in other States, the effects of the foreign judgment could be adapted to national law (that is the case in the Netherlands ).",
"77. Last, in the majority of States the foreign judgment would produce only the effects determined by the national laws of the countries in which it would be enforced. Thus, irrespective of the effects which a judgment may produce in the country in which it was delivered, in the domestic law of the member States it will produce only the effects authorised by national law. The national court will therefore have to adapt the foreign adoption to one of the modes of adoption recognised by domestic law. The foreign adoption will therefore produce the same effects as an adoption under domestic law. That is so, in particular, in Germany, Belgium, Bulgaria, Croatia, Spain, France, Malta, Portugal and Romania.",
"B. Elements relating to the proceedings before the Luxembourg courts",
"1. Guiding principles of the proceedings before the tribunals of fact",
"78. Among the guiding principles of the proceedings, Article 62 of the new Code of Civil Procedure, which entered into force on 16 September 1998, provides as follows :",
"“ The court may invite the parties to provide any legal explanations which it may deem necessary for the outcome of the case. ”",
"2. Direct applicability of the Convention in domestic law",
"79. The rights guaranteed by the Convention and the Protocols thereto may be invoked directly before the Luxembourg courts. Thus, the Court of Cassation has ruled as follows (Cass. 17.1.1985, no. 2/85) :",
"“ ... the rules laid down in Articles 8 and 14 of the Convention, read together, not only create obligations on the part of the Contracting States but also produce direct effects in the internal legal order for individuals and confer on litigants individual rights which the national courts must safeguard. ”"
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Law and practice relating to adoption",
"1. International texts",
"a) Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in its Resolution 44/25 of 20 November 1989",
"41. This Convention, which entered into force in Luxembourg and Peru before the facts, provides the following in its relevant Articles.",
"Article 3",
"“ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. ”",
"Article 21",
"“ States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall :",
"( a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"( b) Recognise that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;",
"( c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;",
"( d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;",
"( e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. ”",
"b) Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe",
"42. The relevant extracts of Recommendation 1443 (2000), entitled “International adoption: respecting children's rights”, read as follows :",
"“ The Assembly ... fiercely opposes the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries. It roundly condemns all crimes committed in order to facilitate adoption, as well as the commercial tendencies and practices that include the use of psychological or financial pressure on vulnerable families, the arranging of adoptions directly with families, the conceiving of children for adoption, the falsification of paternity documents and adoption via the Internet.",
"It wishes to alert European public opinion to the fact that, sadly, international adoption can lead to the disregard of children's rights and that it does not necessarily serve their best interests. In many cases, receiving countries perpetuate misleading notions about children's circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country. The present tendencies of international adoption go against the UN Convention on the Rights of the Child, which stipulates that if a child is deprived of his or her family the alternative solutions considered must pay due regard to the desirability of continuity in the child's upbringing and to his or her ethnic, religious, cultural and linguistic background. ... ”",
"2. National legislation and case-law",
"a) Full adoption",
"43. The principles and effects of full adoption may be summarised as follows (see G. Ravarani, “ La filiation ”, Feuille de liaison de la conférence Saint-Yves no. 75, March 1990).",
"THE LAW",
"I. THE ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"80. The applicants complained that they had not received a fair hearing, in so far as the national courts had failed to respond to their plea relating to Article 8 of the Convention. They relied in that regard on Article 6 of the Convention, which provides :",
"“ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ... ”",
"A. The parties'arguments",
"1. The applicants",
"81. The applicants took issue with the courts for having attempted to ignore their argument based on Article 8 of the Convention by failing to respond to it.",
"82. They asserted that they had consistently claimed before the national courts that the fact that the enforcement of the Peruvian judgment had been made subject to the condition that the mother should marry constituted an interference with their private life which was incompatible with Article 8 § 2 of the Convention.",
"83. The applicants took the view that there was no rule in Luxembourg positive law that defined the criteria according to which a plea had to be submitted and maintained that if the tribunals of fact had considered that their plea was unclear they ought to have requested the applicants to provide further particulars, in accordance with Article 62 of the new Code of Civil Procedure.",
"84. Last, they submitted that for a century the Luxembourg case-law had accepted that international law resulting from a treaty which had been signed and ratified, such as the European Convention on Human Rights, took precedence over the rules of national law; yet in the present case the Court of Cassation had considered that the tribunals of fact were not required to examine the compatibility of their ruling with Article 8 § 2 of the Convention. Thus, relying in particular on Dulaurans v. France ( no. 34553/97, §§ 33 and 34, 21 March 2000), the applicants took issue with the tribunals of fact for having failed to examine their plea properly and with the Court of Cassation for having endorsed that ruling, employing reasoning containing a manifest contradiction.",
"85. The applicants concluded that the proceedings at issue did not satisfy the standards of quality required by Article 6 of the Convention.",
"2. The Government",
"86. The Government were of the view that the plea at issue which the applicants had submitted to the tribunals of fact was neither clear nor precise.",
"87. The Government further submitted that it was not the Court of Cassation's place to undertake an investigation in order to clarify that plea and thus to make up for the applicants'shortcomings.",
"88. Last, the Government observed that the applicants had relied in their submissions on arguments based on international public policy; in the Government's submission, from the time when the tribunals of fact had decided that Luxembourg law had not been observed by the Peruvian judge in the context of the Luxembourg rules on the conflict of laws, any arguments centred on international public policy became devoid of purpose. The Government reiterated that “while Article 6 § 1 obliges courts to give reasons for their decisions, that obligation cannot be understood as requiring a detailed answer to every argument” ( Fourchon v. France, no. 60145/00, § 22, 28 June 2005), and submitted that in the present case it had been unnecessary to give specific reasons for the decision reached regarding that argument. In addition to that conclusion of pure logic, according to the Government, it was also the case that the Court was not required to adjudicate on errors of fact or of law made by the domestic courts.",
"B. The Court's assessment",
"89. The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to the trial to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33), this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant ( see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Albina v. Romania, no. 57808/00, § 30, 28 April 2005 ).",
"90. The Court reaffirms, moreover, that while Article 6 § 1 obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument put forward by the parties. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, judgment of 9 September 1994, Series A no. 303 ‑ A, § 29, and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 55).",
"91. In the present case the applicants raised before the Court of Appeal, in a part entitled “ Public policy implications ”, a ground of appeal challenging the compatibility of the judgment at first instance with Article 8 of the Convention. They took issue with the first-instance court for having given Luxembourg law precedence over the international conventions in refusing to order enforcement of the Peruvian adoption decision. In its judgment of 6 July 2000 the Court of Appeal failed to respond, even in substance, to that ground of appeal.",
"92. In so far as the Government explained that the applicants'argument lacked clarity and precision, the Court is compelled to note at the outset that the Court of Appeal failed to avail itself of the possibility – provided by Article 62 of the new Code of Civil Procedure – to invite the applicants to provide further particulars of their ground of appeal. Incidentally, the Court considers that that plea, set out in writing in the document initiating the appeal, was formulated in sufficiently clear and precise terms. The applicants, relying on Article 8 of the Convention, had stated that in their view the judgment at first instance penalised the minor child and that public policy specifically required that the Peruvian adoption decision be enforced. The applicants had also cited a previous decision which, admittedly in a different context, had held that an interference with the right for the father and mother to maintain a relationship with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention.",
"93. In its judgment of 14 June 2001 the Court of Cassation upheld the solution reached by the tribunals of fact. It decided, first, that the Court of Appeal was no longer required to respond to the ground of appeal put forward by the applicants in the document initiating the appeal under the heading “ Public policy implications ”, as that question had become devoid of purpose by the very effect of their decision not to apply the foreign law and, second, that the argument relating to Article 8 of the Convention set out in the document initiating the appeal, “owing to its doubtful, vague and imprecise nature, did not constitute a ground of appeal requiring a response ”.",
"94. The Court must ascertain whether, in this case, the solution adopted by the national authorities could reasonably be justified in the light of Article 6 of the Convention.",
"95. The Court of Appeal had decided that the first-instance court had been correct to dismiss the application for enforcement of the foreign judgment which had pronounced a full adoption by an unmarried Luxembourg national, on the ground that the Peruvian decision was inconsistent with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent. The Court of Appeal had concluded that it was unnecessary to examine the other conditions of enforcement, including the conditions of conformity to international public policy.",
"96. The Court must bear in mind that, even though the courts cannot be required to state the reasons for rejecting each argument of a party ( see Ruiz Torija, cited above, § 29), they are nonetheless not relieved of the obligation to undertake a proper examination of and respond to the main pleas put forward by that party ( see, mutatis mutandis, Donadze v. Georgia, no. 74644/01, § 35, 7 March 2006). Where, in addition, those pleas deal with the “rights and freedoms” guaranteed by the Convention and the Protocols thereto, the national courts are required to examine them with particular rigour and care.",
"97. In the present case, the Court is of the opinion that the question of the incompatibility of the decision at first instance with Article 8 of the Convention – in particular from the aspect of its conformity to international public policy – was among the main pleas put forward by the applicants and thus required a specific and explicit response. The Court of Appeal failed to respond to the ground of appeal alleging that public policy specifically required, on the basis of Article 8 of the Convention, that the Peruvian adoption decision be enforced. The Court of Cassation, moreover, upheld that decision reached by the tribunals of fact, in spite of having previously held that the Convention had direct effects in the Luxembourg legal order (paragraph 79 above ).",
"98. In the light of the foregoing considerations, the Court considers that the applicants were not given an effective hearing by the domestic courts, which failed to guarantee their right to a fair hearing, within the meaning of Article 6 § of the Convention. Accordingly, there has been a violation of that provision.",
"II. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ON ITS OWN",
"99. The applicants alleged that the Luxembourg authorities'refusal to grant enforcement of the judgment of the Peruvian court pronouncing the full adoption of the child infringed their right to family life. They relied on Article 8 of the Convention, which provides as follows :",
"“ 1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"A. The parties'arguments",
"1. The applicants",
"100. The applicants took issue with the Luxembourg authorities for not recognising the family tie which they had validly created by the full adoption judgment pronounced in Peru.",
"101. They maintained, above all, that the following various elements must be observed.",
"102. Before the first applicant, a number of unmarried women had been able to adopt children in Peru without difficulty. During the 1970s and up to the early 1990s it had been possible to go to the registration officer with a translation of the Peruvian full adoption judgment and have the judgment entered in the register without applying for enforcement of it. The decisions which had concluded a full adoption in Peru were thus given recognition by operation of law by the Luxembourg registration officers. It was against that background that the first applicant, acting in good faith, had taken steps to adopt in Peru.",
"103. The second applicant, whose biological mother had died, had been placed in an orphanage because of the ill-treatment she had received in her family of origin.",
"104. The first applicant – with a certificate issued by the Luxembourg Attorney General's representative attesting to her eligibility to adopt – ensured that she had scrupulously carried out all the steps in the procedure provided for by the Peruvian legislation to adopt the child, then aged three. Thus, in particular, she had spent several weeks in the locality of the court competent to pronounce the adoption. The Peruvian court had pronounced full adoption, after establishing that all the legal conditions were satisfied.",
"105. It had not therefore been the first applicant's intention to fraudulently circumvent the provisions of the law or to launch a crusade in favour of adoption by unmarried persons.",
"106. In 1994 the practice of entering Peruvian full adoption judgments in the Luxembourg civil status registers had been abruptly abolished. The applicants, sadly, had no longer been able to take advantage of that practice; their case had been the first to be subject to review by the Luxembourg judicial authorities.",
"107. The applicants were at pains to point out that the Court of Appeal, in a differently composed division from that which had sat in their case, had recently taken a different approach with respect to the recognition of a full adoption pronounced abroad. In that other case, a married couple had obtained a certificate attesting that they satisfied all the statutory conditions to carry out a full adoption in Peru. The husband had died during the course of the proceedings and the Peruvian authorities had agreed to entrust the child to the wife alone. Although the Luxembourg District Court had declared the widow's application to adopt inadmissible, the Court of Appeal had decided that as the Peruvian adoption judgment had to be recognised by operation of law, it produced binding effects (paragraph 65 above ).",
"108. As to the merits, the applicants maintained that the refusal to enforce the Peruvian judgment pronouncing full adoption constituted an “interference” with their right to respect for their family life. Although, on account of the full adoption validly effected in Peru, the ties between the child and her family of origin had been severed, with the consequence that she no longer had a biological family, the tie formed between the two applicants as a result of that foreign adoption was denied by the Luxembourg legal order. Failing enforcement of the Peruvian decision the child would continue, so far as the Luxembourg authorities were concerned, to bear her Peruvian name and was regarded, under the tax laws, as being the responsibility of the first applicant without being fully recognised as her daughter. A residence permit must therefore be applied for from the Ministry of Justice at regular intervals, and could one day be refused. While it was true that in the meantime a simple adoption judgment had been delivered in favour of the applicants, those problems had nonetheless not been resolved.",
"109. The applicants acknowledged that the interference could be considered to be “in accordance with the law” in view of the interpretation of the domestic law as presented by the national courts.",
"110. On the other hand, they disputed the “necessity” of the interference.",
"Contrary to the Government's contention, the interference had not been necessary for the purpose of determining whether a full adoption, effected contrary to the Luxembourg law by an unmarried person, was prohibited; in the applicants'submission, the impugned interference with their family life consisted precisely in the denial of a family tie legitimately acquired abroad. The refusal to recognise the full adoption made the child a victim, although the child could not be penalised for the acts carried out by her adoptive mother. By way of example, the applicants pointed out that the minor child must be issued with residence permits on a regular basis and could not be entered in her mother's passport. Furthermore, if, when she had reached the age of 16, the minor child should wish to pursue an occupational apprenticeship, she would not benefit from the Community preference and would thus not obtain a work permit unless it were proved that an equivalent candidate could not be found on the employment market in the European Union. The applicants concluded that the child was in a legal vacuum, since she no longer had any ties with her family of origin and the refusal to order enforcement of the full adoption prevented the creation of a substitute family tie with her adoptive mother. The applicants emphasised that this problem had not been resolved by the simple adoption recently granted: the sole purpose of simple adoption was to create a supplementary family tie which did not include the genuine, unrestricted integration of the adopted child into the adoptive family. While those consequences were not harmful for a child whose ties with the family of origin persisted, the effects were harmful in the present case, where the child had lost the tie with her family of origin but that tie could not be replaced by a new tie with her adoptive mother.",
"111. The applicants concluded that the fact that the Luxembourg authorities refused to recognise an adoption legitimately concluded in another State Party to an international convention without being able to invoke what were indeed the best interests of the child constituted an interference with their family life which was not justified on any of the grounds set forth in Article 8 § 2.",
"112. The applicants submitted that the Grand Duchy of Luxembourg had a “positive obligation” to recognise the existence of an adoptive family tie resulting from a court judgment which had become final and which had been delivered in a country that shared the system of values of the majority of member States of the Council of Europe, in normal and legitimate circumstances and in conformity with the law of that country. Thus, a civil- status situation created legitimately in another State should be recognised by operation of law. The applicants, finding support in that regard in the ruling of an administrative court of first instance (paragraph 38 above) and in that of a division of the Court of Appeal (paragraph 107 above), were of the opinion that Luxembourg's ratification of the Hague Convention had placed it under an obligation to recognise the adoption pronounced in Peru. The only permitted restriction of that positive obligation to recognise the obligation validly concluded abroad was that of the right of the child.",
"2. The Government",
"113. The Government did not dispute that family life was at issue in the present case, even though the family in question was a limited family, consisting of an unmarried mother and an adopted child. In so far as the question of the recognition of the Peruvian adoption by the Luxembourg courts had arisen when the applicants were already living together, the Government considered that the concept of “family” was established.",
"114. On the other hand, the Government denied that there had been any “interference” by the public authorities with the effective exercise of the applicants'right to a family life. The Luxembourg authorities had not in any way attempted to prevent or prohibit the applicants from living together. In that regard, the Government submitted that the applicants alleged not a direct interference with the actual exercise of their family life, but administrative obstacles affecting the child whose full adoption had not been recognised; the Government emphasised, moreover, that the bill on the reform of the law on nationality provided for absolute equality between children, whether adopted or not, with respect to access to nationality. In the Government's submission, the interference by the legislature consisted in the present case in the fact that it required that a foreign judgment effecting adoption be recognised according to the procedures of Luxembourg private international law. The fact of requiring enforcement of a judgment was recognised in all States as a clear and necessary prerogative, for the purpose of ascertaining that the judgment was compatible with the fundamental rules governing the organisation of society and of the State.",
"115. On the assumption that there had been an “interference”, the Government maintained that the interference was “necessary” in order to protect Luxembourg international public policy, in that it made it possible to determine whether a rule of Luxembourg law – the rule prohibiting full adoption, contrary to Luxembourg law, abroad, by an unmarried person – had or had not been observed. In that regard, the Government emphasised the margin of appreciation left to States to define what type of family – single - parent family or two - parent family – afforded the greater protection to the child. Thus, in the present case, the interference was proportionate to the aim pursued, namely, the protection of the adopted child. The legislature had placed limits on full adoption so that such adoption, which entailed a definitive break with the adopted child's family of origin and the adopted child's full and entire entry into the new family, did not adversely affect the adopted child, or, moreover, any children of the adoptive family. The Government concluded that an interference, if it must be described as such, by the Luxembourg legislature with the applicants'family life was lawful in a democratic society in order to prevent an adoption effected in any circumstances whatsoever – and possibly in circumvention of Luxembourg law – from adversely affecting the child and the parent. In that regard, the Government emphasised that the very essence of a procedure for recognition of a foreign adoption by the Luxembourg courts was to ascertain that the child's ties with his or her family of origin had been severed without the child sustaining irremediably harmful emotional or economic consequences.",
"116. As to whether or not the State bore a “positive obligation”, the Government maintained that, in so far as no family life had pre-existed the application to adopt the child, which had been made in a manner contrary to Luxembourg public policy, the State was under no positive obligation to protect the creation of a family tie before that tie could even be recognised. In the Government's submission, Article 8 could not afford the possibility of circumventing the legislation of a country by imposing de facto the protection of family life before the State in question had been able to pronounce de jure on the recognition of a family tie in conformity with its national legislation. In their observations of 29 December 2004, the Government further explained that the question was whether effective “respect” for the applicants'family life obliged Luxembourg to enhance the status of the adoptive parent and the adopted child. Observing that the Court had consistently held that Article 8 implied the right of a parent to measures capable of reuniting him or her with his or her child, the Government asserted that in the present case no problem of reunification arose, since the emotional ties established by the fact that the applicants lived together had not been challenged. The Government added that the Luxembourg legislature could not be criticised for having made the adopted child's situation uncomfortable, as the procedure for recognition of a foreign judgment was intended to enable the State to ascertain that Luxembourg's public international policy was respected. The Government referred to the Court's case-law to the effect that the Convention did not guarantee a right to adopt as such and went on to list the positive obligations defined by the Court in Marckx v. Belgium ( judgment of 13 June 1979, Series A no. 31), Johnston and others v. Ireland ( judgment of 18 December 1986, Series A no. 112) and Eriksson v. Sweden ( judgment of 22 June 1989, Series A no. 156). The Government submitted that it could not be inferred from that case-law that Luxembourg was under any obligation, in relation to adoption, to amend its legislation in order to allow recognition of a foreign judgment which had approved the full adoption of a child by an unmarried mother, when in Luxembourg simple adoption was the only form of adoption available to an unmarried person.",
"B. The Court's assessment",
"1. Applicability of Article 8 of the Convention",
"117. The Court reiterates that “[b]y guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family” ( see Marckx, cited above, § 31, and Johnson v. the United Kingdom, judgment of 24 October, Reports 1997-VII, § 62). In the present case, the applicant has acted as the minor child's mother in every respect since 1996, so that “family ties” exist “ de facto ” between them (see, mutatis mutandis, X, Y and Z v. the United Kingdom, judgment of 22 April 1997, Reports 1997-II, vol. 35, § 37). The Court further observes that the Government do not dispute that a family tie has been established between the two applicants. It follows that Article 8 is applicable.",
"2. Compliance with Article 8 of the Convention",
"118. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are, in addition, positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see Pini and others v. Romania, nos 78028/01 and 7803 0/01, § 149, ECHR 2004 ‑ V (extracts)).",
"119. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and establish legal safeguards that render possible the child's integration in his family (see, mutatis mutandis, Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, § 32 ).",
"120. The Court considers that the positive obligations that Article 8 lays on the Contracting States in this matter must be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 (see, mutatis mutandis, Maire v. Portugal, no. 48206/99, § 72, ECHR 2003 ‑ VII).",
"121. The Court reiterates, moreover, that although “the right to adopt was not included as such among the rights guaranteed by the Convention” ( see Fretté v. France, no. 36515/97, § 29, ECHR 2002 ‑ I), “ the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention ” ( see Pini and Others, cited above, § 140, and X. v. France, no. 9993/82, Commission decision of 5 October 1982, Decisions and Reports (DR) 31, p. 241).",
"122. The Court observes at the outset that the present case must be distinguished from the Fretté case. In this case the first applicant did not have an application for authorisation to adopt rejected but was refused enforcement of a Peruvian judgment which, following a rigorous procedure, had pronounced a full adoption and which, moreover, had been declared enforceable in Peru.",
"123. Whether the question is approached from the aspect of a positive obligation of the State – to adopt reasonable and adequate measures to protect the rights of the individual under paragraph 1 of Article 8 – or from that of a negative obligation – an “interference by a public authority”, which must be justified under paragraph 2 –, the principles to be applied are quite similar. Although the Luxembourg courts'refusal to grant enforcement of the Peruvian judgment is the result of the absence in the Luxembourg legislation of provisions allowing an unmarried person to obtain full adoption of a child, the Court considers that that refusal represented in this case an “interference” with the right to respect for the applicants'family life (see, mutatis mutandis, Hussin v. Belgium, no. 70807/01, 6 May 2004).",
"124. Such an interference constitutes a breach of Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set forth in the second paragraph of that provision and is “necessary in a democratic society” in order to attain them. “Necessity” implies an interference that is based on a pressing social need and, in particular, is proportionate to the legitimate aim pursued.",
"125. In the present case, the Court finds that the interference was indisputably based on Articles 367 and 3 70 of the Luxembourg Civil Code and was therefore “in accordance with the law”.",
"126. In the Court's eyes, there is no reason to doubt that the refusal to order enforcement of the Peruvian adoption judgment was meant to protect the “health and morals” and the “rights and freedoms” of the child. It does not seem unreasonable that the Luxembourg authorities should display prudence when they determine whether the adoption was made in accordance with the Luxembourg rules on the conflict of laws. On that point, the Court reiterates the terms of Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe, entitled “International adoption: respecting children's rights” ( see paragraph 42 above ).",
"127. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court must consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I ).",
"128. The Court reiterates at the outset that in the area at issue the Contracting States enjoy a wide margin of appreciation (see, mutatis mutandis, Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299 ‑ B, § 39). In addition, the Court's task is not to substitute itself for the competent Luxembourg authorities in determining the most appropriate policy for regulating the adoption of children, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299 ‑ A, § 55, and Stjerna, cited above, § 39). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the context; in this respect one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, mutatis mutandis, Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, § 40).",
"129. The Court observes that in the sphere in question the situation is at an advanced stage of harmonisation in Europe. An examination of the legislation of the member States shows that adoption by unmarried persons is permitted without restriction in most of the forty - six countries ( see paragraph 70 above ).",
"130. In this case, a practice existed before the facts in issue, whereby Peruvian judgments pronouncing full adoption were recognised by operation of law in Luxembourg. Thus – and the Government do not dispute this –, several unmarried women had been able to have such a judgment entered in the Luxembourg civil status registers without seeking enforcement of those judgments. The first applicant therefore took steps in good faith with a view to adopting in Peru. As the applicant had complied with all the rules laid down by the Peruvian procedure, the court pronounced the full adoption of the second applicant. Once in Luxembourg, the applicants could legitimately expect that the civil status registrar would enter the Peruvian judgment on the register. However, the practice of entering judgments had been suddenly abolished and their case was submitted for review by the Luxembourg judicial authorities.",
"131. Those authorities dismissed the application for enforcement submitted by the applicants, relying on the application of the Luxembourg rules on the conflict of laws, which provide that the conditions for adoption are governed by the national law of the adoptive parent, in this case Article 367 of the Civil Code, which provides that an application for full adoption can be made only by a married couple. The courts concluded that there was no need to examine the other conditions of enforcement, which included compliance with international public policy.",
"132. The Court considers that the decision refusing enforcement fails to take account of the social reality of the situation. Accordingly, since the Luxembourg courts did not formally acknowledge the legal existence of the family ties created by the Peruvian full adoption, those ties do not produce their effects in full in Luxembourg. The applicants encounter obstacles in their daily life and the child is not afforded legal protection making it possible for her to be fully integrated into the adoptive family.",
"133. Bearing in mind that the best interests of the child are paramount in such a case (see, mutatis mutandis, Maire, cited above, § 77), the Court considers that the Luxembourg courts could not reasonably disregard the legal status validly created abroad and corresponding to a family life within the meaning of Article 8 of the Convention. However, the national authorities refused to recognise that situation, making the Luxembourg conflict rules take precedence over the social reality and the situation of the persons concerned in order to apply the limits which Luxembourg law places on full adoption.",
"134. The Government explain that the legislature set limits on full adoption so that such adoption – which entails a definitive break with the adopted child's family of origin and his or her full and entire entry into the new family – will not be harmful to the adopted child. In the circumstances of the present case, the Court does not find that argument convincing : as the second applicant had been declared abandoned and placed in an orphanage in Peru, it was precisely the interests of the child that stood against the refusal to recognise the Peruvian adoption judgment.",
"On that point, the Court notes, moreover, that a division of the Court of Appeal recently took the best interests of the child into consideration and decided, in a slightly different legal and factual context, that a Peruvian adoption judgment pronounced in favour of a Luxembourg woman should be recognised by operation of law. In the judgment in question, the Court of Appeal emphasised, inter alia, the need to give the child the most favourable status. The Court of Appeal further stated that the fact that the Peruvian decision produced the effects of a Luxembourg full adoption, in particular by severing the child's pre-existing legal parent-child relationship and by its irrevocable nature, was not prejudicial to Luxembourg's international public policy ( see paragraph 65 above).",
"135. The Court concludes that in this case the Luxembourg courts could not reasonably refuse to recognise the family ties that pre-existed de facto between the applicants and thus dispense with an actual examination of the situation. Reiterating, moreover, that the Convention is “a living instrument and must be interpreted in the light of present-day conditions” (see, among other authorities, Johnston and Others, cited above, § 53 ), the Court considers that the reasons put forward by the national authorities – namely, the strict application, in accordance with the Luxembourg rules on the conflict of laws, of Article 367 of the Civil Code, which permits adoption only by married couples – are not “sufficient” for the purposes of paragraph 2 of Article 8.",
"136. In the light of the foregoing, the Court considers that there has been a violation of Article 8 of the Convention.",
"III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8",
"137. The applicants claimed that the refusal to enforce the Peruvian adoption judgment constituted a violation of Article 14 of the Convention in conjunction with Article 8, those Articles reading as follows :",
"Article 14",
"“ The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”",
"Article 8",
"“ 1. Everyone has the right to respect for his private and family life ... ”",
"A. The parties'arguments",
"1. The applicants",
"138. The applicants maintained in the first place that the child, who had not chosen her situation, had been the subject of unjustified discrimination. Although an adoptive mother had been designated for her in all conscience and according to a well- organised procedure by the authorities of her country of origin, the adoptive tie was denied by the Luxembourg courts. The minor child thus suffered discrimination by comparison with another Peruvian child who had been adopted by a Luxembourg married couple and whose family ties had been recognised in Luxembourg, even if the couple had subsequently separated or if one of the parents had subsequently died.",
"139. The refusal to order enforcement exposed the second applicant to obstacles on a daily basis. For example, as she did not have Luxembourg nationality, she was required to obtain a visa in order to visit Switzerland, whereas Community nationals had no need of such a visa. Nor had the day-to-day problems been resolved by the fact that in the meantime she had had the advantage of a simple adoption, since the resulting legal treatment continued to operate to her disadvantage.",
"140. As for the first applicant, she asserted that she indirectly suffered, on a daily basis, the obstacles suffered by her child. Thus, she was required to carry out all the administrative procedures resulting from the fact that the child did not have Luxembourg nationality.",
"141. Next, she submitted that, as an unmarried person, she suffered discrimination by comparison with a married person who sought to adopt. Owing to a simple question of civil status, an unmarried person with the same capacity to bring up children as a married person would have only restricted opportunities to adopt; yet the fact of being married did not afford better guarantees to the adopted child. Also, the first applicant contended that distinction based on a question of civil status was not based on a relevant criterion. In her submission, the only truly relevant criterion in adoption matters should be that of the capacity of the adoptive parent to bring up children.",
"142. Last, the first applicant saw no justification for the prohibition on full adoption by unmarried persons, since a simple adoption was available to the same unmarried persons. She questioned why what the national authorities deemed to be the harmful consequences of full adoption by an unmarried person ceased to apply in the case of simple adoption.",
"2. The Government",
"143. The Government observed that Article 14 of the Convention had no independent existence and concluded that there had been no violation of that provision, since, in their view, there had been no violation of Article 8 of the Convention.",
"144. In the alternative, the Government maintained that the second applicant could not claim to have suffered discrimination, as her situation was the same as that of other Luxembourg and foreign children.",
"145. Nor, in the Government's submission, could the first applicant claim to be a victim of a violation of Article 14. There was indeed a difference in regime between simple adoption and full adoption, but that difference was not discriminatory because it was the consequence of the status of the parents – married or unmarried – in the eyes of the national legislation.",
"146. According to the Government, the refusal to recognise the foreign judgment pronouncing the full adoption of a child by an unmarried person pursued, by way of legitimate aim, that of protecting the child. The aim was to afford the child every opportunity to grow up in his or her new family in the presence of two parents capable of helping the child to realise his or her full potential.",
"147. The refusal was also proportionate to the aim pursued, since it did not constitute for the adoptive parent and the adopted child an obstacle to simple adoption. The justification for the difference between the two adoption regimes was objective and reasonable in that it was based on the idea that two parents were more capable of taking in a child – who was often foreign and had therefore been uprooted – who, by full adoption, had just become part of the new family. In that regard, the Government emphasised that “the State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect” ( Fretté, cited above, § 42) and that the Court's role was not to substitute itself for the competent domestic authorities in regulating the care of children and the rights of those children's parents, but rather to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation ( Hokkanen, cited above, § 55).",
"B. The Court's assessment",
"1. Applicability of Article 14 of the Convention",
"148. As the Court has consistently held, Article 1 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or other of the latter (see, among many other authorities, Mizzi v. Malta, no. 26111/02, § 126, ECHR 2006 ‑ ... (extracts ), and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 33 ).",
"149. In the present case the Court has declared Article 8 of the Convention applicable ( see paragraph 117 above) and has even concluded that there was a breach of that provision ( see paragraph 136 above). The facts therefore fall within the ambit of Article 8 of the Convention and Article 14 of the Convention may apply in conjunction with Article 8 (see, mutatis mutandis, Mizzi, cited above, §§ 127 and 128).",
"2. Compliance with Article 14 of the Convention",
"150. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations ( see Mazurek v. France, no. 34406/97, § 46, ECHR 2000 ‑ II).",
"151. In this case the second applicant is in a similar situation to that of any child who has been the subject in Peru of a full adoption judgment entailing the severance of the ties with his or her family of origin and whose adoptive parent has sought to have that judgment enforced under Luxembourg law. As for the first applicant, she is in a similar situation to that of any other person seeking recognition in Luxembourg of a full adoption judgment delivered in her favour in Peru.",
"152. For the purposes of Article 14 of the Convention, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, in particular, Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 24, and Mazurek, cited above, § 48 ).",
"153. The Court considers, for the reasons set out above ( see paragraph 126 above), that it cannot be excluded that the aim invoked by the Government may be considered legitimate.",
"154. It remains to be ascertained whether, so far as the means employed are concerned, the introduction of a difference in treatment between children, according to whether or not the foreign full adoption judgment is recognised in Luxembourg, appears to be proportionate and appropriate to the aim pursued.",
"155. In spite of the fact that the applicant followed all the steps required by the Peruvian procedure in good faith and that, in addition, the social worker recommended the adoption in Luxembourg ( see paragraph 14 above), the full adoption judgment delivered in Peru was not recognised by the Luxembourg authorities. The consequence of this refusal to order enforcement is that the second applicant suffers on a daily basis a difference in treatment by comparison with a child whose full adoption is recognised in Luxembourg. It is an inescapable finding in this case that the child's ties with her family of origin have been severed but that no full and entire substitute tie exists with her adoptive mother. The second applicant is therefore in a legal vacuum which has not been remedied by the fact that simple adoption has been granted in the meantime ( see paragraph 40 above ).",
"156. It follows in particular that, not having acquired Luxembourg nationality, the second applicant does not have the advantage of, for example, Community preference; if she wished to serve an occupational apprenticeship she would not obtain a work permit unless it were shown that an equivalent candidate could not be found on the European employment market. Next, and above all, for more than ten years the minor child has had to be regularly given leave to remain in Luxembourg and has had to obtain a visa in order to visit certain countries, in particular Switzerland. As for the first applicant, she indirectly suffers, on a daily basis, the obstacles experienced by her child, since she must, inter alia, carry out all the administrative procedures resulting from the fact that the former has not obtained Luxembourg nationality.",
"157. The Court does not find any ground in the present case to justify such discrimination. That conclusion is particularly valid in that, before the facts in issue, other Peruvian children adopted by unmarried mothers obtained a full adoption judgment by operation of law in Luxembourg. In addition, the Court must reiterate that a division of the Court of Appeal recently decided, in a slightly different legal and factual context, that a Peruvian adoption decision pronounced in favour of the Luxembourg woman in that case must be recognised by operation of law ( see paragraph 65 above).",
"158. In any event, the Court considers that the second applicant cannot be blamed for circumstances for which she is not responsible (see, mutatis mutandis, Mazurek, cited above, § 54). It must be noted that, because of her status as a child adopted by a Luxembourg unmarried mother who has not obtained recognition in Luxembourg of the family ties created by the foreign judgment, she is penalised in her daily existence ( see paragraph 156 above).",
"159. The foregoing factors are sufficient for the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim pursued.",
"160. Accordingly, there has been a violation of Article 14 of the Convention in conjunction with Article 8.",
"..."
] |
58 | E.B. v. France | 22 January 2008 (Grand Chamber) | The applicant alleged that at every stage of her application for authorisation to adopt she had suffered discriminatory treatment which had been based on her sexual orientation and had interfered with her right to respect for her private life. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. The domestic administrative authorities, and then the courts that heard the applicant’s appeal, had based their decision to reject her application for authorisation to adopt largely on the lack of a paternal referent in the applicant’s household, which was not a legitimate reason. Also, the influence of her homosexuality on the assessment of her application had not only been established but had also been a decisive factor. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1961 and lives in Lons -le - Saunier.",
"8. She has been a nursery school teacher since 1985 and, since 1990, has been in a stable relationship with a woman, Ms R., who is a psychologist.",
"9. On 26 February 1998 the applicant made an application to the Jura Social Services Department for authorisation to adopt a child. She wanted to investigate the possibility of international adoption, in particular in Asia, South America and Madagascar. She mentioned her sexual orientation and her relationship with her partner, Ms R.",
"10. In a report dated 11 August 1998 the socio-educational assistant and paediatric nurse noted the following points among others :",
"“ Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although concerned by her partner's application to adopt a child, does not feel committed by it.",
"Ms B. considers that she will have to play the role of mother and father, and her partner does not lay claim to any right vis-à-vis the child but will be at hand if necessary.",
"...",
"Ms B. is seeking to adopt following her decision not to have a child herself.",
"She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child's happiness than to tell the child that she does not want to live with a man.",
"...",
"Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother-in-law. But she also says that the child will be able to choose a surrogate father in his or her environment ( a friend's relatives, a teacher, or a male friend ...).",
"...",
"CONCLUSION",
"“ On account of her personality and her occupation, Ms B. is a good listener, is broad-minded and cultured, and is emotionally receptive. We also appreciated her clear-sighted approach to analysing problems and her child-raising and emotional capacities.",
"However, regard being had to her current lifestyle: unmarried and cohabiting with a female partner, we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child's stable and well-adjusted development.",
"Opinion reserved regarding authorisation to adopt a child. ”",
"11. On 28 August 1998, in her report on the interviews she had had with the applicant, the psychologist examining her application recommended in the following terms that authorisation be refused :",
"“ ...",
"Ms [B.] has many personal qualities. She is enthusiastic and warm -hearted and comes across as very protective of others.",
"Her ideas about child - rearing appear very positive. Several question marks remain, however, regarding a number of factors pertaining to her background, the context in which the child will be cared for and her desire for a child.",
"Is she not seeking to avoid the “ violence ” of giving birth and genetic anxiety regarding a biological child?",
"Idealisation of a child and under-estimation of the difficulties inherent in providing one with a home : is she not fantasising about being able to fully mend a child's past?",
"How certain can we be that the child will find a stable and reliable paternal referent?",
"The possibilities of identification with a paternal role model are somewhat unclear. Let us not forget that children forge their identity with an image of both parents. Children need adults who will assume their parental function: if the parent is alone, what effects will that have on the child's development?",
"...",
"We do not wish to diminish Ms [B.]'s confidence in herself in any way, still less insinuate that she would be harmful to a child; what we are saying is that all the studies on parenthood show that a child needs both its parents.",
"Moreover, when asked whether she would have wanted to be brought up by only one of her parents, Ms B. answered no.",
"...",
"A number of grey areas remain, relating to the illusion of having a direct perception of her desire for a child: would it not be wiser to defer this request pending a more thorough analysis of the various – complex – aspects of the situation? ... ”",
"12. On 21 September 1998 a technical officer from the children's welfare service recommended that authorisation be refused, observing that the applicant had not given enough thought to the question of a paternal and male role model, and assumed that she could easily take on the role of father and mother herself, while mentioning a possible role for her father and/or brother-in-law, who lived a long way away, however, meaning that meetings with the child would be difficult. The officer also wondered about the presence of Ms R. in the applicant's life, noting that they refused to regard themselves as a couple and that Ms R. had not at any time been involved in the plan to adopt. The reasoning of the opinion ended as follows:",
"“ I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language ... ”.",
"13. On 12 October 1998 the psychologist from the children's welfare service, who was a member of the adoption board, recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality. He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple, which gave rise to an unclear or even an unspoken situation involving ambiguity and a risk that the child would have only a maternal role model. The psychologist went on to make the following comments:-",
"“ ...",
"It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child- parent that [the applicant] appears to have had to play ( vis-à-vis one of her sisters, protection of her parents), and were based on emotional difficulties. Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother?",
"Unusual attitude towards men in that men are rejected.",
"In the extreme, how can rejection of the male figure not amount to rejection of the child's own image? (A child eligible for adoption has a biological father whose symbolic existence must be preserved, but will this be within [the applicant's ] capabilities ?) ... ”",
"14. On 28 October 1998 the Adoption Board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation to adopt in the following terms:-",
"“ ... From my personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home.",
"The role of the “ adoptive mother” and the “ adoptive father” in the child's day-to-day upbringing are complementary, but different.",
"It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history.",
"I therefore think it necessary, in the interests of the child, for there to be a solid balance between an “ adoptive mother” and an “ adoptive father” where adoption is being envisaged. ... ”",
"15. On 4 November 1998 the Board's representative from the Family Council, present on behalf of the union of family associations for the département (UDAF), referring to the Convention on the Rights of the Child of 20 November 1989, recommended that authorisation be refused on the ground of the lack of a paternal referent and added:",
"“ ... It appears impossible to build a family and bring up a child without the full support of this partner [R.] for the plan. The psychologists'and welfare reports show her clear lack of interest in Ms [B.]'s plan ...",
"In the further alternative, the material conditions for providing a child with a suitable home are not met. It will be necessary to move house, solve the issue of how to divide expenses between both partners, whose plans differ at least in this respect .”",
"16. On 24 November 1998 the head of the children's welfare service also recommended that authorisation be refused, noting expressly that",
"“ Ms [B.] lives with a female partner who does not appear to be a party to the plan. The role this partner would play in the adopted child's life is not clearly defined.",
"There does not appear to be room for a male referent who would actually be present in the child's life.",
"In these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being. ”",
"17. In a letter of 26 November 1998 the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant. The following reasons, among others, were given:",
"“ ... in examining any application for authorisation to adopt I have to consider the child's interests alone and ensure that all the relevant safeguards are in place.",
"Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child.",
"Moreover, the place that your partner would occupy in the child's life is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings.",
"Accordingly, all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish. ... ”",
"18. On 20 January 1999 the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt.",
"19. The children's welfare service asked a clinical psychologist to prepare a psychological assessment. In her report of 7 March 1999, drawn up after an interview with the applicant, the psychologist concluded that “Ms B. ha [d] plenty to offer in providing a home for a child (patience-values - creativity - time ) ”, but considered that adoption was premature having regard to a number of problematic points (confusion between a non-directive and laissez -faire attitude, and ignorance of the effects of the introduction of a third person into the home set-up ).",
"20. On 17 March 1999 the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation.",
"21. On 13 May 1999 the applicant applied to the Besançon Administrative Court seeking to have the administrative decisions of 26 November 1998 and 17 March 1999 set aside. She also contested the manner in which the screening process in respect of her request for authorisation had been conducted. She pointed out that many people involved in the process had not met her, including the psychologist from the adoption board.",
"22. In a judgment of 24 February 2000 the Administrative Court set aside the decisions of 26 November 1998 and 19 March 1999, ruling as follows :",
"“ ... the president of the council for the département of the Jura based his decision both on “ the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child ” and on “the place [her] partner would occupy in the child's life”. The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt. The documents in the case file show that Ms B., who has undisputed personal qualities and an aptitude for bringing up children, and who is a nursery school teacher by profession and well integrated into her social environment, does offer sufficient guarantees – from a family, child-rearing and psychological perspective – that she would provide an adopted child with a suitable home. ... Ms B. is justified, in the circumstances of this case, in seeking to have the decisions refusing her authorisation set aside ... ”",
"23. The département of the Jura appealed. The Nancy Administrative Court of Appeal, in a judgment of 21 December 2000, set aside the lower court's judgment. It found, first, that “ B. maintain [ ed ] that she ha[d] not been sent a personality test, but [ did ] not allege that she [had] asked for the document and that her request [had been] refused” and that the 4th paragraph of Article 63 of the Family and Social Welfare Code “[did] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents. Hence, the fact that a psychologist [had drawn] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [did] not invalidate the screening process carried out in respect of Ms B .'s application for authorisation to adopt ...”.",
"24. The court went on to find that",
"“ ... the reasons for the decisions of 26 November 1998 and 17 March 1999, which were taken following an application for reconsideration of the decision of the president of the council for the département of the Jura rejecting the application for authorisation to adopt submitted by Ms B., are the absence of “ identificational markers ” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child. It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms B.'s application, that having regard to the latter's lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child ...;",
"... contrary to Ms B.'s contentions, the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle. Accordingly, and in any event, the applicant is not justified in alleging a breach ... of the requirements of Articles 8 and 14 of the Convention... ”.",
"25. The applicant appealed on points of law. On 5 June 2002 the Conseil d'Etat dismissed her appeal in a judgment giving the following reasons:",
"“ ... Regarding the grounds for refusing Ms B. authorisation:",
"...",
"Firstly, the fact that a request for authorisation to adopt a child is submitted by a single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the administrative authority from ascertaining, in terms of child-rearing and psychological factors that foster the development of the child's personality, whether the prospective adoptive parent can offer – in her circle of family and friends – a paternal “ role model or referent ” where the application is submitted by a woman ...; nor, where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above-mentioned provisions, does this fact prevent the authority from determining – even if the relationship in question is not a legally binding one – whether the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. Accordingly, the Administrative Court of Appeal did not err in law in considering that the two grounds on which the application by Ms [B.] for authorisation as a single person was refused – namely, the “ absence of identificational markers due to the lack of a paternal role model or referent ” and “the ambivalence of the commitment of each member of the household to the adoptive child” – were capable of justifying, under the above-mentioned provisions of the decree of 1 September 1998, the refusal to grant authorisation;",
"Secondly, with regard to Ms [B.]'s assertion that, in referring to her “ lifestyle ” to justify the refusal to grant her authorisation to adopt, the Administrative Court of Appeal had implicitly referred to her sexual orientation, it can be seen from the documents submitted to the tribunals of fact that Ms [B.] was, at the time of the examination of her application, in a stable homosexual relationship. As that relationship had to be taken into consideration in the needs and interests of an adopted child, the court neither based its decision on a position of principle in view of the applicant's sexual orientation nor breached the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the Criminal Code prohibiting sexual discrimination;",
"Thirdly, in considering that Ms [B.], “ having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child ”, the Administrative Court of Appeal, which did not disregard the elements favourable to the applicant in the file submitted to it, did not distort the contents of the file;",
"It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside the above-mentioned judgment, which contains adequate reasons ... ”.",
"i. who are married to each other, or",
"ii. where such an institution exists, have entered into a registered partnership together;",
"b. by one person.",
"2. States are free to extend the scope of this convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this convention to different-sex couples and same-sex couples who are living together in a stable relationship. ”",
"2. International Convention on the Rights of the Child",
"30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and which came into force on 2 September 1990 read as follows:",
"Article 3",
"“ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. ”",
"Article 4",
"“ States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. ”",
"Article 5",
"“ States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ”",
"Article 20",
"“ 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.",
"2. States Parties shall in accordance with their national laws ensure alternative care for such a child.",
"3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.”",
"Article 21",
"“ States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;",
"(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;",
"(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;",
"(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. ... ”",
"3. Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption",
"31. The relevant provisions of the Hague Convention of 29 May 1993 provide:",
"Article 5",
"“ An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State:",
"a) have determined that the prospective adoptive parents are eligible and suited to adopt;",
"b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and",
"c) have determined that the child is or will be authorized to enter and reside permanently in that State. ”",
"Article 15",
"“1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.",
"2. It shall transmit the report to the Central Authority of the State of origin.”"
] | [
"II. RELEVANT LAW AND PRACTICE",
"A. Domestic law",
"1. The Civil Code",
"26. The relevant provisions at the material time read as follows:",
"Article 343",
"“Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.”",
"Article 343-1",
"“Adoption may also be applied for by any person over twenty-eight years of age. ... ”",
"2. Family and Social Welfare Code",
"27. The relevant provisions at the material time read as follows:",
"Article 63",
"“Children in State care may be adopted either by persons given custody of them by the children's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ...",
"Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a [ n ] [ adoption] board. ... ”",
"Article 100-3",
"“Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.”",
"3. Decree no. 98-771 of 1 September 1998 establishing the arrangements for appraising applications for authorisation to adopt a child in State care",
"28. The relevant provisions of the decree read as follows:",
"Article 1",
"“Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit an application to that end to the president of the council for the département in which he or she resides. ... ”",
"Article 4",
"“Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective.",
"To that end, he shall order inquiries into the applicant's circumstances ...”",
"Article 5",
"“The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ... ”",
"B. International Conventions",
"1. Draft European Convention on the Adoption of Children",
"29. The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia :",
"Article 7 – Conditions for adoption",
"“ 1. The law shall permit a child to be adopted :",
"a. by two persons of different sex",
"THE LAW",
"32. The applicant alleged that she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. She relied on Article 14 of the Convention taken in conjunction with Article 8, which provide:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"I. ADMISSIBILITY",
"A. Submissions of the parties",
"1. The applicant",
"33. The applicant stated that adoption by homosexuals fell into three quite distinct categories: first, it might be a single person seeking to adopt, in a member State where adoptions by single persons were permitted (even if only in exceptional cases), in which case any partner the individual might have acquired no parental rights as a result of the adoption (individual adoption); second, one member of a same-sex couple might seek to adopt the child of the other partner, so that both partners had parental rights vis-à-vis the child (second-parent adoption); and lastly, both members of a same-sex couple might seek to jointly adopt a child with no prior connection with either partner, so that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). The applicant specified that she had applied for individual adoption, which was the simpler legal option.",
"34. She emphasised the importance of obtaining authorisation, which, in practice, was a precondition to adopting a child in France or abroad.",
"35. The applicant did not claim a right to adopt, which – irrespective of the sexual orientation of the prospective adoptive parent – did not exist. Nevertheless, she submitted that Article 14 of the Convention, taken in conjunction with Article 8, was applicable to the present case. Firstly, the opportunity or chance of applying for authorisation to adopt fell within the scope of Article 8 both with regard to “private life”, since it concerned the creation of a new relationship with another individual, and “family life”, since it was an attempt to create a family life with the child being adopted. Secondly, a person's sexual orientation, which was an aspect of their private life, accordingly fell within the scope of Article 8.",
"2. The Government",
"36. The Government contended that the application was inadmissible, since the complaint fell outside the scope of Article 8 of the Convention and, consequently, Article 14. In any event, unlike in Fretté ( Fretté v. France, no. 36515/97, § 32, ECHR 2002-I), the refusal to grant the applicant authorisation had not been based, explicitly or implicitly, on the applicant's sexual orientation and could not therefore amount to direct or indirect discrimination based on her homosexuality.",
"37. The reason for refusing her authorisation had been dictated by the child's interests alone and had been based on two grounds : lack of a paternal referent and the ambivalence of the applicant's partner's commitment to her adoption plans.",
"38. With regard to the ground relating to the lack of a paternal referent, the Government pointed out that many professionals considered that a model of sexual difference was an important factor in a child's identity and that it was perfectly understandable that the social services of the département should take into consideration the lack of markers enabling a child to construct its identity with reference to a father figure. The Government cited decisions of the domestic courts in support of their submission that any other heterosexual applicant whose immediate circle of family and friends did not include a member of the opposite sex would have had their application refused on the same ground.",
"39. With regard to the second ground, the Government submitted at the outset that the lack of commitment on the part of the applicant's partner was an established fact. They observed that the applicant continued to deny the relevance of that fact, whereas it was legitimate to have regard to the conduct of a prospective adoptive parent's immediate circle of family and friends where there were plans to bring a child into the home. Irrespective of the lack of legal consequences for the partner, the arrival of a child would change the balance of the receiving couple and the family unit, and an adopted child's previous history made it all the more important to assess the solidity of a couple's approach to any plan to adopt. Accordingly, apart from the fact that R. would necessarily be involved in the child's day-to-day life, her lack of involvement could be seen as a source of insecurity for the child with the risk that the child would find him or herself in competition with the applicant's partner for the applicant's time and affection. In the Government's submission, that ground could not be said to be related to the applicant's sexual orientation, as had been borne out by the decisions of the domestic courts.",
"40. In the Government's view, the circumstances of the present case were therefore very different from those in Fretté ( cited above) and it should be stressed that the French administrative and judicial authorities had given paramount consideration to what lay in the best interests of the child. Those best interests were central to many international instruments binding on France. There was no right to a child or right to authorisation to adopt one. Adoption was a measure taken for the child's protection and was designed to provide him or her with a family. The sole purpose of the authorisation procedure was to identify from among the many candidates the person who could provide a child with the most suitable home in every respect. Accordingly, the desire for a child must not prevail over the child's interests.",
"B. The Court's assessment",
"41. The Court, noting that the applicant based her application on Article 14 of the Convention, taken in conjunction with Article 8, reiterates at the outset that the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt ( see Fretté, cited above, § 32). Neither party contests this. The right to respect for “ family life ” does not safeguard the mere desire to found a family; it presupposes the existence of a family ( see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father ( see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI ), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 62), or the relationship that arises from a lawful and genuine adoption ( see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V ).",
"42. Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption ( see paragraphs 30-31 above ).",
"43. The Court has, however, previously held that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings ( see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, p. 33, § 29), the right to “personal development” ( see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I ) or the right to self-determination as such ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). It encompasses elements such as names ( see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280 ‑ B, p. 28, § 24), gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 ( see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36), and the right to respect for both the decisions to have and not to have a child ( see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ ... ).",
"44. Admittedly, in the instant case the proceedings in question do not concern the adoption of a child as such, but an application for authorisation to adopt one subsequently. The case therefore raises the issue of the procedure for obtaining authorisation to adopt rather than adoption itself. However, the parties do not contest that in practice authorisation is a precondition for adopting a child.",
"45. It should also be noted that the applicant claimed to have been discriminated against on the ground of her avowed homosexuality, resulting in a violation of the provisions of Article 14 of the Convention taken in conjunction with Article 8.",
"46. The Court is not therefore called upon to rule whether the right to adopt, having regard, inter alia, to developments in the legislation in Europe and the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions ( see, in particular, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53), should or should not fall within the ambit of Article 8 of the Convention taken alone.",
"47. With regard to Article 14, which was relied on in the present case, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003 ‑ VIII ). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention ( see Abdulaziz, Cabales and Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 22; and Petrovic v. Austria, judgment of 27 March 1998, Reports 1998 ‑ II, § 22 ).",
"48. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court's case-law ( see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 9; Abdulaziz, Cabales and Balkandali, cited above, § 78; and Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ).",
"49. The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in the application of that right, take discriminatory measures within the meaning of Article 14 ( see, mutatis mutandis, Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ”, cited above ).",
"50. The applicant alleged in the present case that, in the exercise of her right under the domestic law, she had been discriminated against on the ground of her sexual orientation. The latter is a concept covered by Article 14 of the Convention ( see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 28, ECHR 1999-IX). The Court also points out that in Fretté v. France (cited above), to which the parties expressly referred, the applicant complained that the rejection of his application for authorisation to adopt had implicitly been based on his sexual orientation alone. The Chamber found that Article 14 of the Convention, taken in conjunction with Article 8, was applicable (§ 33).",
"51. Accordingly, Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.",
"52. In these circumstances the Court dismisses the preliminary objection raised by the Government. It also considers, in the light of the parties'submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"A. Submissions of the parties",
"1. The applicant",
"53. The applicant maintained that the refusal to grant her authorisation to adopt had been based on her “lifestyle”, in other words her homosexuality. In her view, this was borne out by the screening of her application and the opinion of the adoption board. She also considered that part of the judgment delivered by the Conseil d'Etat was worded in the same terms as the judgment it had rendered in the case of Fretté ( cited above), which showed that the Conseil d'Etat adopted a discriminatory approach.",
"54. With regard to the ground based on the lack of a paternal referent, she argued that while the majority of French psychoanalysts believed that a child needed a dual maternal and paternal referent, there was no empirical evidence for that belief and it had been disputed by many other psychotherapists. Moreover, in the present case the Government had not shown that there was a practice of excluding single heterosexual women who did not have a male partner.",
"55. With regard to the argument based on her partner's place in and attitude to her plan to adopt, she submitted that this was an illegal ground. Articles 343 and 343-1 of the Civil Code provided that adoption was open to married couples and single persons : partners were not concerned and therefore were not a party to the adoption procedure and did not enjoy any legal status once the child was adopted. Having regard to her right to be subject to foreseeable legal rules, the applicant contested a ground for rejection of her application that had no basis in the law itself.",
"56. The applicant went on to stress that she and her partner had had a meeting with the social worker and that subsequently the various officials involved in screening her application for authorisation had never asked to meet her partner. Either steps should have been taken to interview her partner or this ground had in reality served as a pretext for rejecting her application purely on the basis of her sexual orientation.",
"57. The applicant submitted that the difference in treatment in her regard had no objective and reasonable justification. Particularly serious reasons were required to justify a difference in treatment based on sexual orientation. There were no such reasons in this case.",
"58. With regard to the division in the scientific community ( Fretté, § 42), particularly serious reasons were required to justify a difference in treatment of homosexuals. The burden of proving the existence of any scientific reasons was on the Government and if they had failed to prove in Fretté and in the instant case that there was a consensus in the scientific community, this was because there was no known study on the subject.",
"59. The applicant disputed the existence of a “ legitimate aim ”, since children's health was not really in issue here and the Conseil d'Etat had not explained how the child's health might be endangered. She submitted that three risks were generally cited: first, the alleged risk of the child becoming homosexual, which, quite apart from the fact that there was nothing reprehensible about such an eventuality and that the majority of homosexuals had heterosexual parents, was a prejudiced notion; second, the child would be exposed to the risk of developing psychological problems : that risk had never been proved and recent studies showed that being raised in a homoparental family did not incline a child to any particular disorder; besides that, the right to adopt that existed in some democratic countries showed that there was no risk for the child. Lastly, there was no long-term risk that the child would suffer on account of homophobic prejudices towards the parents and, in any event, the prejudices of a sexual majority did not constitute sufficient justification.",
"60. She pointed out that the practice of the administrative authorities was inconsistent in France, where some départements no longer refused authorisation to single homosexual applicants. She also stated that the civil courts allowed adoption by the same-sex partner of the original parent.",
"61. In Europe there had been a steady development in the law in favour of adoption by same-sex couples since the Fretté judgment ( cited above, § 41), with some ten European States now allowing it. The applicant also referred to a European consensus in favour of making adoption available to single homosexuals in the member States of the Council of Europe which allowed adoption by single persons, other than France where decisions were made on a discretionary basis. The same was true outside Europe, where case-law developments were in favour of adoption by homosexuals in the interests of children needing a home.",
"62. Lastly, she disputed the argument that there were insufficient numbers of children eligible for adoption, to which the Court had adhered in its Fretté judgment ( cited above, § 42), arguing that the number of children eligible for adoption in the world exceeded the number of prospective adoptive parents and that making a legal possibility available should not depend on the effective possibility of exercising the right in question.",
"2. The Government",
"63. The Government pointed out that authorisation to adopt was issued at local, and not national, level by the president of the council for the département after obtaining the opinion of an adoption board at département level. In 2005, 13, 563 new applications had been submitted, of which barely 8 % had not been satisfied ( with less than 6 % being refused authorisation and about 2 % being withdrawn ). In 2006, 4, 000 visas had been granted by the relevant authorities to foreign children being adopted. The Government stated that they could not provide statistics relating to the applicants'sexual orientation, as the collecting or processing of personal data about a person's sexual life were prohibited under French law.",
"64. The Government submitted, in the alternative, that the present case did not lend itself to a review of the Court's finding in the Fretté judgment ( cited above ), since present -day conditions had not sufficiently changed to justify a departure from precedent.",
"65. With regard to national laws, there was no European consensus on the subject, with only nine out of forty-six member States of the Council of Europe moving towards adoption by same-sex couples and some countries not making adoption available to single persons or allowing it under more restrictive conditions than in France. Moreover, that observation should be qualified by the nature of those laws and the conditions that had to be met.",
"66. The conclusion reached by the Court in Fretté regarding the division in the scientific community was still valid today. The Government justified the failure to produce studies identifying problems or differences in development in children raised by homosexual couples by the fact that the number of children raised by a homosexual couple was unknown and the estimated numbers highly variable. Besides the complexity of the various situations that might be encountered, the existing studies were insufficiently thorough because they were based on insufficiently large samples, failed to take a detached approach and did not indicate the profile of the single-parent families in question. Child psychiatrists or psychoanalysts defended different theories, with a majority arguing that a dual maternal and paternal referent in the home was necessary.",
"67. There were also still wide differences in public opinion since Fretté ( cited above, § 42).",
"68. The Government confirmed that the reality was that applications to adopt outnumbered children eligible for adoption. Their international obligations, particularly Articles 5 and 15 of the Hague Convention, compelled them to select candidates on the basis of those best able to provide the child with a suitable home.",
"69. Lastly, they pointed out that none of the sixty or so countries from which French people adopted children authorised adoption by same-sex couples. International adoption might therefore remain a purely theoretical possibility for homosexuals despite the fact that their domestic law allowed it.",
"B. The Court's assessment",
"70. The Court observes that in Fretté v. France (cited above) the Chamber held that the decisions to reject the application for authorisation had pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure (§ 38). With regard to whether a difference in treatment was justified, and after observing that there was no common ground between the legal systems of the Contracting States, the Chamber found it quite natural that the national authorities should enjoy a wide margin of appreciation when they were asked to make rulings on such matters, subject to review by the Court (§ 41). Having regard to the competing interests of the applicant and children who were eligible for adoption, and to the paramountcy of the latter's best interests, it noted that the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents, that there were wide differences in national and international opinion and that there were not enough children to adopt to satisfy demand (§ 42). Taking account of the broad margin of appreciation to be left to States in this area and to the need to protect children's best interests to achieve the desired balance, the Chamber considered that the refusal to authorise adoption had not infringed the principle of proportionality and that, accordingly, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention (§§ 42 and 43).",
"71. The Court notes that the present case also concerns the question of how an application for authorisation to adopt submitted by a homosexual single person is dealt with; it nonetheless differs in a number of respects from the above-cited case of Fretté. The Court notes in particular that whilst the ground relating to the lack of a referent of the other sex features in both cases, the domestic administrative authorities did not – expressly at least – refer to E.B.'s “choice of lifestyle” (see Fretté, cited above, § 32). Furthermore, they also mentioned the applicant's qualities and her child-raising and emotional capacities, unlike in Fretté where the applicant was deemed to have had difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child (§§ 28 and 29). Moreover, in the instant case the domestic authorities had regard to the attitude of E.B.'s partner, with whom she had stated that she was in a stable and permanent relationship, which was a factor that had not featured in the application lodged by Mr Fretté.",
"72. In the instant case the Court notes that the domestic administrative authorities, and then the courts that heard the applicant's appeal, based their decision to reject her application for authorisation to adopt on two main grounds.",
"73. With regard to the ground relied on by the domestic authorities relating to the lack of a paternal or maternal referent in the household of a person seeking authorisation to adopt, the Court considers that this does not necessarily raise a problem in itself. However, in the circumstances of the present case it is permissible to question the merits of such a ground, the ultimate effect of which is to require the applicant to establish the presence of a referent of the other sex among her immediate circle of family and friends, thereby running the risk of rendering ineffective the right of single persons to apply for authorisation. The point is germane here because the case does not concern an application for authorisation to adopt by a – married or unmarried – couple, but by a single person. In the Court's view, that ground might therefore have led to an arbitrary refusal and have served as a pretext for rejecting the applicant's application on grounds of her homosexuality.",
"74. The Court observes, moreover, that the Government, on whom the burden of proof lay ( see, mutatis mutandis, Karner v. Austria, no. 40016/98, §§ 41-42, ECHR 2003 ‑ IX ), were unable to produce statistical information on the frequency of reliance on that ground according to the – declared or known – sexual orientation of the persons applying for adoption, which alone could provide an accurate picture of administrative practice and establish the absence of discrimination when relying on that ground.",
"75. In the Court's view, the second ground relied on by the domestic authorities, based on the attitude of the applicant's partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R. did not feel committed by her partner's application to adopt. The authorities, which constantly remarked on this point – expressly and giving reasons – concluded that the applicant did not provide the requisite safeguards for adopting a child.",
"76. It should first be noted that, contrary to the applicant's submissions, the question of the attitude of her partner, with whom she stated that she was in a stable and lasting relationship, is not without interest or relevance in assessing her application. It is legitimate for the authorities to ensure that all safeguards are in place before a child is taken into a family. Accordingly, where a male or female applicant, although unmarried, has already set up home with a partner, that partner's attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home set-up require a full examination in the child's best interests. It would moreover be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and his future life in that new home. The legal status of a person seeking to adopt is not incompatible with an examination of his or her actual situation and the subsequent finding of not one but two adults in the household.",
"77. The Court notes, moreover, that Article 4 of the Decree of 1 September 1 998 ( see paragraph 28 above ) requires the president of the council for the relevant département to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorising a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of 20 November 1989, the Hague Convention of 29 May 1993 or the draft European Convention on the Adoption of Children ( see paragraphs 29-31 above ).",
"78. In the Court's view, there is no evidence to establish that the ground in question was based on the applicant's sexual orientation. On the contrary, the Court considers that this ground, which has nothing to do with any consideration relating to the applicant's sexual orientation, is based on a simple analysis of the known, de facto situation and its consequences for the adoption of a child.",
"79. The applicant cannot therefore be deemed to have been discriminated against on the ground of her sexual orientation in that regard.",
"80. Nonetheless, these two main grounds form part of an overall assessment of the applicant's situation. For this reason, the Court considers that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision.",
"81. With regard to the administrative phase, the Court observes that the president of the council for the département did not base his decision exclusively or principally on the second ground, but on “ all ” the factors involved – that is, both grounds – without it being possible to consider that one of them was predominant or that one of them alone was sufficient to make him decide to refuse authorisation ( see paragraph 17 above ).",
"82. With regard to the judicial phase, the Nancy Administrative Court of Appeal noted that the decision was based on two grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household. It added that the documents in the file and the conclusions reached after examining the application showed that the applicant's lifestyle did not provide the requisite safeguards for adopting a child, but disputed that the president of the council for the département had refused authorisation on the basis of a position of principle regarding her choice of lifestyle, namely, her homosexuality ( see paragraph 24 above ).",
"83. Subsequently, the Conseil d'Etat held that the two grounds on which the applicant had been refused authorisation to adopt were in keeping with the statutory provisions. It also held that the reference to the applicant's “lifestyle” could be explained by the documents in the file submitted to the tribunals of fact, which showed that the applicant was, at the time of her application, in a stable homosexual relationship, but that this could not be construed as a decision based on a position of principle regarding her sexual orientation or as any form of discrimination ( see paragraph 25 above ).",
"84. The Court therefore notes that the administrative courts went to some lengths to rule that although regard had been had to the applicant's sexual orientation, it had not been the basis for the decision in question and had not been considered from a hostile position of principle.",
"85. However, in the Court's opinion the fact that the applicant's homosexuality featured to such an extent in the reasoning of the domestic authorities is significant. Besides their considerations regarding the applicant's “ lifestyle ”, they above all confirmed the decision of the president of the council for the département. The Court points out that the latter reached his decision in the light of the opinion given by the adoption board whose various members had expressed themselves individually in writing, mainly recommending, with reasons in support of that recommendation, that the application be refused on the basis of the two grounds in question. It observes that the manner in which certain opinions were expressed was indeed revealing in that the applicant's homosexuality was a determining factor. In particular, the Court notes that in his opinion of 12 October 1998 the psychologist from the children's welfare service recommended that authorisation be refused, referring to, among other things, an “ unusual attitude [ on the part of the applicant ] to men in that men are rejected” (see paragraph 13 above).",
"86. The Court observes that at times it was her status as a single person that was relied on as a ground for refusing the applicant authorisation to adopt, whereas the law makes express provision for the right of single persons to apply for authorisation to adopt. This emerges particularly clearly from the conclusions of the psychologist who, in her report on her interviews with the applicant of 28 August 1998, stated, with express reference to the applicant's case and not as a general comment – since she prefaces her remark with the statement that she is not seeking to diminish the applicant's confidence in herself or to insinuate that she would be harmful to a child – that “all the studies on parenthood show that a child needs both its parents ” ( see paragraph 11 above ). On 28 October 1998 the adoption board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation on the ground that an adoptive family had to be composed “ of a mixed couple ( man and woman ) ” ( see paragraph 14 above ).",
"87. Regarding the systematic reference to the lack of a “ paternal referent ”, the Court disputes not the desirability of addressing the issue, but the importance attached to it by the domestic authorities in the context of adoption by a single person. The fact that it is legitimate for this factor to be taken into account should not lead the Court to overlook the excessive reference to it in the circumstances of the present case.",
"88. Thus, notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and subsequently by the Conseil d'Etat, to justify taking account of the applicant's “ lifestyle ”, the inescapable conclusion is that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings.",
"89. The Court considers that the reference to the applicant's homosexuality was, if not explicit, at least implicit. The influence of the applicant's avowed homosexuality on the assessment of her application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to refuse her authorisation to adopt (see, mutatis mutandis, Salgueiro da Silva Mouta, cited above, § 35).",
"90. The applicant therefore suffered a difference in treatment. Regard must be had to the aim behind that difference in treatment and, if the aim was legitimate, to whether the different treatment was justified.",
"91. The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised” ( see, inter alia, Karlheinz Schmidt, cited above, § 24; Petrovic, cited above, § 30; and Salgueiro da Silva Mouta, cited above, § 29). Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8 ( see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89, ECHR 1999-VI; Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32 377/96, § 82, 27 September 1999; and S.L. v. Austria, no. 45330/99, § 37, ECHR 2003-I).",
"92. In that connection the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions ( see, inter alia, Johnston and Others, cited above, § 53).",
"93. In the Court's opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant's sexual orientation this would amount to discrimination under the Convention ( see Salgueiro da Silva Mouta, cited above, § 36).",
"94. The Court points out that French law allows single persons to adopt a child (see paragraph 49 above), thereby opening up the possibility of adoption by a single homosexual, which is not disputed. Against the background of the domestic legal provisions, it considers that the reasons put forward by the Government cannot be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation.",
"95. The Court notes, lastly, that the relevant provisions of the Civil Code are silent as to the necessity of a referent of the other sex, which would not, in any event, be dependent on the sexual orientation of the adoptive single parent. In this case, moreover, the applicant presented, in the terms of the judgment of the Conseil d'Etat, “ undoubted personal qualities and an aptitude for bringing up children ”, which were assuredly in the child's best interests, a key notion in the relevant international instruments ( see paragraphs 29-31 above ).",
"96. Having regard to the foregoing, the Court cannot but observe that, in rejecting the applicant's application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention (see Salgueiro da Silva Mouta, cited above, § 36).",
"97. Consequently, having regard to its finding under paragraph 80 above, the Court considers that the decision in question is incompatible with the provisions of Article 14 taken in conjunction with Article 8.",
"98. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 8.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"99. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"100. The applicant pointed out that without the authorisation that had been refused her it was legally impossible for her to adopt a foreign child and impossible in practice to adopt a French child. Even if the French Government were to act quickly to grant her the authorisation, the discriminatory delay would be between nine and ten years. That delay was not only a psychological strain and unfair, but also reduced her chances of being able to adopt a child one day on account of her age; she had been thirty-seven when she had applied to adopt and so would be forty-six at the youngest if authorisation were finally to be granted. Accordingly, she sought an award of 50,000 euros (EUR) for non-pecuniary damage.",
"101. The Government did not express a view.",
"102. The Court considers that the applicant must have suffered non-pecuniary damage that is not sufficiently compensated by a mere finding of a violation of Article 1 4 of the Convention taken together with Article 8. Accordingly, ruling on an equitable basis, the Court awards her EUR 10,000 in just satisfaction.",
"B. Costs and expenses",
"103. The applicant claimed EUR 14,352 in lawyer's fees from the introduction of the application until the outcome of the proceedings (sixty hours'work at the rate of EUR 200 per hour exclusive of VAT ), plus EUR 176 for the travel and accommodation expenses incurred in attending the hearing before the Grand Chamber, that is, a total of EUR 14 ,528.",
"104. The Government did not express a view.",
"105. The Court observes that, according to the criteria laid down in its case-law, it must ascertain whether the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum (see, among other authorities, Öztürk v. Turkey [GC], no. 22479/93, § 83, ECHR 1999-VI). Applying the said criteria to the present case, the Court considers reasonable the amount of EUR 1 4, 528 claimed by the applicant and awards her that sum.",
"C. Default interest",
"106. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
59 | Schwizgebel v. Switzerland | 10 June 2010 | The applicant complained that the Swiss authorities had prevented her from adopting because of her age (47 and a half at the time of her last application). She claimed among other things that she had been discriminated against in comparison with other women of her age, who were able nowadays to give birth to children of their own. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention, finding that the difference of treatment imposed on the applicant had not been discriminatory. It observed in particular that the Swiss authorities had taken their decisions in the context of adversarial proceedings allowing the applicant to submit her arguments, which had been duly taken into account by those authorities. They had further considered not only the best interests of the child to be adopted, but also those of the child already adopted. Moreover, the criterion of the age-difference between the adopter and the child had been applied by the Federal Court flexibly and having regard to the circumstances of the situation. Lastly, the other arguments given in support of the decisions, i.e. those not based on age, had not been unreasonable or arbitrary. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born on 29 July 1957 and lives in Geneva. She is single and has a Master ’ s degree in music. Music constitutes her source of income.",
"5. According to the applicant, when she was about 30, a man with whom she had been in a relationship for some ten years died in an accident. Since then she had not wished to start a family with anyone else. However, driven by the desire to bring up children, she decided, after much thought, to adopt a first child.",
"6. On 16 April 1996 she sought authorisation from the Child Protection Department for the Canton of Geneva to receive a child with a view to adoption.",
"7. The applicant explained that, having been informed that she would probably receive a negative response on account of her marital status, she withdrew her application on 4 October 1996.",
"8. After settling in Delémont ( Canton of Jura), in 1998 she submitted a new application for authorisation to receive a child, and it was granted on the basis of the favourable opinion issued by the Welfare Department.",
"9. On 8 January 2000 she received a little girl, Violaine, born in Vietnam on 30 April 1999.",
"10. On the basis of a home study report of 12 December 2001, which recommended the child ’ s adoption, the supervisory authority of Delémont granted the adoption on 26 June 2002.",
"11. On 9 July 2002 the applicant sought authorisation to receive a second child with a view to adoption.",
"12. The Social Action Department of the Republic and Canton of Jura rejected that application by a decision of 5 September 2002, which was confirmed on appeal on 7 November 2002.",
"13. The Administrative Division of the Jura Cantonal Court upheld that refusal on 25 August 2003.",
"14. On 19 January 2004 the applicant – who had moved back to Geneva in 2003 – again sought authorisation to receive a second child with a view to adoption: a child from South America between one and three years old.",
"15. In a decision of 19 July 2004, the Child Protection Department rejected her application.",
"16. The applicant appealed against that decision but her appeal was declared out of time – and therefore inadmissible – on 28 September 2004 by the Court of Justice of the Canton of Geneva.",
"17. On 20 January 2005 she submitted a fresh application for authorisation to receive a child for purposes of adoption but it was rejected by the Youth Office of the Canton of Geneva in a decision of 12 September 2005.",
"18. On 7 December 2005, at an individual hearing before the cantonal authority, the applicant stated that she wished to receive a child no older than five and that she would prefer a child from Vietnam, like her first adopted child, whilst remaining open to the possibility of adopting a child from another country.",
"19. In a decision of 24 April 2006, the Court of Justice for the Canton of Geneva dismissed the applicant ’ s appeal and upheld the refusal to authorise provisional placement of a child with a view to adoption. It did not call into question the fact that the applicant ’ s educational qualities, based on love, respect and Christian values, were recognised. Moreover, the court considered that the applicant had sufficient resources as a result of her salaried jobs. It took the view, however, that the adoption of a second child could unfairly affect the situation of Violaine. Moreover, it found that the applicant had underestimated the specific difficulties of adoption, and in particular international adoption. The court further expressed certain reservations about the applicant ’ s availability and about the prospect of her father and brother being able to assist in caring for a second child. It thus concluded that the circumstances as a whole did not enable it to foresee that the adoption would further the child ’ s welfare.",
"20. In a judgment of 5 December 2006, notified to the applicant ’ s representative on 22 January 2007, the Federal Court dismissed the applicant ’ s administrative-law appeal, finding as follows :",
"“...",
"2.1. Under Article 264 of the Civil Code – in the version in force since 1 January 2003 – a child may be adopted if the future adoptive parents have cared for it and provided for its education for at least one year, and if all the circumstances make it foreseeable that the establishment of a parent-child relationship will further the child ’ s welfare without unfairly affecting the situation of any other children of the adoptive parents. All adoptions must thus be preceded by a placement and fostering relationship of a certain duration. An imperative condition for adoption, this measure serves to justify the subsequent establishment of a parent-child relationship, to allow a probationary period for those concerned, and to provide the opportunity and means to ensure that the adoption will further the child ’ s welfare ( ATF [ Federal Court judgments ] 125 III 161 point 3a p. 162 and citations). Under Article 316 of the Civil Code, the placement of children with foster parents is subject to the authorisation and supervision of the supervisory authority or another office for the place of residence of the said parents, as designated by cantonal law ( § 1); where the child is placed with a view to its adoption, a single cantonal authority is competent ( § 1 bis, as in force since 1 January 2003); the Federal Council stipulates the requirements for implementation ( § 2).",
"In accordance with Article 11b of the Federal Council Order of 19 October 1977 governing the placement of children for the purposes of support and with a view to adoption ( ‘ the OPEE ’; RS 211.222.338), as in force since 1 January 2003, placement authorisation is given only where the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the placed child will benefit from appropriate care, education and training, and that the well-being of the other children living in the family will be safeguarded ( § 1 ( a ) ), that there is no statutory impediment to the future adoption and that all the circumstances put together, in particular the motives of the future adoptive parents, enable it to be foreseen that the adoption will further the child ’ s welfare ( § 1 ( b) ). The authority must particularly take the child ’ s interest into account where the age difference between the child and the adoptive parent is more than forty years ( Article 11b § 3 (a) OPEE; see, on this issue, ATF 125 III 161 point 7a p. 167/168).",
"This primary condition of adoption – the welfare of the child ( Article 264 of the Civil Code ) – is not easy to verify. The authority must ascertain whether the adoption is really capable of ensuring the best possible development of the child ’ s personality and of improving his or her situation; that question must be examined in all respects ( emotional, intellectual, physical ), without attributing excessive weight to the material factor ( ATF 125 III 161 point 3a in fine p. 163 and citations).",
"2.2. Under Article 264b § 1 of the Civil Code, an unmarried person – whether single, widowed or divorced – may adopt alone if he or she is at least 35 years old. In this form of adoption, the parent-child relationship is established with a single parent. As a result of that situation, the adoptive parent must, on his or her own, assume the duties that meet the child ’ s needs and remain available to care for the child to a degree that exceeds that required of each parent in a couple adopting jointly. Accordingly, the authority must particularly take into account the child ’ s interest where the applicant is not married, or where he or she is unable to adopt jointly with his or her spouse ( Article 11b § 3 ( b ) OPEE ). The legislature ’ s intention was that joint adoption should be the rule and adoption by a single parent the exception ( ATF 111 II 233 point 2cc p. 234/235). It may indeed be considered that the child ’ s interest, which is paramount, consists in principle of living in a complete family. Nevertheless, the law does expressly permit adoption by a single person, without subjecting him or her – unlike those wishing to adopt an adult or a person deprived of legal capacity ( Article 266 § 1 Chapter 3 of the Civil Code ) – to the existence of ‘ valid reasons ’. In any event, where the requisite conditions for the child ’ s welfare are satisfied, and the adoption by a single person meets all the requirements for the child ’ s fulfilment and personality development, the adoption will be granted; in such cases, at the preliminary placement stage, the conditions laid down in Article 11b of the OPEE will be satisfied, and the placement authorisation must be granted ( ATF 125 III 161 point 4b p. 165 and citations).",
"3.1. The court below found that the appellant had appropriate educational qualities. She can count on a wide network of persons who support her in her project and have promised to help her take care of the children when she is busy. Since the refusal of the authorities of the Canton of Jura ( see B.a above ), she has changed the organisation of her life by moving to Geneva, where she carries on her professional activities; since November 2004 she has been renting accommodation in an area close to the parish church of which she is maître de chapelle and in a building that also houses the offices and secretariat of the music festival of which she is the artistic director. Lastly, her financial resources are sufficient (7, 000 [ Swiss francs ] per month ). Those points being established, it is not necessary to examine them again.",
"3.2. In her application of 19 January 2004 the appellant had sought authorisation to receive ‘ a second child, from South America, aged between 1 and 3 ’; it does not appear from the application lodged the following year that those criteria had changed. However, when she appeared personally before the cantonal authority on 7 December 2005 she declared that she wished to receive a child ‘ up to the age of five ’; pointing out that A. [ the first child adopted by the applicant ] was from Vietnam, she expressed a desire to be entrusted with a child who was ‘ born in that country ’, whilst ‘ of course remaining open to other countries ’.",
"As this Court found in a recent case, such an approach cannot be admitted ( see judgment of 5A.11/2005 of 3 August 2005, point 3.1, published in FamPra.ch 2006 p. 177). The home study report ( Article 268a Civil Code and Article 11d OPEE ) is drawn up according to the age and origin of the child, factors that the applicant must indicate ( Article 11g § 2 ( a ) and ( c ) OPEE ). The Youth Office thus quite rightly, in its findings on the cantonal appeal, found that this document had been ‘ drawn up on the basis of an application for the adoption of a child aged between 1 and 3 at the time of its arrival ’. Any finding to the contrary would suggest that an application could be changed as and when the case so required, for a reduction of the age difference in this instance. It follows that the criticism of the cantonal court for not having granted an ‘ authorisation for an older child, in order to reduce the age difference ’ appears ill-founded. The fact that the Convention between Switzerland and Vietnam on cooperation in matters of child adoption came into force while the case was pending on appeal, that is to say on 9 April 2006 ( RO 2006 p. 1767), is immaterial; moreover, the appellant does not show that she would satisfy the conditions laid down in that agreement, or even – notwithstanding the opinion of the Youth Office ’ s representative ( see record of individual hearing on 5 April 2006) – that her project would in fact be feasible.",
"3.3. The appellant was born in 1957 and is thus 49 years old; in relation to a child of between one and three years old – leaving aside the waiting times in international adoption – the age difference would be between forty-six and forty-eight years. In the light of the Federal Court ’ s case-law such a difference appears excessive ( see judgment 5A.6/2004 of 7 June 2004, point 3.2, published in FamPra.ch 2004 p. 710 : single person ‘ of almost 50 years ’ wishing to adopt a ‘ girl under 5 years old ’; see also the references cited in ATF 125 III 161 point 7a, p. 167/168). As the cantonal authority rightly pointed out, even an age difference of forty-five years is too great. In that case the appellant would, at over 60, find herself the single parent of two teenagers, who, in addition to the problems arising in that period of life, may well face particular difficulties as adopted children (see, for example, judgment 5A.21/1999 of 21 December 1999, point 3d, published in FamPra.ch 2000 p. 546), especially as the future child might have specific needs. The appellant is thus wrong to rely on Federal Court judgment 125 III 161 ( age difference between forty-four and forty-six years ), where, moreover, the adoption of a single child was at stake ( see point 3.4 below ).",
"3.4. The opinion of the court below, according to which the appellant underestimated the burden represented by a second child, cannot be disputed. Whilst it may be admitted, from a theoretical standpoint, that the presence of a sister or brother may have beneficial effects in emotional and social terms ( see judgment 5A.25/1996 of 1 May 1997, point 6b, unpublished, in SJ 1997 pp. 597 et seq. ), that assessment should be nuanced as far as adopted children are concerned. The home study report noted that A., after enjoying exclusive maternal attention, faced the risk of ‘ reactivating a feeling of abandonment ’; the positive effects of a new adoption on her situation ( Article 264 in fine of the Civil Code, section 9 ( b ) LF- ClaH [Federal Law on the Hague Convention ], and Article 11b § 1 ( a ), in fine, OPEE ) are not therefore certain ( see, in general, Lücker -Babel, Adoption internationale et droits de l ’ enfant, Fribourg 1991, p. 44; this author observes that ‘ it is in families that have a number of adopted children or a number of biological children [ and only one adoptive child ] that the failure rate is the highest ’ ). In addition, it cannot be ruled out that the second child might have difficulties related to the deprivations suffered by children who have been abandoned ( judgment 5A.9/1997 of 4 September 1997, point 4b, published in RDT 1998 p. 118), and this might complicate the arrangements made by the appellant. These findings are consistent with those of the Jura Social Action Department in its additional report of 11 June 2003.",
"The appellant disputes that assessment; she asserts, relying on statements from third parties, that the second adoption would be ‘ beneficial for A. ’ and criticises the cantonal judges for straying into ‘ theoretical conjectures ’. Those criticisms appear unjustified. Given that the placement authorisation precedes the adoption decision, the authority must inevitably make a prognosis. In view of the characteristics of an adoption by a single person and the dramatic consequences that a failed adoption would have for the child ( see, on this subject, Lücker -Babel in RDT 1994 pp. 86 et seq. ), the court below cannot be reproached for its rigour ( see Breitschmid, op. cit., n. 19 ad Article 264 of the Civil Code and the literature cited ), as was in fact required of it by Article 11b § 3 of the OPEE ( ‘ most particularly ’ ). It is not for this Court to substitute its own conception of the child ’ s welfare for that of the cantonal authority and of the investigators ( see FamPra.ch 2006 p. 178, point 3.2 in fine and citations), but solely to ascertain whether relevant circumstances have not been taken into consideration or, indeed, whether crucial factors have been overlooked. Notwithstanding the appellant ’ s categorical denials, that is not the case here.",
"3.5. The cantonal authority found that the assistance that the appellant ’ s father could provide was not a solution for the care of A. and a second child; the presence at home of an 85 -year-old father would represent, on the contrary, a handicap in the future, because his daughter would herself be required to provide him with help and support at some point. The appellant ’ s brother, who has no children – and it is not known whether his wife has a professional activity – could admittedly help her with the future child, as he has already done with A.; however, the brother lives in Lausanne. Similarly, the person intended to become the adopted child ’ s godfather lives in Lyons. Lastly, the support of neighbours in her building and of her very close friend, together with the presence of A. ’ s godfather and godmother, does not change anything, as the important criterion is the availability of the appellant herself; moreover, the education of children always rests with the parents, and it is easier to express an intention of assistance in the abstract context of a procedure than in everyday life and for some twenty years.",
"This opinion is consistent with the case-law of this Court and with legal opinion ( FamPra.ch 2006 p. 178 point 3.2; Meier/ Stettler, Droit de la filiation, vol. I, 3 rd ed., no. 263, with other citations ). Whatever the appellant may claim, the cantonal authority did not minimise the involvement of her family and friends by preferring ‘ theoretical assertions ’. The Court had occasion to observe this in a recent case, where, in spite of her ‘ extended family ’, a mother applying for a second adoption had had to entrust her adopted daughter to a neighbour when she went into hospital ( FamPra.ch 2006 ibid. ). As to the possibility of having to care for her father, she merely asserts that her brother ‘ would be present ’, but the latter has not corroborated this claim and in addition is supposed to make up for any deficiencies of the appellant. Moreover, the child ’ s interest cannot be measured solely in terms of the availability of the parent who is seeking to adopt alone (Meier/ Stettler, ibid. ). The grounds set out above are, in any event, sufficient for the decision appealed against to be upheld.",
"4. In conclusion, having regard to the discretionary powers enjoyed by the placement authorities ( RDT 1998 p. 118 point 4b), the decision of the court below does not lay itself open to criticism. Accordingly, the appeal must be dismissed, with costs awarded against the appellant ( section 156 ( 1 ) of the Judicial Organisation Act ). ”"
] | [
"II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW",
"A. Domestic law",
"21. The relevant provisions of the Swiss Civil Code are as follows:",
"Chapter IV : AdoptionA. Adoption of minorsArticle 264 (General condition)",
"“ A child may be adopted if the future adoptive parents have provided it with care and education for at least one year and if, in the light of all the circumstances, it may be foreseen that the establishment of a parent-child relationship will further the child ’ s welfare without unfairly affecting the situation of other children of the adoptive parents. ”",
"Article 264b ( Adoption by a single person )",
"“1. An unmarried person may adopt a child alone if he or she is at least 35 years old.",
"...”",
"Article 268a ( Enquiries )",
"“1. An adoption shall not be granted until enquiries have been made, covering all essential circumstances, where necessary with the assistance of experts.",
"2. The enquiries shall concern, in particular, the personality and health of the adoptive parents and the child, their mutual suitability, the parents ’ ability to bring up the child, their financial situation, their motives, their family circumstances and the development of the fostering relationship.",
"3. Where the adoptive parents have descendants, the opinion of the latter shall be taken into account. ”",
"Article 316 ( Supervision of children placed with foster parents )",
"“1. The placement of children with foster parents shall be subject to the authorisation and supervision of the supervisory authority or another office for the foster parents ’ place of residence, as designated by the law of the canton.",
"1 bis. Where a child is placed with a view to adoption, a single cantonal authority shall be responsible.",
"2. The Federal Council shall issue implementing regulations.”",
"22. The relevant provisions of the Federal Council ’ s Order governing the placement of children for support and with a view to adoption ( “ the OPEE ” ) of 19 October 1977 read as follows :",
"Article 11b (Conditions for grant of authorisation )",
"“Authorisation may only be granted where :",
"( a ) the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the fostered child will benefit from appropriate care, education and training and that the well-being of other children in the family will be safeguarded; and where",
"( b ) there is no legal impediment preventing the future adoption and provided it can be foreseen, in the light of all the circumstances, in particular the motives of the future adoptive parents, that the adoption will further the child ’ s welfare.",
"The capacities of the future adoptive parents will require special attention if there are circumstances that may render their task difficult, in particular :",
"( a ) where it may be feared, in view of the child ’ s age, especially if it is over six years of age, or in view of its development, that it may have difficulties settling into its new environment;",
"( b ) where the child is physically or mentally handicapped;",
"( c ) where more than one child will be placed in the same family;",
"( d ) where the family already has more than one child.",
"The authority will take particular account of the child ’ s interest where :",
"( a ) the age difference between the child and future adoptive father or mother is more than forty years;",
"( b ) the applicant is not married or he or she cannot adopt jointly with his or her spouse. ”",
"Article 11g ( Provisional authorisation to receive a child who has previously been living abroad )",
"“ Where the future adoptive parents meet the conditions laid down in Articles 11b and 11c, § 1, provisional authorisation to receive a child who has previously been living abroad, with a view to his or her adoption, may be delivered, even if the child has not yet been determined.",
"In their application, the future adoptive parents shall indicate :",
"( a ) the child ’ s country of origin;",
"( b ) the service or person in Switzerland or abroad whose assistance will be required in finding the child;",
"( c ) their stipulated conditions regarding the child ’ s age;",
"( d ) where appropriate, their stipulated conditions regarding the child ’ s gender or state of health.",
"The provisional authorisation may be limited in time and may be subject to obligations and conditions.",
"The child may be received in Switzerland by its future adoptive parents only once the visa has been issued or leave to remain has been secured.",
"After the child has entered Swiss territory, the authority shall decide on the granting of permanent authorisation.”",
"B. Comparative law",
"23. Most European legislations authorise adoption by a single person. However, a number of different situations can be found. The legislative provisions of certain States permit any person, man or woman, with or without a precise indication of marital status, to apply for adoption. This is the case, in particular, for the following countries : Belgium, the Czech Republic, Estonia, Finland, “the former Yugoslav Republic of Macedonia”, France, Hungary, Ireland, Malta, the Netherlands, Portugal, Russia, Spain, Sweden, Turkey and the United Kingdom. Certain States, such as Germany or Latvia, allow adoption by a single person subject to certain conditions. In German legislation, adoption is regarded as legitimate where it contributes to the child ’ s physical and moral well-being and where the establishment of an effective parent-child relationship can be expected.",
"24. Other States impose restrictions on the adoption of a child by a single person. For example, in Slovakia and Croatia, adoption by a single parent remains an exception. The possibility may be envisaged only if it can be shown that the adoption is in the child ’ s interest ( in Slovakia and Croatia ). In the same vein, Serbian and Montenegrin legislations allow adoption by a single person only where there are sufficient reasons to justify it. Luxembourg law draws a distinction between simple adoption (which does not terminate the connection with the family of origin) and full adoption (which terminates all legal connection with the family of origin), stipulating that simple adoption alone, not full adoption, is possible for a single person. Unlike France and Belgium, which also have such a distinction, but which nevertheless allow single persons to adopt in both cases, it is not possible in Luxembourg or Montenegro for single persons to apply for full adoption.",
"25. The Italian legislation is similar to that of Luxembourg and Montenegro, as single persons are authorised to adopt minors only in the context of “adoption in special circumstances”. The definition of “adoption in special circumstances” corresponds to that of simple adoption, as it enables the adopted child to retain legal connections with his or her family of origin.",
"2. Conditions as to minimum and maximum age of prospective adopters",
"26. Most of the legislations of the Council of Europe ’ s member States require a minimum age for prospective adopters. That age continually decreased throughout the twentieth century. The majority of European legal systems now fix a minimum age of between 18 and 30 years. The Czech Republic, “ the former Yugoslav Republic of Macedonia”, Hungary and Romania are among the rare member States that do not stipulate a minimum age for persons wishing to adopt.",
"27. Some legislations, albeit few in number, expressly provide for a maximum age for prospective adopters. For example, Croatia, “ the former Yugoslav Republic of Macedonia”, Greece, Montenegro, the Netherlands and Portugal impose a maximum age of between 35 and 60 years ( for the latter limit, Greece and Portugal in particular ). Specific reasons may exceptionally justify non-observance of the maximum age rule. This is the case, for example, in Montenegro and the Netherlands, where an exemption from the maximum age requirement may be granted where there are sufficient reasons to justify such an exception or specific circumstances. In Montenegro and the “ the former Yugoslav Republic of Macedonia”, when exemption from the maximum age is possible, an additional condition, relating to the difference in age between adopter and adoptee, is imposed.",
"28. In another group of States, where no maximum age is stipulated, the competent national authorities in the area of adoption nevertheless take into consideration the age of the person wishing to adopt when they examine his or her personal situation. This is apparent from the material available on the legal systems of Belgium, France, Ireland, Romania, Slovakia, Spain, Sweden and the United Kingdom.",
"3. Conditions concerning age difference between adopter and adoptee",
"29. It appears that the legislations of most member States also contain provisions concerning the age difference between adopter and adoptee.",
"30. A number of legal systems – Austria, Belgium, Bulgaria, Croatia, “ the former Yugoslav Republic of Macedonia”, France, Greece, Hungary, Italy, Luxembourg, Malta, Montenegro, the Netherlands, Russia, Serbia, Spain and Turkey – impose a minimum age difference between adopter and adoptee. That difference, where required, varies between fourteen and twenty-one years. It should be noted, however, that the legislations of these States do allow derogations from the principle of the minimum age difference in certain situations.",
"31. In another group of legal systems, including in particular the Czech Republic, Denmark, Estonia, Finland, Germany, Ireland, Portugal, Romania, Slovakia, Sweden, Ukraine and the United Kingdom, no minimum age difference is provided for by law. In those cases the legislation may expressly provide that the age difference must be “appropriate”, “neither too wide nor too narrow” or “reasonable”.",
"32. Some legislations set a maximum age difference between adopter and adoptee, namely forty years in Denmark, Finland and the Netherlands ( in the latter, only for the adoption of foreign children ), forty-five years in Croatia, “ the former Yugoslav Republic of Macedonia”, Hungary, Italy, Malta, Serbia and Ukraine, and fifty years in Greece; also, in exceptional circumstances, in Montenegro and Portugal. However, derogations from the provisions concerning the maximum age difference are possible in specific circumstances, which are largely the same as those that are considered in respect of the minimum age difference.",
"C. International law",
"33. A significant number of instruments governing adoption, particularly in order to protect the child ’ s interest, lay down various conditions. However, few texts expressly lay down requirements related to the possibility of adoption by single persons or conditions concerning the adopter ’ s age or the age difference between adopter and adoptee. Certain international instruments concerning adoption refer to the application of the domestic law rules of the States Parties to the conventions in question.",
"1. European Convention on the Adoption of Children, 24 April 1967",
"34. The European Convention on the Adoption of Children, 24 April 1967, remains the main instrument of the Council of Europe in the area of adoption. It came into force on 26 April 1968. To date, eighteen member States, including Switzerland, have ratified it and three have just signed it.",
"35. Under the first Article of this instrument, the member States of the Council of Europe, Contracting Parties to the Convention, undertake to ensure the conformity of their law with the provisions of Part II of the Convention. This Part sets out a minimum number of essential principles to which the Contracting Parties undertake to give effect, seeking to harmonise such principles and European practice in matters of adoption.",
"36. As regards persons who are allowed to adopt a child, Article 6 stipulates that the law of the Contracting Party may permit a child to be adopted by one person. However, States that only allow adoption by a couple are not required to enact provisions to allow adoption by a single person.",
"37. As to the age - limit for adoptive parents and the age difference between them and the children, Article 7 provides that “a child may be adopted only if the adopter has attained the minimum age prescribed for the purpose, this age being neither less than 21 nor more than 35 years”. However, “ the law may ... permit the requirement as to the minimum age to be waived when (a) the adopter is the child ’ s father or mother, or (b) by reason of exceptional circumstances”.",
"38. Article 8 provides as follows:",
"“1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the interest of the child.",
"2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home.",
"3. As a general rule, the competent authority shall not be satisfied as aforesaid if the difference in age between the adopter and the child is less than the normal difference in age between parents and their children.”",
"2. European Convention on the Adoption of Children ( Revised ), 27 November 2008",
"39. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on the Adoption of Children have led a large number of States Parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child ’ s best interests into account.",
"40. The Council of Europe ’ s European Convention on the Adoption of Children (Revised) (“the Revised Convention”), which was opened for signature on 27 November 2008, has not yet come into force; fourteen member States have signed it to date. It will replace, as regards the States Parties thereto, the European Convention on the Adoption of Children.",
"41. Under Article 7 of the Revised Convention (conditions for adoption), domestic law will “permit a child to be adopted ... by one person”. Article 9 (minimum age of the adopter) provides as follows :",
"“1. A child may be adopted only if the adopter has attained the minimum age prescribed by law for this purpose, this minimum age being neither less than 18 nor more than 30 years. There shall be an appropriate age difference between the adopter and the child, having regard to the best interests of the child, preferably a difference of at least sixteen years.",
"2. The law may, however, permit the requirement as to the minimum age or the age difference to be waived in the best interests of the child:",
"a. when the adopter is the spouse or registered partner of the child ’ s father or mother; or",
"b. by reason of exceptional circumstances. ”",
"42. This Article does not prevent the national law from imposing a minimum age of more than 18 years on the adopter. Any higher level of minimum age must nevertheless respect the principle of adoption as enshrined in the Convention and, accordingly, that age cannot exceed 30. The upper limit of the minimum age that was set by the 1967 Convention, namely 35 years, now appears excessive; it has thus been set at 30. Moreover, the Convention does not prescribe a maximum age for the adopter ( see Explanatory Report on the Revised Convention, §§ 50-52).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"43. Relying on Article 12 of the Convention, taken in conjunction with Article 14, the applicant, a single woman aged forty -seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. In this connection, she also claimed to be a victim of discrimination in relation to women who could nowadays have biological children at that age. Article 14 reads as follows :",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"44. Article 12 of the Convention provides :",
"“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”",
"45. Notice of the application was given to the Government on 17 February 2009. They were invited to submit their observations on a possible violation of Article 14 of the Convention, taken in conjunction with Article 8, which reads as follows :",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"...",
"B. The Court ’ s assessment",
"69. The Court is aware of the fact that the applicant, who was not represented before the Court when she lodged the present application, relied on Article 14 of the Convention taken in conjunction with Article 12. However, since the Court is master of the characterisation to be given in law to the facts of the case ( see, for example, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 - I, and Glor v. Switzerland, no. 13444/04, § 48, ECHR 2009 ), it considers it more appropriate, in the light of all the circumstances of the case, to examine the present case under Article 8.",
"...",
"2. Merits",
"( a ) Applicable principles",
"76. The Court reiterates that Article 14 of the Convention affords protection against any discrimination in the enjoyment of the rights and freedoms set forth in the other substantive provisions of the Convention and Protocols thereto. However, not every difference in treatment will automatically amount to a violation of that Article. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997 - VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 - VIII ).",
"77. According to the Court ’ s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective or reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure in question, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102 ).",
"78. In other words, the notion of discrimination generally covers those cases where a person or group is treated, without proper justification, less favourably than another, even if the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94 ). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland ( dec. ), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73).",
"79. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. One of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States ( see, among other authorities, Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ).",
"80. Since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the aims to be achieved. The existence or non-existence of common ground between the legal systems of the Contracting States may in this connection constitute a relevant factor in determining the extent of the authorities ’ margin of appreciation ( see Rasmussen, cited above, § 40, and, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30 ).",
"81. The Convention and Protocols thereto must also be interpreted in the light of present-day conditions ( see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII ). Lastly, the Court reiterates the well-established principle in its case-law that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ).",
"( b ) Application of these principles to the present case",
"( i ) The existence of a difference in treatment between persons placed in analogous situations",
"82. The applicant, a single woman aged forty-seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. She claimed, in particular, to be a victim of discrimination in relation to women who could nowadays have biological children at that age.",
"83. The Government submitted, by contrast, that there had been no difference in treatment on the part of the State in similar or analogous situations, since the State could not have any influence over a woman ’ s ability or inability to have biological children. Moreover, the Government argued that it could not be concluded from the present case that in Switzerland there was a general discriminatory attitude based on the age of persons wishing to adopt a child. The Federal Court ’ s case-law illustrated the contrary, since an age difference of forty-four years, or even of forty- six years, had not been found excessive in two cases that it had examined ...",
"84. The Court cannot share the applicant ’ s opinion that she has been the victim of discrimination in relation to women who, nowadays, are able to have biological children at that age. Like the Government, it finds that this does not correspond to a difference in treatment on the part of the State in analogous or similar situations. As the Government rightly observed, the State has no influence over a woman ’ s ability or inability to have biological children.",
"85. The Court is of the opinion, by contrast, that the applicant may consider herself to have been treated differently from a younger single woman who, in the same circumstances, would be likely to obtain authorisation to receive a second child with a view to its adoption. Accordingly, the applicant may claim to be a victim of a difference in treatment between persons in analogous situations.",
"( ii ) The existence of objective and reasonable justification",
"86. The Court has no doubt that the denial of authorisation to receive a child with a view to adoption pursued at least one legitimate aim : to protect the well-being and rights of the child ( see, mutatis mutandis, Fretté, cited above, § 38). It remains to be determined whether the second condition – the existence of justification for a difference in treatment – was also met.",
"87. The Court notes that in 1998 the applicant, then aged 41, applied for authorisation to receive a first child and it was granted. In January 2000 she received a little girl, who was born in Vietnam. The adoption was finalised on 26 June 2002 ( see paragraph 10 above ).",
"88. As regards the subsequent procedure with a view to the adoption of a second child, the Court observes that the domestic authorities by no means called into question the fact that the applicant had the requisite child-rearing capacities and financial means in order to adopt a second child. However, the Federal Court found that there would be an age difference between the applicant, who was 49 at the time it delivered its judgment, and the child to be adopted, of between forty-six and forty-eight years, a difference that it regarded as excessive and not in the child ’ s interest in the circumstances of the case. The Federal Court added, like the court below, that even assuming that the adoption concerned a 5 -year-old child, and not a 3 -year-old as the applicant had initially wished, an age difference of forty-five years in relation to the child appeared excessive.",
"89. It must be noted that there is no common ground in this area. In the present case the applicant wished to adopt alone, as a single mother. On the basis of research it has carried out, the Court notes that such a right is not guaranteed in all the member States of the Council of Europe, at least not in an absolute manner. Certain legislations permit adoption by a single person on an exceptional basis and only subject to certain conditions (paragraphs 23-25 above ). The European Convention on the Adoption of Children, in its 24 April 1967 version, stipulates that the laws of the States Parties may permit a child to be adopted by one person, but it does not make this mandatory ( see paragraph 36 above ), unlike the Revised Convention of 27 November 2008, Article 7 § 1 ( b) of which will oblige States Parties thereto, once it has come into force, to authorise adoption by a single person.",
"90. As regards the applicant ’ s age, which according to her was the main criterion of distinction, no uniform principle can be found in the legal systems of the Contracting States, neither in respect of the lower and upper age- limits for adopters nor in respect of the age difference between the adopter and the adopted child. Most of the Council of Europe ’ s member States require a minimum age for prospective adopters, an age that continually decreased throughout the twentieth century ( see paragraph 26 above ). In addition, Article 264 ( b) of the Swiss Civil Code sets the minimum age for a person wishing to adopt alone at 35 ( see paragraph 21 above ), which is consistent with Article 7 of the European Convention on the Adoption of Children of 24 April 1967. It can be seen from the Explanatory Report on the Revised Convention that such a limit appeared too high and it was therefore reduced to 30 in the new version. The Court observes that this development does not undermine the Government ’ s position in the present case, as the applicant did not complain that this minimum age had prevented her from adopting a second child.",
"91. As regards the maximum age for prospective adopters, the Court again finds that there is great diversity in the solutions adopted by the legislatures of the member States. Admittedly, some States have set the maximum age at 60 ( see paragraph 27 above ), but the Court finds that no obligation can arise for Switzerland from those isolated cases. It should also be taken into account that neither the Convention of 1967 nor that of 2008 prescribes a maximum age-limit for adopters. The Court notes that the same applies to the age difference between adopter and adoptee. It would point out that the Federal Court found, in the light of its own case-law, that an age difference of between forty-six and forty-eight years was in the present case excessive. In the Court ’ s view, such a conclusion is not per se incompatible with Article 14, even though some legislations, albeit few in number, allow for an even greater maximum age difference ( see paragraph 32 above ). The 1967 Convention does not lay down any fixed rule in this connection and Article 9 § 1 of the 2008 Convention simply provides that there should be “an appropriate age difference”.",
"92. In view of the foregoing, the Court takes the view that, in the absence of any consensus in this area, the Swiss authorities had a wide margin of appreciation and that both the domestic legislation and their decisions appear to fall squarely within the framework of the solutions adopted by the majority of the member States of the Council of Europe and, moreover, to be in conformity with the applicable international law.",
"93. The Court considers it quite natural that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on such matters. Since the delicate issues raised in the present case touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State (see, mutatis mutandis, Manoussakis and Others v. Greece, 26 September 1996, § 44, Reports 1996-IV, and Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII).",
"94. This margin of appreciation should not, however, be interpreted as granting the State arbitrary power, and the authorities ’ decision remains subject to review by the Court for conformity with the requirements of Article 14 of the Convention.",
"95. As the Government submitted, at issue here are the competing interests of the applicant and the children in question. The State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The Court points out in that connection that it has already found that where a family tie is established between a parent and a child, “particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent” (see E.P. v. Italy, no. 31127/96, § 62, 16 September 1999, and Johansen v. Norway, 7 August 1996, § 78, Reports 1996-III).",
"96. As to the present case, the domestic authorities ’ decisions were taken in the context of adversarial proceedings during which the applicant was able to submit her arguments, which were duly taken into account by the authorities. Those decisions contained detailed reasoning and were based in particular on the in-depth enquiries carried out by the cantonal authorities. They were inspired not only by the best interests of the child to be adopted, but also by those of the child already adopted. Moreover, the Court finds it noteworthy that the criterion of the age difference between adopter and adoptee is not laid down by Swiss law in the abstract but has been applied by the Federal Court flexibly and having regard to the circumstances of each case. In particular, the Court does not find unreasonable or arbitrary the argument of the domestic bodies that the placement of a second child, even of a similar age to the first, would constitute an additional burden for the applicant. Nor would it disagree with the point that problems are more numerous in families with more than one adopted child ( see Federal Court judgment, point 3.4, paragraph 20 above ). It is clear in this type of case that the use of statistical data is necessary and that a degree of speculation is inevitable.",
"97. If account is taken of the broad margin of appreciation accorded to States in this area and the need to protect children ’ s best interests, the refusal to authorise the placement of a second child did not contravene the proportionality principle.",
"98. In short, the justification given by the Government appears objective and reasonable and the difference in treatment complained of is not discriminatory within the meaning of Article 14 of the Convention.",
"99. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Article 8."
] |
60 | Gas and Dubois v. France | 15 March 2012 | This case concerned two cohabiting women, one of whom had been refused a simple adoption order in respect of the other’s child. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. It saw notably no evidence of a difference in treatment based on the applicants’ sexual orientation, as opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicants were born in 1961 and 1965 respectively and live in Clamart.",
"9. Ms Valérie Gas (“the first applicant”) has cohabited since 1989 with Ms Nathalie Dubois (“the second applicant”). The latter gave birth in France on 21 September 2000 to a daughter, A., conceived in Belgium via anonymous donor insemination. A. does not have an established legal tie to her father, who acted as an anonymous donor in accordance with Belgian law. The child has lived all her life in the applicants’ shared home. On 22 September 2000 her name was entered in the register of births, deaths and marriages held at Clamart town hall. She was formally recognised by her mother on 9 October 2000.",
"10. The two applicants subsequently entered into a civil partnership agreement which was registered on 15 April 2002 with the registry of the Vanves District Court.",
"11. On 3 March 2006 the first applicant applied to the Nanterre tribunal de grande instance for a simple-adoption order in respect of her partner’s daughter, after her partner had given her express consent before a notary.",
"12. On 12 April 2006 the public prosecutor lodged an objection against the first applicant’s application, on the basis of Article 365 of the Civil Code (see paragraph 19 below).",
"13. In a judgment of 4 July 2006, the tribunal de grande instance observed that the statutory conditions for adoption were met and that it had been demonstrated that the applicants were actively and jointly involved in the child’s upbringing, providing her with care and affection. However, the court rejected the application on the grounds that the requested adoption would have legal implications running counter to the applicants’ intentions and the child’s interests, by transferring parental responsibility to the adoptive parent and thus depriving the birth mother of her own rights in relation to the child.",
"14. The first applicant appealed against that decision and the second applicant intervened in the proceedings on her own initiative.",
"Before the Versailles Court of Appeal the applicants reaffirmed their wish, by means of the adoption, to provide a stable legal framework for the child which reflected her social reality. They argued that the loss of parental responsibility on the part of the child’s mother could be remedied by means of a complete or partial delegation of parental responsibility, and submitted that other European countries permitted adoptions which created legal ties with a same-sex partner.",
"15. In a judgment of 21 December 2006, the Court of Appeal upheld the refusal of the application.",
"Like the first-instance court, the Court of Appeal noted that the statutory conditions for the adoption had been met and that it had been established that the first applicant was active in ensuring the child’s emotional and material well-being. It nevertheless upheld the finding that the legal consequences of such adoption would not be in the child’s interests, since the applicants would be unable to share parental responsibility as permitted by Article 365 of the Civil Code in the event of adoption by the spouse of the child’s mother or father, and the adoption would therefore deprive Ms Dubois of all rights in relation to her child. The court further considered that simply delegating the exercise of parental responsibility at a later date would not suffice to eliminate the risks to the child resulting from her mother’s loss of parental responsibility. Accordingly, in the court’s view, the application merely accorded with the applicants’ wish to have their joint parenting of the child recognised and legitimised.",
"16. On 21 February 2007 the applicants lodged an appeal on points of law, but did not pursue the proceedings before the Court of Cassation to their conclusion. On 20 September 2007 the President of the Court of Cassation issued an order declaring the right to appeal on points of law to be forfeit.",
"III. COUNCIL OF EUROPE TEXTS AND MATERIALS",
"A. European Convention on the Adoption of Children (revised)",
"32. This Convention was opened for signature on 27 November 2008 and came into force on 1 September 2011. It has not been signed or ratified by France. Its relevant provisions read as follows.",
"Article 7 Conditions for adoption",
"“1. The law shall permit a child to be adopted:",
"(a) by two persons of different sex",
"(i) who are married to each other, or",
"(ii) where such an institution exists, have entered into a registered partnership together;",
"(b) by one person.",
"2. States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship.",
"...”",
"Article 11 Effects of an adoption",
"“1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.",
"2. Nevertheless, the spouse or partner, whether registered or not, of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides.",
"...",
"4. States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this Article.”",
"B. Committee of Ministers’ Recommendation",
"33. Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, recommends, inter alia, to member States:",
"“...",
"24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.",
"25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member States are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Adoption",
"17. There are two types of adoption in French law: full adoption and simple adoption.",
"1. Full adoption",
"18. A full-adoption order can be made only while the child is still a minor and may be requested by a married couple or by one person. It creates a legal parent-child relationship which takes the place of the original relationship (if such existed). The child takes on the adoptive parent’s surname. A new birth certificate is drawn up and the adoption is irrevocable (Articles 355 et seq. of the Civil Code).",
"2. Simple adoption",
"19. A simple-adoption order, by contrast, does not sever the ties between the child and his or her original family, but creates an additional legal parent ‑ child relationship (Articles 360 et seq. of the Civil Code). The order can be made irrespective of the age of the person being adopted, including when he or she has reached the age of majority. The adoptive parent’s surname is added to that of the adoptee. The latter retains some inheritance rights in his or her family of origin and acquires rights vis-à-vis the adoptive parent. Simple adoption gives rise to reciprocal obligations between adopter and adoptee, in particular a maintenance requirement. The biological parents are required to support the adopted person financially only if the adoptive parent is unable to do so.",
"Where the adoptee is a minor, simple adoption results in all the rights associated with parental responsibility being removed from the child’s father or mother in favour of the adoptive parent. The legislation provides for one exception to this rule, namely where an individual adopts the child of his or her spouse. In this case, the husband and wife share parental responsibility. Hence:",
"Article 365 of the Civil Code",
"“All rights associated with parental responsibility shall be vested in the adoptive parent alone, including the right to consent to the marriage of the adoptee, unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the tribunal de grande instance to the effect that parental responsibility is to be exercised jointly. ...”",
"Unlike a full-adoption order, a simple-adoption order may be revoked at the request of the adoptive parent, the adoptee or, where the latter is a minor, the public prosecutor.",
"Simple adoption is largely aimed, where minors are concerned, at compensating for the failings of the biological parent or parents. In practice, most cases of full adoption are overseas adoptions, while the great majority of simple-adoption orders granted within families concern persons having reached the age of majority, and are often inheritance-related.",
"B. Parental responsibility",
"20. Parental responsibility is defined as the complete set of parents’ rights and responsibilities towards their minor children. It is aimed at protecting children’s “health, safety and morals, in order to ensure their education and development” (Article 371-1 of the Civil Code). In principle, once parentage has been established, the parents of a minor child automatically have parental responsibility, which can only be withdrawn on serious grounds. Parental responsibility ends when the child reaches the age of majority, normally at 18. A distinction is made between parental responsibility and the exercise of parental responsibility; the latter may be entrusted to just one parent for reasons relating to the child’s best interests. The parent not exercising parental responsibility retains the right and the obligation to oversee the maintenance and upbringing of his or her children. He or she must be informed of important decisions concerning them and may not be deprived of contact rights and the right to overnight visits without compelling reasons.",
"21. It is possible to delegate parental responsibility to a third party (Articles 376 et seq. of the Civil Code). Since the enactment of the Law of 4 March 2002 on parental responsibility, Article 377 of the Civil Code, which governs the “standard” delegation of parental responsibility, provides that, where the circumstances so require, one or both parents may apply to the family judge to have the exercise of parental responsibility delegated to a third party (an individual, an approved institution or the child welfare services for the département concerned). The delegation of responsibility is not permanent and does not encompass the right to consent to adoption. In this context, parental responsibility may be transferred in whole or in part: parental responsibility continues to be vested in the parents, but its exercise is handed over to the third party.",
"22. Within the standard delegation procedure, the Law of 4 March 2002 introduced a more flexible delegation option based on the sharing of parental responsibility (Article 377-1 of the Civil Code). The order delegating parental responsibility may stipulate, “in the interests of the child’s upbringing”, that one or both parents are to share the exercise of their parental responsibility in whole or in part with the third party, thus retaining shared responsibility. This measure makes it possible to regulate the relationship between the child, the separated couple and the third parties, whether they be grandparents, step-parents or live-in partners. Each parent retains parental responsibility and continues to exercise it. The delegation of responsibility does not entail any change of surname or the establishment of a legal parent-child relationship; it is temporary and ceases to have effect once the child reaches the age of majority.",
"C. Marriage and civil partnerships",
"23. In France, marriage is not available to same-sex couples (Article 144 of the Civil Code). This principle was reaffirmed by the Court of Cassation, which, in a judgment delivered on 13 March 2007, reiterated that “in French law, marriage is a union between a man and a woman”.",
"24. A civil partnership is defined by Article 515-1 of the Civil Code as “a contract entered into by two individuals of full age, of opposite sex or of the same sex, for the purposes of organising their life together”. Civil partnerships entail a number of obligations for those who enter into them, including the obligation to live as a couple and lend each other material and other support.",
"Civil partnerships also confer certain rights on the parties, which increased with the entry into force on 1 January 2007 of the Law of 23 June 2006 on the reform of the arrangements concerning inheritance and gifts. Hence, the partners constitute a single household for tax purposes; they are also treated in the same way as married couples for the purposes of exercising certain rights, particularly in relation to health and maternity insurance and life assurance. Some effects deriving from marriage remain inapplicable to civil partnerships. Among other things, the legislation does not give rise to any kinship or inheritance ties between the partners. In particular, the dissolution of the partnership does not entail judicial divorce proceedings but simply involves a joint declaration by both partners or a unilateral decision by one partner which is served on the other (Article 515 ‑ 7 of the Civil Code). Furthermore, civil partnerships have no implications as regards the provisions of the Civil Code concerning legal adoptive relationships and parental responsibility.",
"D. Assisted reproduction",
"25. Assisted reproduction, which refers to the techniques allowing in vitro fertilisation, embryo transfer and artificial insemination, is governed by Articles L. 2141-1 et seq. of the Public Health Code. Under Article L. 2141 ‑ 2 of the Code, assisted reproduction techniques are authorised in France for therapeutic purposes only, with a view to “remedying clinically diagnosed infertility” or “preventing transmission to the child or partner of a particularly serious disease”. They are available to opposite-sex couples of reproductive age who are married or show proof of cohabiting.",
"26. In these circumstances, Article 311-20 of the Civil Code provides for legal recognition of paternity for the second parent in the following terms:",
"“Married or cohabiting couples who, in order to conceive, have recourse to medical assistance involving a third-party donor shall give their prior consent, in a manner that ensures confidentiality, before the judge or notary, who shall inform them of the implications of this act as regards the legal parent-child relationship.",
"...",
"Any man who, having given his consent to assisted reproduction, does not recognise the child born as a result shall incur liability vis-à-vis the mother and the child.",
"A judicial declaration of paternity shall also be issued in his regard. The action shall be brought in conformity with the provisions of Articles 328 and 331.”",
"E. Case-law",
"1. Refusal of applications for simple adoption of the minor child of an individual’s civil partner",
"27. The Court of Cassation has issued several rulings on this subject. The first two judgments, delivered on 20 February 2007, concerned cases involving lesbian couples living in a civil partnership and raising children whose sole legal parent was their mother, as their paternity had not been legally established. In both cases the mother’s partner had applied for a simple-adoption order in respect of the children, with the consent of their mother. One of the applications was granted by the Bourges Court of Appeal on the ground, in particular, that “the adoption [was] in the child’s interests”, while the other was rejected by the Paris Court of Appeal. Referring to Article 365 of the Civil Code, the First Civil Division of the Court of Cassation quashed the first Court of Appeal judgment and declared it null and void, in the following terms:",
"“The adoption resulted in parental responsibility for the child being transferred, and in the biological mother, who planned to continue raising the child, being deprived of her rights. Accordingly, although Ms Y had consented to the adoption, the Court of Appeal, in granting the application, acted in breach of the above-mentioned provision;”",
"It upheld the second Court of Appeal judgment as follows:",
"“However, the Court of Appeal correctly observed that Ms Y ..., the children’s mother, would lose parental responsibility in relation to the children were they to be adopted by Ms X, although the couple were cohabiting. It noted that a delegation of parental responsibility could be requested only if the circumstances so required, which had been neither established nor alleged, and that in the present case the delegation or sharing of parental responsibility would, in the context of an adoption, be contradictory since the adoption of a minor was designed to attribute exclusive parental responsibility to the adoptive parent. Accordingly, the Court of Appeal, which, despite the allegations to the contrary, examined the issue, gave lawful grounds for its decision.” (Two judgments of the First Civil Division, Court of Cassation, 20 February 2007, judgments nos. 224 and 221, Bulletin Civil 2007 I, nos. 70 and 71).",
"The Court of Cassation subsequently reaffirmed this approach:",
"“Firstly, the child’s (father or) mother would be deprived of parental responsibility in the event of the child’s adoption, despite being perfectly fit to exercise that responsibility and having given no indication of wishing to reject it. Secondly, Article 365 of the Civil Code provides for the sharing of parental responsibility only in the event of adoption of the spouse’s child; as the French legislation stands, spouses are persons joined by the bonds of marriage. Accordingly, the Court of Appeal, which did not rule in breach of any of the provisions of the European Convention on Human Rights, gave lawful grounds for its decision.” (First Civil Division, Court of Cassation, 19 December 2007, Bulletin Civil 2007 I, no. 392; see also, to similar effect, the judgment of the First Civil Division, Court of Cassation, of 6 February 2008, unpublished, on appeal no. 07-12948 and First Civil Division, Court of Cassation, 9 March 2011).",
"28. The first two judgments, delivered on 20 February 2007, were published in the Court of Cassation Information Bulletin, on the Internet and in the Court of Cassation’s annual report.",
"2. Delegation of parental responsibility",
"29. In a first leading judgment (Court of Cassation, First Civil Division, 24 February 2006, published in the Bulletin), the Court of Cassation granted an application by a same-sex couple living in a civil partnership who sought to take advantage of this option. The court ruled that Article 377-1 of the Civil Code “[did] not prevent a mother with sole parental responsibility from delegating the exercise of that responsibility in whole or in part to the woman with whom she live[d] in a stable and lasting relationship, where the circumstances so require[d] and the measure [was] compatible with the child’s best interests”. The Court of Cassation subsequently tightened up the conditions to be met for the granting of an application to delegate parental responsibility (Court of Cassation, First Civil Division, 8 July 2010, published in the Bulletin). While the conditions laid down remain the same (the circumstances have to require such a measure and it has to be compatible with the child’s best interests), the Court of Cassation now requires applicants to demonstrate that the measure would improve the lives of the children concerned and is essential. This restrictive approach is now applied by the courts hearing such cases on the merits (Paris tribunal de grande instance, 5 November 2010).",
"3. Constitutional Council decision of 6 October 2010",
"30. In a case concerning facts similar to those in the present case, the applicants alleged a breach of the constitutional principle of equality and requested the Court of Cassation to transmit a request for a priority preliminary ruling on constitutionality to the Constitutional Council. The Court of Cassation granted the request.",
"31. In a decision of 6 October 2010, the Constitutional Council held that it was not its task to rule on the constitutionality of the impugned statutory provisions in the abstract, but rather in the light of the Court of Cassation’s consistent interpretation. In the case under consideration, the constitutionality of Article 365 of the Civil Code therefore had to be assessed in the light of the fact that the latter had the effect of prohibiting in principle the adoption of a child by the individual’s partner or cohabitant, as ruled by the Court of Cassation on 20 February 2007.",
"The Constitutional Council began by pointing out that the provisions of Article 365 did not hinder couples from cohabiting or entering into a civil partnership, any more than it prevented the biological parent from involving his or her partner or cohabitant in the child’s upbringing. However, the Constitutional Council ruled that the right to family life as guaranteed by the Constitution did not confer a right to establish a legal adoptive relationship between the child and his or her parent’s partner.",
"The Constitutional Council went on to observe that the legislature had deliberately chosen to confine the option of simple adoption to married couples and that it was not its place to substitute its own assessment for that of the legislature.",
"THE LAW",
"34. The applicants alleged that they had been subjected to discriminatory treatment based on their sexual orientation, in breach of their right to respect for their private and family life. They relied on Article 14 of the Convention taken in conjunction with Article 8. These two Articles provide:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"I. THE GOVERNMENT’S PRELIMINARY OBJECTION",
"35. As their main submission, the Government reiterated that Article 8 of the Convention was not applicable in the present case. Echoing the arguments already put forward during examination of the admissibility of the application, the Government referred to the Court’s case-law according to which the existence or otherwise of family life, which was not confined to the legal framework of marriage, had to be assessed in each case. However, the Government stressed that, according to the Court’s settled case-law, Article 8 did not guarantee any right to adoption or to the creation of a legal tie between an adult and a child who lived in the same family, still less a right to have a child. Since the Convention did not cover a right to adopt, the Government submitted that the applicants could not claim discrimination in the enjoyment of such a right, as Article 14 had no independent existence.",
"36. The applicants referred to the arguments put forward during examination of the admissibility of the case.",
"37. The Court notes that the applicants based their arguments on Article 14 of the Convention taken in conjunction with Article 8 and that the latter does not guarantee either the right to found a family or the right to adopt (see E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008). This was not disputed by the parties. Nevertheless, the Court cannot but observe that examination of the applicants’ specific case leads to the conclusion that they have a “family life” within the meaning of Article 8 of the Convention. Furthermore, sexual orientation falls within the personal sphere protected by Article 8. It follows that the facts of the case come “within the ambit” of at least one Article of the Convention, which may be taken in conjunction with Article 14, on which the applicants rely in the present case.",
"38. The Court refers in that regard to its decision of 31 August 2010 on the admissibility of the application, in which it found that Article 14 taken in conjunction with Article 8 was applicable in the present case.",
"39. The Court must therefore dismiss the Government’s preliminary objection and will proceed to examine the merits of the complaint.",
"II. MERITS",
"A. The parties’ submissions",
"1. The applicants",
"40. The applicants complained of the refusal of the first applicant’s application to adopt her partner’s daughter. They alleged that the reason given for that refusal, namely the legal consequences of such adoption, which would deprive the child’s mother of parental responsibility, definitively ruled out adoption only for same-sex couples, who – unlike opposite-sex couples – could not marry and thereby take advantage of the provisions of Article 365 of the Civil Code. They submitted that the refusal to grant the first applicant a simple-adoption order in respect of A. for reasons of principle had infringed their right to respect for their private and family life, in a discriminatory manner.",
"41. The applicants pointed out that A. had been conceived in Belgium via anonymous donor insemination. Although she had been raised from birth by both women, for legal purposes she had only one parent, namely the second applicant. The latter had passed on her surname to A., exercised sole parental responsibility and would leave her property to A. on her death. By contrast, from a legal viewpoint the first applicant had no obligations or rights vis-à-vis the child. The applicants explained that they had sought to remedy that situation by applying for a simple-adoption order, which would have created a legal parent-child relationship in addition to the original relationship. A. would thus have had two parents in the eyes of the law, with the legal certainty that entailed. This had been refused them by the domestic courts.",
"42. The applicants therefore claimed that they had been subjected to discrimination based on their sexual orientation, since the French authorities prohibited same-sex couples, but not married couples, from obtaining a simple-adoption order. They pointed out that same-sex marriage was still prohibited in France, as indicated by the Court of Cassation in a judgment of 13 March 2007.",
"This discriminatory difference in treatment also applied between same ‑ sex couples who cohabited or had entered into a civil partnership and heterosexual couples in the same situation, since the latter could circumvent the strict requirements of Article 365 of the Civil Code by marrying, an option that was not available to same-sex couples. The applicants stressed that they were not seeking access to marriage in the instant case, but emphasised that the provisions of the Civil Code merely appeared to be neutral but in fact gave rise to indirect discrimination.",
"43. At the hearing, to illustrate their remarks, the applicants compared the situation of A. with that of another child, A.D. The latter had been conceived via anonymous donor insemination by a woman cohabiting with a man, Mr D. Although A.’s situation was in all respects comparable to A.D.’s, their legal status differed, since by virtue of Article 311-20 of the Civil Code Mr D. had become the child’s legal father without even having to apply for a simple-adoption order (see paragraph 26 above). Hence, whether in relation to everyday life (school enrolment and monitoring of the child’s progress in school) or more serious circumstances (a road traffic accident), A. could be accompanied only by her mother, whereas A.D. could be taken care of by Mr D. Moreover, in the event of the death of the child’s birth mother, A. would become an orphan and could be placed in the care of a guardian or a foster family, whereas custody of A.D. would be entrusted to her legal father. The applicants inferred from this that the French legislation concerning simple adoption and anonymous donor insemination prevented the creation of a legal adoptive relationship between A. and the first applicant, which would have been possible had the latter been a man. While the applicants stressed that they did not wish to call into question the provisions of French law concerning access to anonymous donor insemination, they maintained that there was a difference in treatment under the law depending on whether a couple raising children was made up of two women cohabiting or in a civil partnership or of a woman and a man in the same situation.",
"44. As a further example the applicants referred to the scenario in which Mr D. died and A.D.’s mother met another man, Mr N., and decided to set up home with him or marry him. Mr N. could apply for a simple-adoption order in respect of A.D., whereas the first applicant could not do the same in relation to A.",
"45. Two women who cohabited or had entered into a civil partnership, who could not marry, were therefore treated differently from a man and a woman who, if they married, could obtain permission for the mother’s husband to adopt the child under a simple-adoption order, with automatic sharing of parental responsibility.",
"46. In the applicants’ view, this difference in treatment did not pursue any legitimate aim. In any event, the child’s best interests required that he or she should have the legal protection of two parents rather than just one. Furthermore, according to the applicants, the delegation of parental responsibility on a shared basis (which they had not requested before the domestic courts) would not suffice. This related only to parental responsibility, was temporary and, as from 8 July 2010, had not been readily granted by the national courts (see paragraph 29 above). They stressed that a simple-adoption order, rather than delegation of parental responsibility on a shared basis, provided the best guarantee of the child’s interests.",
"47. The applicants concluded that the refusal of the application for a simple-adoption order amounted to both direct and indirect discrimination based on sexual orientation, in breach of the Convention. In their view, the French government should propose amendments to the legislation to put an end to that discrimination.",
"2. The Government",
"48. The Government first provided a recap of the rules concerning adoption and delegation of parental authority in French law, and the background to them (see paragraphs 17-22 above). As to the present case, the Government had observed at the hearing that the applicants had not applied for the delegation of parental responsibility on a shared basis, although this could be justified in the circumstances (for instance, if the second applicant were to take a trip away from home).",
"49. Next, the Government submitted that Article 365 of the Civil Code did not give rise to any objective discrimination, since it applied in identical fashion to all unmarried couples, regardless of the composition of the couple. The sole exception provided for by the Article in question, applicable to an individual’s spouse, had been introduced by the legislature with a view to safeguarding the child’s interests. In the Government’s submission, marriage remained an institution which ensured greater stability within couples than other types of union. Moreover, in the case of the break ‑ up of a marriage, the family judge automatically became involved. Civil partnerships, on the other hand, afforded greater leeway with regard to entering into them and terminating them, and did not have any implications in terms of family law or the legal relationship between parents and children. In view of these considerations, the legislature had therefore sought to restrict the possibility of obtaining a simple-adoption order, in order to provide a stable framework for children’s care and upbringing.",
"50. The Government also rejected the applicants’ argument that discrimination arose indirectly or as a knock-on effect from the fact that marriage in France was available only to heterosexual couples. They observed that, according to the Court’s case-law, family life could exist outside the confines of marriage, just as it could exist without legal ties of parentage.",
"51. In any event, even if the Court were to find that there was a difference in treatment, the Government were of the view that it was justified and did not amount to discrimination, whether the applicants’ situation was compared with that of a married couple or with that of a heterosexual couple living in a civil partnership or cohabiting.",
"52. At the hearing the Government stressed in particular that French law on the legal relationship between parents and children was based entirely on the model of sexual difference. In view of this approach, which was a choice made by society, the Government took the view that allowing a child to have ties of parentage with two women or two men was a fundamental reform which could only be undertaken by Parliament. The issue therefore had to be dealt with as a whole in the course of a democratic debate and not through tangential issues such as the sharing of parental responsibility in the context of simple adoption.",
"3. The third-party interveners",
"53. The International Federation for Human Rights (FIDH), the International Commission of Jurists (ICJ), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the British Association for Adoption and Fostering (BAAF) and the Network of European LGBT Families Associations (NELFA) submitted a joint intervention to the Court.",
"54. The organisations in question began by pointing out that there were three distinct situations in which lesbian or gay individuals adopted children: firstly, an unmarried individual might seek to adopt, in a member State where this was permitted (even just as an exception), on the understanding that any partner he or she might have would have no parental rights (individual adoption); secondly, one member of a same-sex couple might seek to adopt the child of the other partner, such that both partners had parental rights vis-à-vis the child (second-parent adoption); finally, both members of a same-sex couple might seek jointly to adopt a child with no connection with either of them, such that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). In E.B. v. France (cited above), the Court had ruled in favour of equal access to individual adoption for all persons, regardless of their sexual orientation. The instant case concerned second-parent adoption.",
"55. In 2011, ten out of the forty-seven Council of Europe member States allowed second-parent adoption, and other countries were considering amending their legislation to permit it. According to the third-party interveners, there therefore appeared to be a growing consensus that, where a child was being raised within a stable same-sex couple, legal recognition of the second parent’s status promoted the child’s welfare and the protection of his or her best interests.",
"56. Other countries displayed similar trends in the legislation and case-law. Second-parent adoption was possible for same-sex couples in thirteen Canadian provinces, in at least sixteen of the fifty States of the United States of America and in other countries such as Brazil, Uruguay, New Zealand and some parts of Australia.",
"57. Referring to the United Nations Convention on the Rights of the Child and the relevant case-law of the Court and of certain national courts (such as the United Kingdom’s House of Lords and the South African Constitutional Court), the third-party interveners requested the Court to adopt the same approach, which in their view gave priority to the protection of the child’s interests.",
"B. The Court’s assessment",
"1. General principles",
"58. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008), including a different treatment in law (see Marckx v. Belgium, 13 June 1979, § 38, Series A no. 31).",
"59. On the one hand the Court has held repeatedly that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Karner v. Austria, no. 40016/98, § 37, ECHR 2003 ‑ IX; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 45, ECHR 2003 ‑ I; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI; and Schalk and Kopf v. Austria, no. 30141/04, §§ 96-97, ECHR 2010).",
"60. On the other hand, the margin of appreciation enjoyed by States in assessing whether and to what extent differences in otherwise similar situations justify a different treatment is usually wide when it comes to general measures of economic or social strategy (see, for example, Schalk and Kopf, cited above, § 97).",
"2. Application of these principles to the present case",
"61. The Court notes at the outset that the present case is to be distinguished from the case of E.B. v. France, cited above. The latter concerned the handling of an application for authorisation to adopt made by a single homosexual person. In that case, the Court pointed out that French law allowed single persons to adopt a child, thereby opening up the possibility of adoption by a single homosexual. Against the background of the domestic legal provisions, it considered that the reasons put forward by the Government could not be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation. The reasons for rejecting her application had therefore related to her personal situation and were found by the Court to be discriminatory (ibid., § 94).",
"62. The Court notes that the position is different in the present case, in which the applicants complained of the refusal to grant a simple-adoption order in respect of A. In giving reasons for their decision, the national courts found that, since a simple-adoption order would result in the rights associated with parental responsibility being transferred to the adoptive parent, it was not in the child’s best interests, given that the birth mother intended to continue raising the child. In so ruling, the courts applied the provisions of Article 365 of the Civil Code governing the exercise of parental responsibility in the event of simple adoption. As the applicants were not married, they were not covered by the sole exception provided for by that provision.",
"63. With regard to anonymous donor insemination as provided for in French law, the Court notes that the applicants, without wishing to call into question the conditions in which this is made available, criticised the legal consequences and alleged an unjustified difference in treatment (see paragraph 43 in fine above). The Court observes at the outset that the applicants did not challenge the legislation in question before the national courts. Above all, it notes that while French law provides that anonymous donor insemination is available only to heterosexual couples it also states that it is to be made available for therapeutic purposes only, with a view in particular to remedying clinically diagnosed infertility or preventing the transmission of a particularly serious disease (see paragraphs 25-26 above). Hence, broadly speaking, anonymous donor insemination in France is confined to infertile heterosexual couples, a situation which is not comparable to that of the applicants. In the Court’s view, therefore, the applicants cannot be said to be the victims of a difference in treatment arising out of the French legislation in this regard. The Court further notes that the legislation in question does not allow the creation of the legal adoptive relationship sought by the applicants.",
"64. The applicants maintained that the French courts’ refusal to grant the first applicant a simple-adoption order in respect of A. infringed their right to respect for their private and family life in a discriminatory manner. They alleged that, as a same-sex couple, they had been subjected to an unjustified difference in treatment compared with heterosexual couples, whether married or not.",
"65. The Court considers it necessary firstly to examine the applicants’ legal situation compared with that of married couples. It notes that Article 365 of the Civil Code provides for the sharing of parental responsibility in cases where the adoptive parent is the spouse of the biological parent. The applicants cannot avail themselves of this possibility since they are prohibited under French law from marrying.",
"66. The Court observes at the outset that it has already ruled, in examining the case of Schalk and Kopf, cited above, that Article 12 of the Convention does not impose an obligation on the governments of the Contracting States to grant same-sex couples access to marriage (ibid., §§ 49-64). Nor can a right to same-sex marriage be derived from Article 14 taken in conjunction with Article 8 (ibid., § 101). The Court has further held that, where a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation as regards the exact status conferred (ibid., § 108).",
"67. The Court notes that in the instant case the applicants stated that they were not seeking access to marriage but alleged that, since their situation was relevantly similar to that of married couples, they had been subjected to a discriminatory difference in treatment.",
"68. The Court is not persuaded by this argument. It points out, as it has already held, that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (see Burden, cited above, § 63, and Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000; see also Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI; Lindsay v. the United Kingdom, no. 11089/84, Commission decision of 11 November 1986, Decisions and Reports 49; and Şerife Yiğit v. Turkey [GC], no. 3976/05, 2 November 2010). Accordingly, the Court considers that, for the purposes of second-parent adoption, the applicants’ legal situation cannot be said to be comparable to that of a married couple.",
"69. Next, turning to the second part of the applicants’ complaint, the Court must examine their situation compared with that of an unmarried heterosexual couple. The latter may, like the applicants, have entered into a civil partnership or may be cohabiting. In essence, the Court notes that any couple in a comparable legal situation by virtue of having entered into a civil partnership would likewise have their application for a simple-adoption order refused (see paragraphs 19, 24 and 31 above). It does not therefore observe any difference in treatment based on the applicants’ sexual orientation.",
"70. It is true that the applicants also alleged indirect discrimination based on the fact that it was impossible for them to marry, whereas heterosexual couples could circumvent Article 365 of the Civil Code by that means.",
"71. However, in that connection the Court can only refer to its previous findings (see paragraphs 66-68 above).",
"72. Lastly, in the alternative, the Court observes that it has previously acknowledged that the logic behind this approach to adoption, which entails the severing of the existing parental tie between the adopted person and his or her biological parent, is valid for minors (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007). It considers that, in view of the background to and purpose of Article 365 of the Civil Code (see paragraph 19 above), which governs the exercise of parental responsibility in the event of simple adoption, there is no justification, on the sole basis of a challenge to the application of that provision, for authorising the creation of a dual legal parent-child relationship with A.",
"73. Accordingly, the Court concludes that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8."
] |
61 | Harroudj v. France | 4 October 2012 | This case concerned the refusal of permission for a French national to adopt an Algerian baby girl already in her care under the Islamic-law form of guardianship called “kafala”1. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that a fair balance had been struck between the public interest and that of the applicant, the authorities having sought, with due regard for cultural pluralism, to encourage the integration of kafala children without immediately severing the ties with the laws of their country of origin. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1962 and lives in Villeurbanne.",
"6. Zina Hind was born on 3 November 2003 in Algeria and was abandoned immediately by her biological mother, who gave birth anonymously. As her father was also unknown, Zina Hind became a ward of the Algerian State on 3 December 2003. The director of social services in Boumerdès (Algeria) was appointed as her guardian.",
"7. On 13 January 2004 the President of the court of Boumerdès granted the applicant, then aged 42 and unmarried, the right to take the child Zina Hind into her legal care ( kafala ). He also authorised Zina Hind to leave Algeria and settle in France.",
"8. In a decision of 19 January 2004, the President of the court of Bordj Menaïel (Algeria) admitted a request for the child to take the same name and authorised the change from Zina Hind to Hind Harroudj.",
"9. Hind Harroudj arrived in France on 1 February 2004. Since then she has been living with the applicant and the applicant’s mother.",
"10. On 8 November 2006 the applicant applied for the full adoption of Hind. In support of her request she argued that to enable Hind to be adopted was the solution most consistent with “the best interests of the child”, within the meaning of Article 3 § 1 of the Convention on the Rights of the Child of 20 November 1989 and Article 1 of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.",
"11. In a judgment of 21 March 2007 the Lyons tribunal de grande instance dismissed her application for adoption, after noting that kafala gave her parental authority, enabling her to take any decisions in the child’s interest. The court found that kafala gave the child the protection to which all children were entitled under the international conventions. It further pointed out that, under Article 370-3 of the French Civil Code (see paragraph 23 below), a child could not be adopted if the law of his or her country prohibited adoption, which it did in the case of Hind, as the Algerian Family Code stipulated: “adoption is prohibited by the Sharia and by legislation” (see paragraph 17 below). The applicant appealed against that judgment.",
"12. In a judgment of 23 October 2007 the Lyons Court of Appeal upheld the judgment of the court below:",
"“Article 370-3, second paragraph, of the Civil Code, inserted by the Law of 6 February 2001 on Intercountry Adoption, stipulates: ‘Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France’.",
"The choice-of-law rule, in so far as it refers to the personal law, is not discriminatory and is compliant with Articles 8 and 14 of the European Convention on Human Rights and with international law; Article 4 (a) of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides that adoption may take place only if the competent authorities of the State of origin have established that the child is adoptable, this not being the case where adoption is prohibited.",
"Hind Harroudj was born in Algeria.",
"Article 46 of the Algerian Family Code authorises kafala, but prohibits adoption. Under French law, simple or full adoption creates a legal parent-child relationship for the benefit of the adopters and cannot be equated with kafala. The Algerian Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage. The executive decree of 13 January 1992 on changes of name does not establish parent-child relationships, as the holder of the right of kafala retains the status of guardian.",
"The kafala system preserves the child’s interests by conferring legal status on the care provided by guardians. It is expressly recognised by Article 20 § 3 of the Convention on the Rights of the Child of 20 November 1989. Islamic law makes other provision for the inheritance of property. Accordingly, the above-mentioned provisions do not run counter to the child’s best interests.”",
"13. The applicant lodged an appeal on points of law. Under Articles 8 and 14 of the Convention, she relied on Hind’s right to respect for her family life, submitting that it was in the child’s interest for a legal parent-child relationship to be established between them, and that her inability to adopt Hind entailed a disproportionate interference with her own family life. She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child’s family life on account of the child’s nationality and country of origin, as children born in countries which did not prohibit adoption could be adopted in France.",
"14. In a judgment of 25 February 2009 the Court of Cassation dismissed her appeal on points of law:",
"“After noting that the choice-of-law rule in Article 370-3, second paragraph, of the Civil Code, referring to the personal law of the adopted child, was consistent with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption – the application of which is intended only for adoptable children, excluding those whose country of origin prohibits adoption – the Court of Appeal did not establish any difference in treatment in respect of the child’s family life or disregard the right to respect for the latter, in finding that Article 46 of the Algerian Family Code prohibited adoption but authorised kafala and in rejecting the application for adoption, in so far as kafala was expressly recognised by Article 20, paragraph 3, of the New York Convention of 26 January 1990 [adopted on 20 November 1989] on the Rights of the Child, as preserving, on a par with adoption, the child’s best interests. ...”"
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Kafala",
"1. The legal arrangement of kafala in Islamic law",
"15. Adoption, emanating from classical Roman law, which based it on the “imitation of nature” (the principle of adoptio naturam imitatur in the Institutes of Justinian) creates, between the adopter and the adoptee, a legal relationship that is identical to that existing between parent and child. Although certain States make a distinction between several levels of adoption (most often between full adoption and simple adoption), this characteristic is always present.",
"16. Under Islamic law adoption is prohibited ( haraam ). However, the right is accorded a special institution: kafala or “legal care”. In Muslim States, with the exception of Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare, education and protection.",
"17. The procedural arrangements for establishing kafala depend on the domestic law of each Muslim State. The relevant provisions of the Algerian Family Code thus read as follows:",
"Article 46",
"“Adoption ( tabanni ) is prohibited by the Sharia and by legislation.”",
"Article 116",
"“ Kafala is an undertaking to assume responsibility for supporting, educating and protecting a minor child in the same manner as a father would care for his son. It is established by a legal act.”",
"Article 117",
"“ Kafala is granted upon appearance before the judge or notary, with the child’s consent when he or she has a father and mother.”",
"Article 118",
"“The holder of the right of kafala (the kafil ) must be a Muslim, a sensible and upright person, and be in a position to support the fostered child (the makfoul ), with the capacity to protect him or her.”",
"Article 119",
"“The fostered child may be of known or unknown parentage.”",
"Article 120",
"“The fostered child shall retain his or her original legal parent-child relationship if of known parentage. Otherwise, Article 64 of the Civil Status Code shall be applied in respect of the child.”",
"Article 124",
"“Should the father and mother, or one of them, request the reinstatement under their guardianship of the fostered child, it will be for the child, provided he or she is of an age of discernment, to choose whether or not to return to his parents.",
"If the child is not of such an age, he may be returned only with the judge’s authorisation, taking into account the interests of the fostered child.”",
"2. Reference to kafala in international instruments",
"18. Articles 20 and 21 of the United Nations Convention on the Rights of the Child, of 20 November 1989, read as follows:",
"Article 20",
"“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.",
"2. States Parties shall in accordance with their national laws ensure alternative care for such a child.",
"3. Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background .”",
"Article 21",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ...”",
"19. The relevant provisions of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted in the context of the Hague Conference on Private International Law, read as follows:",
"“The States signatory to the present Convention,",
"Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...",
"Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,",
"Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children, ...",
"Have agreed upon the following provisions”",
"Article 1",
"“The objects of the present Convention are -",
"(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; ...",
"(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.”",
"Article 2",
"“...",
"2. The Convention covers only adoptions which create a permanent parent-child relationship.”",
"Article 4",
"“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin -",
"(a) have established that the child is adoptable;",
"(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; ...”",
"20. The relevant provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, also adopted in the context of the Hague Conference on Private International Law, read as follows:",
"Article 1",
"“(1) The objects of the present Convention are -",
"(a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;",
"(b) to determine which law is to be applied by such authorities in exercising their jurisdiction;",
"(c) to determine the law applicable to parental responsibility;",
"(d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;",
"(e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.",
"(2) For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.”",
"Article 3",
"“The measures referred to in Article 1 may deal in particular with –",
"...",
"(c) guardianship, curatorship and analogous institutions;",
"(d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;",
"(e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;",
"... ”",
"Article 4",
"“The Convention does not apply to -",
"...",
"(b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;",
"...”",
"3. Comparative law",
"21. Out of the twenty-two Contracting States of which a comparative law study has been made (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Georgia, Germany, Greece, Ireland, Italy, the Netherlands, Russia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom), where, as a result of historical factors, either the majority of the population is traditionally Muslim or there are sufficiently large Muslim communities, none of them regard kafala established abroad as adoption. In cases where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption.",
"22. In the domestic law of the States examined by the Court, the choice-of-law rules in matters of adoption tend to vary. They can be divided into four groups: (a) States giving preference to the forum State (where the adoption takes place); (b) States giving preference to the adoptee’s national law; (c) States giving preference to the adopter’s national law; (d) States taking a cumulative approach (requiring that the conditions of both the adoptee’s and the adopter’s national laws be satisfied). In nine States (Belgium, Denmark, Finland, Greece, Ireland, the Netherlands, the United Kingdom, Sweden and Switzerland), the adoptee’s national law does not constitute, whether in theory or in practice, an obstacle to adoption. However, in some of these States (Finland, Switzerland, Denmark, Sweden, Belgium), the domestic legislation or practice show a certain reticence towards the adoption of children from countries prohibiting adoption – for example, by imposing additional conditions in such cases. In Belgium a specific provision was thus inserted in the Code of Private International Law in December 2005, referring to “cases where the applicable law in the child’s State of origin recognises neither adoption, nor placement with a view to adoption”. The removal of a child to Belgium with a view to adoption and the adoption itself are not prohibited, but are subject to a strict procedure, requiring in particular a report to be sent by the child’s State of origin to the Belgian authorities, proof of consent if the child has reached the age of twelve, and an agreement between the authorities of both States (State of origin and Belgium) to entrust the child to its adoptive parents.",
"B. French law",
"23. Law no. 2001-111 of 6 February 2001 inserted new provisions in the Civil Code concerning intercountry adoption, including the new Article 370 ‑ 3 in Chapter III (Choice-of-law rule concerning the legal parent-child relationship established by adoption and the effect in France of adoptions granted abroad) in Title VIII on legal parent-child relationships by adoption. The Article reads as follows:",
"Article 370-3 (inserted by the Law of 6 February 2001)",
"“The requirements for adoption are governed by the national law of the adopter or, in case of adoption by two spouses, by the law which governs the effects of their marital relationship. Adoption, however, may not be granted where it is prohibited by the national laws of both spouses.",
"Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France ...”",
"24. Law no. 2003-1119 of 26 November 2003 on immigration control, foreign residents in France and nationality amended Article 21-12 of the Civil Code, concerning acquisition of French nationality by declaration. It now reads as follows:",
"Article 21-12",
"“A child who was the subject of a simple adoption by a person of French nationality may, until the age of majority, declare, in the manner provided for in Articles 26 et seq. hereof, that he opts for the status of French national, provided he resides in France at the time of his declaration.",
"However, the obligation of residence is dispensed with where the child was adopted by a French national who does not have his habitual residence in France.",
"The following may also opt for French nationality under the same conditions:",
"1 o A child who, for at least five years, has been in foster care in France and brought up by a French national or who, for at least three years, has been entrusted to the child welfare service.",
"2 o A child in foster care in France and brought up in conditions that have allowed him to receive, for at least five years, a French education, from either a public body, or a private body satisfying the characteristics determined by a decree issued after consultation of the Conseil d’Etat .”",
"25. Decree no 93-1362 of 30 December 1993 pertaining to declarations of nationality, and to decisions of naturalisation, redintegration, and of loss, forfeiture and withdrawal of French nationality (amended by decree no. 2010-527 of 20 May 2010) reads as follows:",
"Article 16",
"“In order to make the declaration provided for in Article 21-12 of the Civil Code, the applicant shall provide the following documents:",
"...",
"(4) Where the applicant is a child who has been fostered in France and raised by a French national, the certificate of French nationality, civil registration certificates, any documents emanating from the French authorities that show the said foster parent has French nationality and any document proving that the child was placed in foster care in France and has been raised by that person for at least five years; ...”",
"26. Before the Law of 6 February 2001, the ordinary courts and the Court of Cassation had adopted a flexible position, allowing the conversion of kafala into adoption subject to the consent of the minor’s representative “having regard to the effects attached by French law to adoption and, in particular, in the case of full adoption, to the complete and irrevocable nature of the severance of the relationship between the minor and his blood relatives or the guardianship authorities of his country of origin” (Court of Cassation, First Civil Division, 10 May 1995, no. 93-17634). Following the enactment of the law, the Court of Cassation changed its position, quashing the judgments of courts of appeal which had granted simple adoption in respect of Moroccan and Algerian children in the kafala care of French couples (Court of Cassation, First Civil Division, 10 October 2006, no. 06-15264 and no. 06-15265). That solution has remained constant since then (see, for example, Court of Cassation, First Civil Division, 9 July 2008, no. 07-20279; Court of Cassation, First Civil Division, 28 January 2009, no. 08 ‑ 10034; and more recently, Court of Cassation, First Civil Division, 15 December 2010, no. 09 ‑ 10439).",
"27. In reports of 2004 and 2005, and in an opinion of 2007, the Children’s Advocate and the High Council for Adoption drew attention to the administrative difficulties encountered for the fostered child (access to visas, welfare rights) as a result of the lack of a legal parent-child relationship with the foster parent and to the difficulties of acquiring nationality. The report on adoption by J.-M. Colombani, deposited on 19 March 2008, noted that any evolution of the legal aspects of the situation appeared difficult and proposed cooperation with the two main countries concerned (Algeria and Morocco) especially with a view to adapting the conditions for the granting of a visa on a family reunification basis. The report explained that the Franco-Algerian Agreement of 27 December 1968 enabled children in kafala care to benefit from a family reunification measure in France provided that the other conditions for such a measure were met (income, housing). In 2010 the French Ombudsman called on the legislature to reconsider the question of kafala, advocated that children placed by judicial decision in kafala care should, at a minimum, be eligible for simple adoption and requested the abolition “of the five-year period of residence required by Article 21-12 of the Civil Code for French nationality to be sought by children placed by judicial decision in kafala care and raised by a French national, the possession of nationality being the only means for such children to become adoptable”. Lastly, two private member’s Bills, one on the adoption of children lawfully placed in kafala care, tabled by Senator A. Milon on 10 March 2011, the other on abandoned children and adoption tabled by Member of Parliament M. Tabarot on 8 February 2012, have been registered with the Presidency of the National Assembly and with that of the Senate. The aim of the Bills is for placement in kafala care by judicial decision or non-judicial decision (the Milon Bill) to be equated with simple adoption.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"28. The applicant complained about her inability to adopt a child of Algerian nationality, Hind, who had been placed in her kafala care. She argued that the refusal to recognise a legal parent-child relationship between her and Hind, whom she regarded as her own daughter, constituted a disproportionate interference with her family life. The relevant Convention provision reads as follows:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"29. The Government raised the objection that domestic remedies had not been exhausted. In their submission, the applicant could not complain of her inability to adopt Hind since she had not sought to obtain French nationality for the child, under Article 21-12 of the Civil Code. They stipulated that she could have made such a request from 1 February 2009 as the child had been in her care since 1 February 2004.",
"30. The applicant disputed that objection, taking the view that the argument was ineffective in the light of the Court’s case-law.",
"31. The Court observes that the alleged interference with the applicant’s family life concerns her inability to adopt a child, with all the ensuing consequences, including the deprivation of a means of immediate acquisition of French nationality. The Court finds that this objection is closely connected to the merits of the applicant’s complaint. Moreover, the Government raised part of the relevant arguments in their submissions on the merits. Consequently, the Court decides to join this objection to the merits.",
"32. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"33. The applicant submitted that her inability to adopt Hind constituted an interference with her family life. She asserted that, even though she had been able, by judicial decision, to give the child her surname, her inability to obtain recognition of a legal parent-child relationship was incompatible with Article 8 of the Convention. She pointed out that Hind was born in Algeria but that she had no family ties in that country since her biological parents remained unknown. Having arrived in France at the age of three months, and having been brought up in that country, the girl had also developed all her cultural, social and emotional associations there.",
"34. In the applicant’s submission, the fact that the domestic authorities did not recognise the legal parent-child relationship between her and her child constituted an interference with her right to respect for her family life. She explained, first, that in the event of her death, this non-recognition would preclude Hind from living with Mrs A., the applicant’s mother, whom the girl regarded as her grandmother. She added that the girl would be excluded from any right to inherit on intestacy. Lastly, she acknowledged that it was possible for the child to apply for French nationality, but only after five years of residence in France.",
"In her view, this interference did not pursue any legitimate aim and the child’s interest, on account of its fundamental nature, prevailed over the State’s interest in maintaining good diplomatic relations with countries prohibiting adoption. She alleged in this connection that it did not appear from the developments in Belgian and Swiss legislation, which permitted the adoption of a child in kafala care, that there had been any diplomatic tensions vis-à-vis Islamic-law jurisdictions.",
"35. The Government began by arguing that the refusal to grant the adoption did not constitute an interference with the applicant’s “family life” – the existence of which nevertheless had to be admitted in view of the age at which the child had been placed in her care and the fact that they had lived together continuously – on the ground that it did not hinder the effective continuance of that “family life”. The applicant had been granted rights in respect of the child which enabled her to act in the child’s best interests in a family context, including the right to take care of the child and represent her in civil acts or before the courts (they referred to Article 390 of the Civil Code, on the effect of guardianship under French law).",
"36. In addition to the fact that the applicant had not been deprived of the possibility of having an effective family life, the Government denied having failed to fulfil their positive obligations inherent in respect for such family life. Whilst the denial of adoption prevented the creation of a legal parent-child relationship, that decision was consonant with the child’s best interests and with the need to balance competing interests.",
"37. The Government pointed out that the Convention did not guarantee a right to adopt and that adoption had to take account of the child’s best interests: adoption meant “providing a child with a family, not a family with a child” (they referred to Fretté v. France, no. 36515/97, § 42, ECHR 2002 ‑ I, and Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 151, ECHR 2004 ‑ V). The Government indicated that it would not be in the child’s interest to be granted a status of adoptee that was not recognised under the child’s personal law in his or her country of origin and that would give rise to choice-of-law issues. They further observed that, under the New York Convention on the rights of the child, kafala was recognised as one of the arrangements for the care of children abandoned by their family, in accordance with the interests of the child concerned. In addition, although the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption was not applicable in the present case, it would be difficult for France, a party to that treaty, not to have regard at least to the spirit thereof: that convention required parties to verify that the child was adoptable under the law of his or her country of nationality.",
"38. The Government lastly referred to the possibilities for a child in kafala care to obtain the status of adoptee, pointing out that the prohibition of adoption in such cases was not absolute. Article 370-3 of the Civil Code permitted the adoption of a minor whose personal law prohibited adoption if the child was born and resided habitually in France. This exception was justified by the fact that the child would automatically become French upon reaching the age of majority, under Article 21-7 of the Civil Code. Moreover, pursuant to Article 21-12 of the Civil Code, a child in foster care and raised for at least five years by a French national was entitled to apply for French nationality. The Government observed that the applicant had not taken any steps with a view to obtaining French nationality for the child placed in her care. Lastly, the Government emphasised that Article 370-3, paragraph 2, of the Civil Code, which referred only to minors, did not prevent the adoption of a child upon his or her majority.",
"39. On a very alternative basis, and if the Court were to take the view that there had been an interference with the applicant’s family life, the Government, in addition to their previous arguments concerning positive obligations, considered it to be proportionate. The entitlement to French nationality after five years of residence in France made adoption possible, to the extent that it could be seen after that period of time that adoption would not run counter to the interests of the child, having regard to the child’s integration in the society which recognised adoption and in which he or she would clearly be continuing to live.",
"2. The Court’s assessment",
"(a) Applicable principles",
"40. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Pini and Others, cited above, § 149).",
"41. The Court further reiterates that the Convention and its Protocols must be interpreted in the light of present-day conditions (see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Moretti and Benedetti v. Italy, no. 16318/07, § 61, 27 April 2010). In this context, as the Court has previously found, the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt (see E.B. v. France [GC], no. 43546/02, 22 January 2008). This does not, however, rule out the possibility that States parties to the Convention may nevertheless have, in certain circumstances, a positive obligation to enable the formation and development of family ties (see, to this effect, Keegan, cited above, § 50, and Pini and Others, cited above, §§ 150 et seq.). According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and establish legal safeguards that render possible the child’s integration in his family (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 119, 28 June 2007).",
"42. The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights. As regards, more specifically, the positive obligations that Article 8 lays on the Contracting States in this matter, they must be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 (ibid., § 120).",
"43. Whether the question is approached from the aspect of a positive obligation of the State – to adopt reasonable and appropriate measures to protect the rights of the individual under paragraph 1 of Article 8 – or from that of a negative obligation – an “interference by a public authority”, which must be justified under paragraph 2 –, the principles to be applied are quite similar.",
"44. The Contracting States will usually enjoy a wide margin of appreciation if the public authorities are required to strike a balance between competing private and public interests or Convention rights. This applies all the more where there is no consensus within the member States of the Council of Europe as to the relative importance of the interest at stake or as to the best means of protecting it (see Evans v. the United Kingdom [GC], no. 6339/05, §§ 77-81, ECHR 2007 ‑ I, and Shavdarov v. Bulgaria, no. 3465/03, §§ 46-48, 21 December 2010).",
"45. The Court further reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002 ‑ VI).",
"(b) Application to the present case",
"46. The Court first observes that the Government did not dispute the existence of family life between the applicant and Hind, in view of the child’s age at the time of her placement in care and the fact that they had been living together continuously (see paragraph 35 above).",
"47. The Government denied, however, that the inability to adopt Hind constituted an “interference” with the applicant’s family life. The Court shares that view. It observes in this connection that the applicant did not complain of any major hindrance to the continuance of her family life but argued that to ensure respect for the latter it was necessary to equate kafala with full adoption and thus to recognise a legal parent-child relationship, this being excluded by Article 370-3 of the Civil Code where the child’s country of origin prohibited adoption. In those circumstances, the Court finds it more appropriate to examine the complaint in terms of positive obligations. In this connection, the Court would draw a distinction between, on the one hand, the situation in the present case, where the law of the respondent State merely refuses to equate kafala with adoption and refers to the child’s personal law to determine whether such adoption is possible, and, on the other, the situation in the Wagner and J.M.W.L. judgment (cited above), where it decided that the Luxembourg courts, in refusing to grant enforcement of an adoption decision by a Peruvian court, had disregarded the legal status validly created abroad, in an unreasonable manner, and had thus breached Article 8 of the Convention. The Court reiterates that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002 ‑ VI).",
"48. As to the margin of appreciation afforded to the State, the Court first observes that it can be seen from the comparative-law study that no State equates kafala with adoption but that, in French law and in other jurisdictions, it produces effects that are comparable to those of guardianship, curatorship or placement with a view to adoption. Furthermore, the information gathered as to whether prohibition by a child’s national law constitutes an obstacle to adoption has revealed varied and nuanced situations in the legislation of the different States. There is no clear measure of common ground between the member States (see paragraphs 21 and 22 above). Consequently, the margin of appreciation afforded to the French authorities should be regarded as broad.",
"49. In rejecting Hind’s adoption in the present case, the domestic courts relied on Article 370-3, paragraph 2, of the Civil Code, which precludes a foreign child’s adoption where it is illegal under the child’s personal law.",
"They also referred to the New York Convention on the rights of the child, Article 20 of which expressly recognises kafala of Islamic law as a form of “alternative care”, on a par with adoption. The Court notes that the same Article mentions, among the criteria influencing the choice of the most suitable form of protection for a child, his or her ethnic, religious, cultural and linguistic background. It further observes that Article 21 of the same convention, specifically concerning adoption, indicates that “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration” (see paragraph 18 above).",
"The Court of Cassation has, moreover, observed that Article 370-3 of the Civil Code is consistent with the Hague Convention of 29 May 1993, with its concern to prevent “the abduction, the sale of, or traffic in children”, even if that convention concerns only adoptions “which create a permanent parent-child relationship” (Article 2 § 2), and has emphasised that such adoptions can take place only if the competent authorities of the State of origin have established that the child is adoptable (Article 4 (a); see paragraph 19 above).",
"Lastly, kafala falls expressly within the scope of the Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (see paragraph 20 above).",
"50. It transpires from the foregoing that the applicant met with a refusal largely on account of a concern to abide by the spirit and purpose of international conventions. The Court is of the view that the recognition of kafala by international law is a decisive factor in assessing how States deal with it in their national laws and envisage any choice-of-law issues that may arise.",
"51. Furthermore, the Court notes that the judicial grant of kafala is fully recognised by the respondent State and that it produces effects in that country that are comparable in the present case to those of guardianship, since the child, Hind, had no known parentage when she was placed in care. In that connection, the domestic courts emphasised the fact that the applicant and the child had the same surname, as a result of the relevant legal procedure, and that the applicant exercised parental authority, entitling her to take any decision in the child’s interest. Admittedly, as kafala does not create any legal parent-child relationship, it has no effects for inheritance and does not suffice to enable the child to acquire the foster parent’s nationality. That being said, there are means of circumventing the restrictions that stem from the inability to adopt a child. In addition to the name-change procedure, to which the child was entitled in the present case on account of her unknown parentage in Algeria, it is also possible to draw up a will with the effect of allowing the child to inherit from the applicant and to appoint a legal guardian in the event of the foster parent’s death.",
"The various points examined above show that the respondent State, applying the international conventions that govern such matters, has put in place a flexible arrangement to accommodate the law of the child’s State of origin and the national law. The Court notes that the prohibition of adoption stems from the choice-of-law rule in Article 370-3 of the Civil Code but that French law provides the means to alleviate the effects of that prohibition, based on the objective signs of a child’s integration into French society. Firstly, the choice-of-law rule is expressly set aside by the same Article 370-3 in cases where “the minor was born and habitually resides in France”. Secondly, this choice-of-law rule is deliberately circumvented by the possibility for the child to obtain French nationality, within a reduced period of time, and thus to be adopted, when he or she has been in the care of a French national. The Court observes in this connection that the respondent State argued, without being contradicted, that Hind could already benefit from such a possibility.",
"The Court takes the view that by gradually obviating the prohibition of adoption in this manner, the respondent State, which seeks to encourage the integration of children of foreign origin without cutting them off immediately from the rules of their country of origin, has shown respect for cultural pluralism and has struck a fair balance between the public interest and that of the applicant.",
"52. In those circumstances, and after dismissing the Government’s objection as to non-exhaustion of domestic remedies, which do not encompass the acquisition of French nationality, the Court finds, having regard to the State’s margin of appreciation in such matters, that there has been no breach of the applicant’s right to respect for her family life. Accordingly, there has been no violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION TAKEN TOGETHER",
"53. The applicant alleged that, by referring to the child’s personal law, which did not permit adoption, the provisions of the French Civil Code created unjustified discrimination on grounds of national origin. She relied on Article 14 of the Convention, of which the relevant part reads as follows:",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national ... origin ...”",
"54. The Government submitted that the alleged difference in treatment stemmed from an objective factor related to the child’s personal law and in accordance with the child’s best interests and that it was proportionate to the aim pursued.",
"55. In the Court’s view, the gravamen of the applicant’s complaint under Article 14 of the Convention is her inability to adopt Hind on account of the child’s personal law. That issue has been examined under Article 8 and no violation thereof has been found. In those circumstances, the Court considers that no separate issue arises under Article 14 of the Convention and makes no separate finding."
] |
62 | X and Others v. Austria | 19 February 2013 (Grand Chamber) | This case concerned the complaint by two women who live in a stable homosexual relationship about the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child (second-parent adoption). The applicants submitted that there was no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples were concerned, be they married or unmarried, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention on account of the difference in treatment of the applicants in comparison with unmarried different-sex couples in which one partner wished to adopt the other partner’s child. It further held that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child. The Court found in particular that the difference in treatment between the applicants and an unmarried heterosexual couple in which one partner sought to adopt the other partner’s child had been based on the first and third applicants’ sexual orientation. No convincing reasons had been advanced to show that such difference in treatment was necessary for the protection of the family or for the protection of the interests of the child. At the same time, the Court underlined that the Convention did not oblige States to extend the right to second-parent adoption to unmarried couples. Furthermore, the case was to be distinguished from the case Gas and Dubois v. France (see above), in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second-parent adoption was not open to any unmarried couple, be they homosexual or heterosexual. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The first and third applicants were born in 1967 and the second applicant was born in 1995.",
"10. The first applicant and the third applicant are two women living in a stable relationship. The second applicant is the third applicant’s son and was born outside marriage. His father has recognised paternity and his mother has sole custody of him. The applicants have been living in the same household since the second applicant was about five years old and the first and third applicants care for him jointly.",
"11. On 17 February 2005 the first applicant and the second applicant, represented by his mother, concluded an agreement whereby the second applicant would be adopted by the first applicant. The applicants’ intention was to create a legal relationship between the first and second applicants corresponding to the bond between them, without severing the relationship with the child’s mother, the third applicant.",
"12. The applicants, aware that the wording of Article 182 § 2 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) could be understood to exclude the adoption of the child of one partner in a same-sex couple by the other partner without the relationship with the biological parent being severed, requested the Constitutional Court to declare that provision unconstitutional as discriminating against them on account of their sexual orientation. In the case of heterosexual couples, Article 182 § 2 of the Civil Code allowed for second-parent adoption, that is to say, the adoption by one partner of the child of the other partner, without the latter’s legal relationship with the child being affected.",
"13. On 14 June 2005 the Constitutional Court rejected the request as inadmissible under Article 140 of the Federal Constitution. It noted that the competent District Court, in deciding whether to approve the adoption agreement, would have to examine the question whether or not Article 182 § 2 of the Civil Code allowed second-parent adoption in the case of a same-sex couple. Should the District Court refuse to approve the adoption agreement, the applicants remained free to submit their arguments regarding the alleged unconstitutionality of that provision to the appellate courts, which in turn could bring the issue before the Constitutional Court if they shared the applicants’ view.",
"14. Subsequently, on 26 September 2005, the applicants requested the District Court to approve the adoption agreement, to the effect that both the first and the third applicants would be the second applicant’s parents. In their submissions they explained that the first and second applicants had developed close emotional ties and that the second applicant benefited from living in a household with two caring adults. Their aim was to obtain legal recognition of their de facto family unit. The first applicant would thus replace the second applicant’s father. They noted that the second applicant’s father had not consented to the adoption, without giving any reasons for his position. Furthermore, they alleged that he had displayed the utmost antagonism towards the family and that the court should therefore override his refusal to consent under Article 181 § 3 of the Civil Code, as the adoption was in the best interests of the second applicant. In support of their submissions, the applicants attached a report from the Youth Welfare Office which confirmed that the first and third applicants shared the day-to-day tasks involved in caring for the second applicant and the overall responsibility for his upbringing, and which concluded, while expressing doubts as to the legal position, that the award of joint custody would be desirable.",
"15. On 10 October 2005 the District Court refused to approve the adoption agreement, holding that Article 182 § 2 of the Civil Code did not provide for any form of adoption producing the effect desired by the applicants. Its reasoning reads as follows:",
"“Ms ..., the third applicant, has sole custody of her minor son ..., who was born outside marriage. [She] shares a home in ... with her partner ... (the first applicant) and with ... (the second applicant).",
"An application to the courts made jointly on 12 October 2001 by the child’s mother and her partner for partial transfer of custody of [the child] to the mother’s partner, so that the two women could exercise joint custody, was dismissed with final effect.",
"Under the terms of the adoption agreement of 17 February 2005 for which approval is now sought, the first applicant, as the partner of [the child’s] mother, agreed to adopt the child.",
"The applicants seek court approval of the adoption such that the relationship with the biological father and his relatives under family law would cease to exist while the relationship with the biological mother would remain fully intact. They request the courts to override the refusal of consent by the child’s father.",
"The application, which is aimed de facto at securing joint custody for the biological mother and the adoptive mother – who lives in a same-sex relationship with her – fails on legal grounds.",
"Article 179 of the Civil Code provides for adoption either by one person or by a married couple. Only under certain strict conditions may a married person adopt a child on his or her own. Under the second sentence of Article 182 § 2 of the Civil Code, the legal relationship in family law – above and beyond the legal kinship itself – ceases only in respect of the biological father (the biological mother) and his (her) relatives, if the child is adopted only by a man (or a woman). In so far as the relationship with the other parent remains intact subsequently (that is, after the adoption), the court declares it to have been severed in respect of the parent concerned, subject to his or her consent.",
"Article 182 of the Civil Code was last amended in 1960 (Federal Gazette 58/1960). On the basis of the unambiguous wording of this provision and the undoubted intentions of the legislature at that time it must be assumed that, in the event of adoption by one person, the legal relationship with the biological parent of the same sex as the adoptive parent ceases to exist, while the relationship with the parent of the opposite sex remains intact (see also Schlemmer in Schwimann, ABGB ... I § 182, point 3). Only in this scenario does the law allow the courts to declare the latter relationship – which is unaffected by the adoption per se – to have been severed.",
"The arrangement sought by the applicants, whereby [the child] would be adopted by a woman and the relationship with his biological father, but not with his biological mother, would cease, is therefore incompatible with the law. In the court’s view, the interpretation of this legislative provision in conformity with the Constitution – which, needless to say, is required – does nothing to alter this finding.",
"It is correct to state that, according to the settled case-law of the European Court of Human Rights, issues concerning sexual orientation fall within the scope of protection of the right to private and family life (Article 8 [of the Convention]). It is also true that, according to the Court’s case-law, discrimination on the basis of sexual orientation is fundamentally incompatible with Articles 8 and 14 of the Convention. It should be noted, however, that the European Court has also consistently ruled that the Council of Europe member States are to be allowed a margin of appreciation in this regard, which is correspondingly broader the less common ground there is amongst member States’ legal orders. In paragraph 41 of its judgment in Fretté v. France (no. 36515/97, ECHR 2002-I), the European Court expressly stated that, in the sphere of the right of homosexuals to adopt, member States had to be afforded a wide margin of appreciation as the issues concerned were subject to societal change and in a state of transition; however, this margin of appreciation was not to be interpreted as giving States carte blanche to exercise arbitrary power.",
"The issue whether a member State provides the possibility for two persons of the same sex to establish a legal relationship with a child on an equal footing is therefore a matter for the State itself to decide, subject to the limits laid down in Article 8 § 2 of the Convention. In the view of this court no such possibility exists under Austrian law as it currently stands, even when the law is interpreted, as it is required to be, in conformity with the Constitution. The arrangement sought by the applicants would require an amendment to the legislation; it could not be authorised by means of an ordinary court decision interpreting Article 182 of the Civil Code in a manner running counter to the unambiguous wording of that provision.",
"For these reasons the court dismisses the application for approval of the adoption agreement.”",
"16. The applicants appealed. Referring to Articles 8 and 14 of the Convention, they argued that Article 182 § 2 of the Civil Code was discriminatory in that it led to an unjustified distinction between different-sex and same-sex couples. So-called second-parent adoption was possible for married or unmarried heterosexual couples but not for same-sex couples. The present case had to be distinguished from Fretté, cited above, which had dealt with adoption by a single homosexual. By contrast, the present case concerned a difference in treatment between different-sex and same-sex couples.",
"17. Having regard to the Court’s judgment in Karner v. Austria (no. 40016/98, ECHR 2003 ‑ IX), the difference in treatment between unmarried heterosexual couples and same-sex couples was particularly problematic. Only a few European States allowed second-parent adoption in same-sex couples; the majority of States reserved second-parent adoption to married couples, and there was a consensus that unmarried different-sex couples and same-sex couples should not be treated differently. The difference complained of did not serve a legitimate aim: in particular, it was not necessary in order to protect the child’s interests. There was research to show that children developed just as well in families with homosexual parents as in families with heterosexual parents. What was important was not the parents’ sexual orientation but their ability to provide a stable and caring family. The applicants requested the appellate court to quash the District Court’s decision and to grant their request of 26 September 2005 or, alternatively, to refer the case back to the District Court for a fresh decision.",
"18. The Regional Court, without holding a hearing, dismissed the applicants’ appeal on 21 February 2006. In its decision it described a number of related sets of proceedings (concerning visiting rights for the second applicant’s father as well as his maintenance obligations, and the proceedings in which the first and third applicants had tried unsuccessfully to obtain joint custody of the second applicant). The Regional Court observed that it had doubts as to whether the third applicant could represent her son in the proceedings, as there was a potential conflict of interests. It went on to state as follows:",
"“Further examination of this issue is, however, objectively unnecessary, as, in the view of this court – as set out below – approval of the adoption agreement should in any event be refused in this case without the need for further investigation, and was indeed refused by the first-instance court, with the result that the effective representation of the child in the proceedings is not at issue.",
"As far back as the decision on the application for a partial transfer of custody of [the child] to [the mother’s partner], the courts reviewing the case observed that, while Austrian family law contained no legal definition of the term ‘parents’, it was nevertheless abundantly clear from the provisions of Austrian family law as a whole that the legislature intended that a parental couple should consist, as a matter of principle, of two persons of opposite sex. The legislation therefore provided first and foremost for the biological parents to have custody, or the biological mother in the case of a child born outside marriage. Only where this was not possible did the law provide for other persons to be awarded custody of a child. If the biological parents (father and mother) were present, it was unnecessary to award custody to another person, even if, from a purely factual viewpoint, that person had a close relationship with the child (compare OGH, 7 Ob 144/02 f). The courts stressed that no discrimination against persons in same-sex partnerships could be inferred from this legal stance, but that the provisions of family law were based, in line with the biological reality, on the presence of a couple made up of parents of opposite gender.",
"In this court’s view, these considerations also apply to the issue under examination here, namely the approval of the adoption of a minor child by the same-sex partner of one of the child’s parents. Here also, it is unnecessary to create an additional ‘legal parent’ where both the child’s opposite-sex parents are present. The aim is in no sense to discriminate against the same-sex partnership of the child’s mother; however, where both the opposite-sex parents are present, there is simply no need for a provision enabling one of the parents to be replaced by the same-sex partner of the other.",
"The adoption of a minor child is fundamentally designed to create a relationship akin to that which exists between biological parents and their children. The file in the present case shows that the biological father has regular contact with his child, with the result that the child maintains a meaningful relationship with both his opposite-sex parents. In these circumstances, however, there is no need to replace either of the biological parents with the same-sex partner of the other parent by authorising the child’s adoption.",
"The case-law concerning contact rights for parents also generally and indisputably recognises that, according to the available psychological and sociological findings, it is of particular importance for the child’s subsequent development that adequate personal contact be maintained with the parent with whom he or she is not living (see, inter alia, EFSlg 100.205). Accordingly, the legislation goes so far as to confer a right on the child to have personal contact with the parent not living in the same household (see, inter alia, OGH, 3 Ob 254/03 z). It is likewise beyond dispute that, for a minor child to thrive, it is highly desirable that he or she should have a personal relationship with both – opposite-sex – parents, in other words, with both a female (mother) and a male (father) caregiver, and that efforts should be made to that end (compare, inter alia, EFSlg 89.668). At least a minimum degree of personal contact between the child and both parents is therefore greatly to be desired and is generally made a requirement in the interests of the child’s healthy development (compare OGH, 7 Ob 234/99 h). These considerations also clearly militate against authorising the adoption of a child by the same-sex partner of one of the parents if that has the effect of severing the family-law relationship with the other parent.",
"As stated above, this legal position in no sense amounts to discrimination against people in same-sex partnerships. On this point the first-instance court, in the reasoning of the impugned decision, correctly pointed to the settled case-law of the European Court of Human Rights, according to which sexual orientation falls within the scope of protection of private and family life (Article 8 of the Convention), with the result that discrimination on the basis of sexual orientation is fundamentally incompatible with Articles 8 and 14 of the Convention. However, the first-instance court also correctly pointed out that national legal systems must be afforded a margin of appreciation in enacting legislation, a margin which is correspondingly broader where there is no clear consensus between member States’ legal systems in the sphere in question. While noting that the margin of appreciation must not be interpreted as giving States carte blanche to make arbitrary decisions, the first-instance court observed that it must be construed very generously in the sphere of the right of homosexuals to adopt, as these were issues which were subject to societal change. In the context of this assessment, the Austrian legal system made no provision for the adoption of a child by the same-sex partner of one of the parents.",
"The appellants have adduced no convincing arguments to indicate that the provisions in force amount to discrimination against same-sex partners. Even in the case of heterosexual couples, the only legal relationship that may be severed when a partner’s child is adopted is the relationship between the child and the parent of the same sex as the adoptive parent. In such cases the child therefore continues to have two opposite-sex parents and caregivers. This state of affairs, which is important for the child’s development, does not however apply in the event of his or her adoption by the same-sex partner of one of the parents; there is therefore no evidence of an unjustified difference in treatment in this regard. Furthermore, in the judgment of the European Court of Human Rights cited by the appellants (see Karner v. Austria, [cited above]), the Court reiterated that a difference in treatment of people living in a same-sex relationship was to be considered discriminatory only if it had no objective and reasonable justification, that is if it did not pursue a legitimate aim, or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Court would thus regard a difference in treatment as compatible with the Convention only where very weighty reasons had been put forward. Particularly compelling reasons therefore had to be advanced to justify any difference in treatment based on sexual orientation. However, the Court also explicitly acknowledged in this regard that protection of the ‘traditional family’ was, in principle, a weighty and legitimate reason which might justify a difference in treatment by the national legislature. At the same time, it found that the aim of protecting the family in the traditional sense was rather abstract and that a broad variety of concrete measures could be used to implement it. Compelling reasons had to be given for excluding people living in homosexual relationships from the scope of application of certain legal provisions. In the case in question, which concerned the right of a deceased person’s same-sex partner to succeed to a tenancy, the Court found that no such reasons had been given.",
"Nevertheless, the judgment in question does not lend any support to the appellants’ arguments in the present case. On the basis of the right – recognised by the Court – to include measures in the national legal system to protect the ‘traditional family’, the stance taken in the Austrian legal system whereby, as a matter of principle and in accordance with biological reality, a minor child should have an opposite-sex couple as parents, has to be respected. Hence, in the view of this court, the decision by the legislature not to provide for a child to be adopted by the same-sex partner of one of the parents, with the result that the relationship with the opposite-sex parent is severed, unquestionably pursues a ‘legitimate aim’. Likewise, it cannot be said that ‘no reasonable relationship of proportionality’ exists between this aim and the means employed. This legal situation is not based – contrary to the appellants’ assertions – on ‘the prejudice of the heterosexual majority towards the homosexual minority’, but is merely designed to ensure that minor children have regular contact with both a female and a male parent while they are growing up. This aim must be respected in just the same way as the decision of the child’s mother to live in a same-sex partnership. Thus, there is no apparent justification for depriving the child of his family-law relationship with his parent of the other sex. However, that is precisely what the child’s mother and her partner sought in the present case and have continued to seek since the lodging of the appeal.",
"Accordingly, in view of these overall considerations, the present appeal should be dismissed.",
"The ruling on the admissibility of an appeal on points of law is based on sections 59(1)(2) and 62(1) of the Non-contentious Proceedings Act. While it is true that the Supreme Court already issued one decision in the instant case, that decision concerned the lawfulness of the (partial) transfer of custody of the child to the mother’s same-sex partner. As regards the issue now to be determined, however, namely whether the adoption of a child by the same-sex partner of one of the parents is lawful, no specific and express Supreme Court rulings exist on the subject to date, to the best of this court’s knowledge. For that reason the present decision is of considerable importance in terms of the unity of the law, legal certainty and development of the law.”",
"19. The applicants lodged an appeal on points of law with the Supreme Court. They submitted that Article 182 § 2 of the Civil Code as applied by the courts led to a difference in treatment between different-sex and same-sex couples in cases where one partner wished to adopt the other partner’s biological child. While heterosexual couples (including unmarried ones) could establish an additional parent-child relationship between the child and its parent’s partner, this was impossible for same-sex couples, as the same-sex partner would replace the biological parent. Thus, any meaningful kind of second-parent adoption was excluded. The Regional Court had sought to justify this difference in treatment by referring to the aims of protecting the family in the traditional sense and allowing the child to grow up with both a male and a female caregiver. However, the Regional Court had not shown that the exclusion of same-sex families from second-parent adoption was necessary to achieve that aim. Recent studies showed that same-sex couples were just as capable of raising children as different-sex couples. Moreover, the present case did not concern the question whether the second applicant should or should not grow up in a same-sex family. He was already part of a de facto same-sex family. The question therefore was whether it was justified to deny legal recognition to the relationship between him and the first applicant. It had not been shown to be necessary to distinguish between unmarried heterosexual and same-sex couples. Finally, the applicants maintained that in many European States second-parent adoption was reserved to married couples. They asserted that where a State chose, as Austria had, to allow second-parent adoption in unmarried couples, it was not free to make a distinction on the basis of sexual orientation.",
"20. On 27 September 2006 the Supreme Court dismissed the appeal on points of law lodged by the applicants. It held as follows:",
"“[The minor] is the biological child of the third applicant, Ms ..., and of Mr ..., born on ... The child’s mother has sole custody. She shares a home in ... with her partner (the first applicant) and with [the child]. The applicants applied for court approval of an adoption agreement entered into on 17 February 2005 by the first applicant and the minor child, represented by his mother, under the terms of which the first applicant agreed to adopt the child. However, the agreement provided for the first applicant to take the place not of the child’s mother but of his biological father. The applicants sought court approval of the adoption such that the relationship with the biological father and his relatives under family law would cease to exist while the relationship with the child’s biological mother would remain fully intact. They requested the courts to override the refusal of consent by the child’s father.",
"The first-instance court refused the application, taking the view that Article 182 of the Civil Code reflected the legislature’s clear intention that, in the case of adoption by one person, the legal relationship with the parent of the same sex as the adoptive parent should cease to exist and the relationship with the opposite-sex parent should be preserved. Only in this scenario, according to the first-instance court, did the law allow the courts to also declare the latter relationship, which was not affected by the adoption per se, to have been severed. In the view of the first-instance court, the arrangement sought by the applicants, whereby [the child] would be adopted by a woman and the legal relationship with his biological father but not with his biological mother would cease, was incompatible with the law. This interpretation was in conformity with the Constitution and in particular with Articles 8 and 14 of the European Convention on Human Rights. According to the case-law of the European Court of Human Rights, member States had a particularly wide margin of appreciation in the sphere of adoption by homosexuals, as these issues were subject to societal change and were in a state of transition. The question whether a member State provided the possibility for two persons of the same sex to create a legal relationship with a child on an equal footing was therefore a matter for the State itself to decide, subject to the limits laid down in Article 8 § 2 of the Convention. The arrangement sought by the applicants was not possible under Austrian law.",
"The appellate court upheld the decision of the first-instance court, taking the view that the law was clearly based on the premise that the term ‘parents’ necessarily referred to two persons of opposite sex. This was reflected in the law on custody, which as a matter of principle gave priority to the biological parents over other persons. The same considerations applied in the sphere of adoption law. Here too the legislative provisions were based, in line with the biological reality, on the presence of a couple made up of parents of opposite gender. Where both the opposite-sex parents were present, there was no need for a provision enabling one of the parents to be replaced by the same-sex partner of the other; this did not reflect any wish to discriminate against same-sex partners. In the sphere of contact rights it was also recognised beyond dispute that, for a minor child to thrive, it was highly desirable that he or she should have a personal relationship with both – opposite-sex – parents, in other words with both a female (mother) and a male (father) caregiver. At least a minimum degree of personal contact between the child and both (biological) parents was to be desired and was generally made a requirement in the interests of the child’s healthy development. These considerations too could be applied in relation to adoption. The appellate court also endorsed the first-instance court’s view that there was no discrimination against same-sex partners from the standpoint of the case-law of the European Court of Human Rights. A difference in the treatment of persons living in a same-sex relationship was to be regarded as discriminatory only if it had no objective and reasonable justification, in other words, if the rule in question did not pursue a legitimate aim or if there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Differences in treatment were found to be compatible with the Convention where weighty reasons had been put forward. The Austrian legislature pursued one such legitimate aim in seeking to ensure that children, as they were growing up, had the regular contact with both a male and a female parent which their development required. That aim was to be accorded the same respect as the mother’s decision to live in a same-sex partnership. There was no justification, however, for depriving a child of the relationship under family law with his or her parent of the other sex.",
"The appellate court ruled that leave to appeal on points of law should be granted since no case-law existed on the issue of the lawfulness of the adoption of a child by the same-sex partner of one of his or her biological parents.",
"The applicants’ appeal on points of law is admissible for the reasons given by the appellate court. It is nevertheless unfounded.",
"Article 179 § 2 of the Civil Code provides that the adoption of a child by more than one person is permissible only where the adoptive parents are a married couple. Legal commentators have concluded from this that adoption by more than one person of the same sex (whether simultaneously or consecutively) is prohibited (see Schwimann in Schwimann, Civil Code § 179, point 6, and Hopf in Koziol/Bydlinksi/Bollenberger, § 179, point 2, both cited by the Vienna Regional Civil Court, 27 August 2001 – EFSlg 96.699).",
"The second sentence of Article 182 § 2 of the Civil Code governs the effects produced in the event of adoption by one adoptive parent. If the child is adopted only by an adoptive father (an adoptive mother), the ties of kinship cease only in respect of the biological father (the biological mother) and his (her) relatives. It is quite clear from the materials (ErlBem RV 107 BlgNR IX. GP, 21) that this provision should be construed to mean that the non-proprietary legal ties are severed only with the biological parent who is being replaced by an adoptive parent of the same gender. In explicit terms, this means that the child cannot, for instance, be deprived of his or her biological father if he or she is being adopted just by a woman (see also: Schwimann in Schwimann, op. cit., § 182, sub-paragraph 3; Stabentheiner in Rummel I § 182, sub-paragraph 2).",
"Contrary to the applicants’ assertion, this provision is not to be construed extensively in the way that they argue, nor does there exist an unintended legislative gap which therefore needs to be filled by analogy. According to the materials (op. cit., 11), the chief aim of adoption is to promote the well-being of the minor child (the protective principle). Adoption should constitute an appropriate means of entrusting to suitable and responsible individuals the care and upbringing of children who have no parents, those who come from broken homes or those whose parents, for whatever reason, are unable to provide their children with a proper upbringing or may not even want their children. However, this aim can be achieved only when the adoption allows the situation in a biological family to be recreated as far as possible.",
"The case-law (6 Ob 179/05z) also makes clear that the tie between the child and the adoptive parent is to be understood as a social and psychological relationship, akin to that between biological parents and their children. The model for the child-parent relationship in the context of adoption of minors is informed by the specific social and psychological ties that exist between parents and young people approaching adulthood. In addition to the socially typical ties of physical and personal proximity (shared household, care for the child’s physical and psychological needs by its parents), these encompass emotional ties comparable to the love between parents and their children, and a specific role for the parents as mentors and role models.",
"Article 182 § 2 of the Civil Code imposes a general prohibition (that is, not just in the case of same-sex partners) on adoption by a man as long as the ties of kinship with the child’s biological father still exist, and by a woman where such ties still exist with the biological mother. Under Article 182 § 2, therefore, a person who adopts a child on his or her own does not take the place of either parent at will, but only the place of the parent of the same sex. The adoption of the child by the female partner of the biological mother is therefore not legally possible.",
"Contrary to the applicants’ view, this provision also survives the test of compatibility with the Constitution (fundamental rights perspective). In the case of Fretté [cited above], the European Court of Human Rights was called upon to examine whether the authorities’ refusal to authorise the adoption of a child by a homosexual man amounted to discrimination. In its judgment of 26 February 2002, the Court found that adoption meant ‘providing a child with a family, not a family with a child’. According to the Court, it was the State’s task to ensure that the persons chosen to adopt were those who could offer the child the most suitable home in every respect. Not least in view of the wide differences in national and international opinion concerning the possible consequences of a child being adopted by one or more homosexual parents, and bearing in mind the fact that there were not enough children to adopt to satisfy demand, States had to be allowed a broad margin of appreciation in this sphere. A refusal to authorise adoption by a homosexual would not be in breach of Article 14 of the Convention read in conjunction with Article 8 if it pursued a legitimate aim, namely the protection of the child’s best interests, and did not infringe the principle of proportionality between the means employed and the aim sought to be achieved.",
"The applicants have not demonstrated, nor is there any other evidence to suggest, that the provisions of Article 182 § 2 of the Austrian Civil Code overstep the margin of appreciation accorded by the European Court, or that they infringe the proportionality principle. The Supreme Court is therefore in no doubt as to the compatibility of this provision with the Constitution, which is called into question by the applicants.",
"In view of the legal impossibility of the adoption it is also not necessary to further examine whether the conditions for overriding the father’s refusal to consent, as an exceptional measure under Article 181 § 3 of the Civil Code, have been met.”",
"The judgment was served on the applicants’ counsel on 24 October 2006.",
"III. INTERNATIONAL CONVENTIONS AND COUNCIL OF EUROPE MATERIALS",
"A. Convention on the Rights of the Child",
"49. The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 and came into force on 2 September 1990. It has been ratified by all Council of Europe member States. Its relevant provisions read as follows:",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”",
"Article 21",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"...”",
"B. European Convention on the Adoption of Children (revised 2008) (“the 2008 Convention”)",
"50. The revised European Convention on the Adoption of Children was opened for signature on 27 November 2008 and came into force on 1 September 2011. It has been ratified by seven States, namely Denmark, Finland, the Netherlands, Norway, Romania, Spain and Ukraine. Austria has not ratified or signed the Convention.",
"51. One of the reasons for the revision, as stated in the preamble to the 2008 Convention, was that some of the provisions of the 1967 European Convention on the Adoption of Children were outdated and contrary to the case-law of the European Court of Human Rights. The relevant provisions of the 2008 Convention read as follows:",
"Article 4 – Granting of an adoption",
"“1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the best interests of the child.",
"2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home.”",
"Article 7 – Conditions for adoption",
"“1. The law shall permit a child to be adopted:",
"a. by two persons of different sex",
"i. who are married to each other, or",
"ii. where such an institution exists, have entered into a registered partnership together;",
"b. by one person.",
"2. States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship.”",
"Article 11 – Effects of an adoption",
"“1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.",
"2. Nevertheless, the spouse or partner, whether registered or not, of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides.",
"...”",
"52. The explanatory report on the 2008 Convention states the following under the heading “General considerations”:",
"“14. In a sense, there is only one principle essential to good adoption practice, namely that adoption should be in the best interests of the child as stated in Article 4, paragraph 1, of the Convention. ...”",
"53. Under the heading “Article 7 – Conditions for adoption”, the explanatory report states in its relevant parts as follows:",
"“42. This article provides for adoption either by a couple or by one person.",
"43. While the scope of the 1967 Convention is restricted to heterosexual married couples, the scope of the revised Convention is extended to heterosexual unmarried couples who have entered into a registered partnership in States which recognise that institution. By such a regulation the trend in many States is taken into account.",
"...",
"45. Concerning paragraph 2 it was noted that certain State Parties (Sweden in 2002 and the United Kingdom in 2005) denounced the 1967 Convention on the ground that same sex registered partners under their domestic law may apply jointly to become adoptive parents and that this was not in line with the Convention. Similar situations in other States could also lead to the denunciation of the 1967 Convention. However, it was also noted that the right of same sex registered partners to adopt jointly a child was not a solution that a large number of States Parties were willing to accept at the present time.",
"46. In these circumstances, paragraph 2 shall enable those States which wished to do so, to extend the revised Convention to cover adoptions by same sex couples who are married or registered partners. In this respect, it is not unusual for Council of Europe instruments to introduce innovative provisions, but to leave it to States Parties to decide whether or not to extend their application to them ...",
"47. States are also free to extend the scope of the Convention to different or same sex couples who are living together in a stable relationship. It is up to States Parties to specify the criteria for assessing the stability of such a relationship.”",
"C. Recommendation of the Committee of Ministers",
"54. Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, covers a wide range of areas where lesbian, gay, bisexual or transgender persons may encounter discrimination. In the chapter concerning the “Right to respect for private and family life”, it provides as follows:",
"“23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.",
"24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.",
"25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.",
"...",
"27. Taking into account that the child’s best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Adoption",
"21. The Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) contains definitions of “mother” and “father”.",
"Article 137b reads as follows:",
"“The mother shall be the woman who has given birth to the child.”",
"Article 138 provides:",
"“(1) The child’s father shall be the man",
"1. who is married to the child’s mother at the time of the child’s birth or, being the mother’s husband, died no earlier than three hundred days prior to the child’s birth, or",
"2. who has recognised paternity, or",
"3. whose paternity has been established by a court.”",
"22. The following provisions of the Civil Code on adoption are relevant to the present case.",
"Article 179 provides in its relevant part as follows:",
"“(1) Persons of full legal age and capacity ... may adopt. The adoption creates an adoptive parent-child relationship.",
"(2) The adoption of a child by more than one person, whether simultaneously or – as long as the adoptive relationship still exists – consecutively, shall be permitted only if the adoptive parents form a married couple. As a rule, spouses may only adopt a child jointly. An exception may be made where the child to be adopted is the spouse’s biological child, where one spouse does not fulfil the requirement of having full legal age or the required difference in age with the adoptee, where one spouse’s whereabouts have been unknown for at least a year, where the spouses have not been living in matrimonial community for at least three years or where there are similar and particularly serious grounds justifying adoption by only one spouse.”",
"23. Pursuant to Article 179a of the Civil Code, adoption requires a written agreement between the adoptive parent and the adoptive child (who, if a minor, will be represented by his or her legal representative) and the approval of that agreement by the competent court.",
"24. The court has to approve the agreement if it serves the child’s interests and if a relationship corresponding to a biological parent-child relationship already exists or if such a relationship is intended to be created (Article 180a of the Civil Code).",
"25. Article 181 of the Civil Code, in the version in force at the material time, provided in its relevant parts as follows:",
"“(1) Approval may be granted only if the following persons agree to the adoption:",
"1. the parents of the minor adopted child;",
"2. the spouse of the adoptive parent;",
"3. the spouse of the adopted child;",
"4. the adopted child from the age of fourteen;",
"...",
"(3) Where one of the persons referred to in points 1 to 3 of paragraph 1 refuses consent without justifiable grounds, the court shall override the refusal on an application from one of the parties.”",
"26. According to the domestic courts’ case-law, overriding a party’s refusal to consent under Article 181 § 3 of the Civil Code is an extraordinary measure that will only be envisaged where the interests of the child in the adoption clearly outweigh the interests of the biological parent, for instance in having contact with the child. It may also be envisaged if the refusal is not justified in moral terms, for example if the parent who is refusing consent has consistently displayed extreme antagonism towards the family or is guilty of flagrant neglect of his or her statutory obligations vis-à-vis the child such that the child’s development has been jeopardised on a lasting basis or would have been jeopardised without third-party assistance.",
"27. Article 182 of the Civil Code regulates the effects of adoption. It provides as follows:",
"“(1) The same rights that arise as a consequence of legitimate descent shall be created at that time between the adoptive parent and his or her offspring on the one hand, and the adopted child and his or her offspring who are minors at the time the adoption takes effect on the other hand.",
"(2) If the child is adopted by a married couple, the legal relationship under family law – above and beyond the legal kinship itself (Article 40) – between the biological parents and their relatives on the one hand, and the adopted child and his or her offspring who are minors at the time the adoption takes effect on the other hand, shall cease at that time, apart from the exceptions referred to in Article 182a. If the child is adopted by just an adoptive father (an adoptive mother), the relationship shall cease only in respect of the biological father (the biological mother) and his (her) relatives; in so far as the legal relationship with the other parent remains intact after the adoption, the court shall declare it to have been severed, subject to the consent of the parent concerned. The relationship ceases to exist as of the date on which the statement of consent is given, but no earlier than the date on which the adoption takes effect.”",
"As the Supreme Court’s judgment in the present case demonstrates, this provision is understood as excluding the adoption of one partner’s child by the other partner in a same-sex couple.",
"28. In the event of an adoption, all family-law relationships apart from the legal kinship between the adopted child and his or her biological parent or parents cease to exist. That means in particular that the biological parents or parent lose all parental rights such as custody, visiting rights and rights of information and consultation (see below).",
"29. Following adoption only a subsidiary maintenance obligation remains on the part of the biological parent or parents vis-à-vis the child, pursuant to Article 182a of the Civil Code. A relationship also remains intact in inheritance law: pursuant to Article 182b the adopted child still has inheritance rights through his or her biological parents, while the biological parents and their descendants have subsidiary inheritance rights through the adopted child; the inheritance rights of the adoptive parents and their descendants take precedence over these rights.",
"30. It follows from the provisions of the Civil Code set out above that adoption under Austrian law is either joint adoption by a couple (this form being reserved to married couples), or adoption by one person. Persons adopting alone may be heterosexual and be living as a married couple (in which case the conditions for this type of adoption are tightly restricted), as an unmarried couple or alone. They may also be homosexual and be living in a registered partnership, as an informal couple or alone.",
"31. Second-parent adoption, namely the adoption of one partner’s biological child by the other partner, is allowed in heterosexual couples (whether married or unmarried) but is not possible in same-sex couples.",
"32. Currently, a draft law is pending which proposes amendments to the provisions of the Civil Code regulating the relations between parent and child and the right to bear a name, as well as amendments to a number of other laws ( Kindschaftsrechts- und Namensrechtsänderungsgesetz ). It does not include any proposals to change the provisions here in issue, in particular Articles 179 to 182 of the Civil Code. Although these provisions are renumbered under the proposed amendments, their wording remains unchanged.",
"B. Same-sex couples",
"33. Same-sex couples are not allowed to marry, in accordance with Article 44 of the Civil Code (on this issue, see Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010). Article 44 of the Civil Code provides:",
"“The marriage contract shall form the basis for family relationships. Under the marriage contract two persons of opposite sex declare their lawful intention to live together in indissoluble matrimony, to beget and raise children and to support each other.”",
"34. On 1 January 2010 the Registered Partnership Act came into force. It gives same-sex couples the opportunity to enter into a registered partnership.",
"35. Section 2 of the Registered Partnership Act provides as follows:",
"“A registered partnership may be formed only by two persons of the same sex (registered partners). They thereby commit themselves to a lasting relationship with mutual rights and obligations.”",
"36. The rules on the establishment of a registered partnership, its effects and its dissolution resemble the rules governing marriage (for more details, see Schalk and Kopf, cited above, §§ 16-23). Like married couples, registered partners are expected to live together like spouses in every respect, to share a common home, to treat each other with respect and to provide mutual assistance (section 8(2) and (3)). Registered partners have the same obligations regarding maintenance as spouses (section 12). The Registered Partnership Act also contains a comprehensive range of amendments to existing legislation in order to provide registered partners with the same status as spouses in various other fields of law such as inheritance, employment, social security, tax, the law on administrative procedure, data protection and public service, passport and registration issues, as well as the law on foreigners.",
"37. However, some differences between marriage and registered partnership remain, the most important of which concern parental rights. Hence, assisted reproduction is available only to married or unmarried different-sex couples (section 2(1) of the Artificial Procreation Act – Fort pflanzungsmedizingesetz ).",
"38. Furthermore, registered partners are not allowed to adopt a child jointly, nor is second-parent adoption permitted.",
"39. Section 8(4) of the Registered Partnership Act provides as follows:",
"“Registered partners shall not be allowed to adopt a child jointly, nor shall one registered partner be allowed to adopt the other partner’s child.”",
"40. A person living in a registered partnership may adopt on his or her own: an amendment to Article 181 § 1, sub-paragraph 2, of the Civil Code introduced at the same time as the Registered Partnership Act states that the registered partner has to consent if his or her partner wishes to adopt a child.",
"41. The general section of the explanatory report on the draft law ( Erläuterungen zur Regierungsvorlage, 485 of Annex to the Minutes of the National Council, XXIV GP) noted that the purpose of the Registered Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, having particular regard to developments in other European countries. However, it was not intended to include any provisions concerning children or any amendments to the law in force in respect of children. In that connection the explanatory report noted that the joint adoption of a child by registered partners was excluded, as was the adoption of one registered partner’s child by the other partner.",
"42. The specific comment on section 8(4) of the Registered Partnership Act noted that this provision contained a prohibition on adoption, as repeatedly requested during the consultation procedure. Furthermore, the comments expressed the view that the judgments of the European Court of Human Rights in E.B. v. France ([GC], no. 435466/02, 22 January 2008) and Fretté (cited above) were not relevant in this context, as they related only to the applicants’ aptitude to raise a child. The legislature was free to regulate this issue. Moreover, second-parent adoption or joint adoption by registered partners was in any case excluded, as Austrian law on adoption as it stood did not allow situations in which a child had, for legal purposes, two fathers or two mothers.",
"43. The specific comment on the amendment of Article 181 § 1, sub-paragraph 2, of the Civil Code merely noted that, as the result of an oversight, the draft legislation had not proposed an amendment, an omission that had subsequently been corrected.",
"C. Children born outside marriage",
"44. Under Article 166 of the Civil Code, the mother of a child born outside marriage has sole custody (meaning that she exercises parental responsibility, caring for the child and raising him or her, representing the child in legal matters and managing his or her assets).",
"45. If the parents of a child born outside marriage are living in the same household they can agree to exercise custody jointly, under Article 167 of the Civil Code. Since an amendment to the Civil Code that came into force on 1 July 2001, the parents of a child born outside marriage can also agree to exercise custody jointly if they are not living in the same household. An agreement to exercise joint custody is subject to the approval of the court, which has to assess whether the agreement serves the child’s interests.",
"46. Both parents are obliged to provide maintenance for the child (Article 140 § 1 of the Civil Code). In principle, maintenance is to be provided in kind. The parent not living in the same household as the child has to provide maintenance in the form of maintenance payments.",
"47. The parent not living in the same household as the child has contact rights pursuant to Article 148 § 1 of the Civil Code. Since 1 July 2001, this is also considered to be a right for the child concerned (before that date it was only regarded as a right for the parent). The parent and the child should agree on the exercise of contact rights. If they are unable to reach agreement the court, at the request of one of the persons concerned and having regard to the needs and wishes of the child, must put in place a contact arrangement which serves the interests of the child.",
"48. Furthermore, under Article 178 § 1 of the Civil Code the parent who does not have custody has the right to be informed of certain important matters concerning the child, some of which require his or her approval.",
"IV. COMPARATIVE LAW",
"A. Study by the Council of Europe’s Commissioner for Human Rights",
"55. A recent study by the Council of Europe’s Commissioner for Human Rights entitled “Discrimination on grounds of sexual orientation and gender identity in Europe” (Council of Europe Publishing, June 2011) contains the following information on the issue:",
"“LGBT [lesbian, gay, bisexual and transgender] persons can adopt a child by one of three procedures. A single lesbian woman or gay man may apply to become an adoptive parent (single-parent adoption). Alternatively, a same-sex couple can adopt their partner’s biological or adopted children without terminating the first parent’s legal rights. These are so called ‘second-parent adoptions’ and give the child two legal guardians. Second-parent adoptions also protect the parents by giving both of them legally recognised parental status. The lack of second-parent adoption deprives the child and the non-biological parent of rights if the biological parent dies or in the case of divorce, separation, or other circumstances that would bar the parent from carrying out parental responsibilities. The child also has no right to inherit from the non-biological parent. Moreover, at an everyday level, the lack of second-parent adoption rules out parental leave, which can be harmful financially for LGBT families. The third procedure is joint adoption of a child by a same sex couple.",
"Ten member states allow second-parent adoption to same-sex couples (Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Spain, Sweden and the United Kingdom). Apart from Finland and Germany these member states also give access to joint adoptions for same-sex couples. In Austria and France there is no access to second-parent adoption but same-sex couples in registered partnerships are allowed some parental authority or responsibilities. No access to joint adoption or second-parent adoption is a reality in 35 member states: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Georgia, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Switzerland, ‘the former Yugoslav Republic of Macedonia’, Turkey and Ukraine. ...”",
"B. Further information on comparative law",
"56. From the information available to the Court, including a survey of thirty-nine Council of Europe member States, it would appear that in addition to the ten member States mentioned by the Commissioner’s study, (Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Spain, Sweden and the United Kingdom (with the exception of Northern Ireland)), one further member State, namely Slovenia, has accepted second-parent adoption by same-sex couples in the recent case-law of its courts.",
"57. The majority (twenty-four) of the thirty-nine Council of Europe member States on which information is available to the Court reserve second-parent adoption to married couples.",
"Ten member States (Belgium, Iceland, the Netherlands, Portugal, Romania, Russia, Slovenia, Spain, Ukraine and the United Kingdom (with the exception of Northern Ireland)) also allow second-parent adoption by unmarried couples. Six States in this group allow second-parent adoption by unmarried heterosexual and unmarried same-sex couples alike, while four (Portugal, Romania, Russia and Ukraine) allow it – like Austria – only for unmarried different-sex couples but not for unmarried same-sex couples.",
"The remaining States surveyed have adopted different solutions, for instance allowing second-parent adoption for married couples and registered partners (for example, in Germany and Finland), but not for unmarried couples, whether heterosexual or homosexual.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"58. The applicants complained under Article 14 of the Convention taken in conjunction with Article 8 that they were being discriminated against in the enjoyment of their family life on account of the first and third applicants’ sexual orientation. They submitted that there was no reasonable and objective justification for allowing the adoption of one partner’s child by the other partner where heterosexual couples, whether married or unmarried, were concerned, while prohibiting the adoption of one partner’s child by the other partner in the case of same-sex couples.",
"Article 8 of the Convention reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14 provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"59. The Government asserted that the application should be declared inadmissible as being manifestly ill-founded. They argued that on the facts of the case there was no issue of discrimination. In particular, they submitted that the domestic courts had refused to authorise the second applicant’s adoption on the ground that his father had not consented and that it was not in the child’s interests. Consequently, the legal impossibility for a homosexual to adopt his or her partner’s child, resulting from Article 182 § 2 of the Civil Code, had not come into play. In the Government’s view, the applicants were therefore requesting the Court to review this provision in the abstract.",
"60. The Government thus appear to argue that the applicants cannot claim to be victims of the alleged violation within the meaning of Article 34 of the Convention as, in the specific circumstances of the case, they were not directly affected by the law complained of. However, the Court notes that the Government have not raised an explicit objection as to admissibility on that ground. The Court considers it appropriate to deal with the issues raised by the Government in the context of the examination of the merits of the case.",
"61. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"62. The applicants argued that they were in a relevantly similar situation to different-sex couples raising children. They referred to numerous scientific studies which confirmed that children developed equally well in same-sex families and in different-sex families.",
"63. The applicants noted that second-parent adoption was open to married couples. Same-sex couples were not allowed to marry under Austrian law. Even if they became registered partners, second-parent adoption was explicitly prohibited by section 8(4) of the Registered Partnership Act. However, the applicants stressed that they did not wish to assert a right which was reserved to marriage-based families.",
"64. They emphasised that the key issue in the present case was the unequal treatment between unmarried different-sex couples and unmarried same-sex couples. Under Austrian law, second-parent adoption was possible for unmarried heterosexual couples, but not for unmarried same-sex couples. The applicants pointed out that this was a crucial difference compared with Gas and Dubois v. France (no. 25951/07, ECHR 2012), as under French law second-parent adoption was reserved to married couples. The present case therefore raised an issue similar to that in Karner v. Austria (no. 40016/98, ECHR 2003 ‑ IX), in that a right which was open to unmarried heterosexual couples was refused to same-sex couples. Furthermore they pointed out that only four Council of Europe member States adopted the same position as Austria, that is to say, allowing second-parent adoption in unmarried opposite-sex couples while prohibiting it in same-sex couples. The vast majority either reserved second-parent adoption to married couples or granted it also to unmarried couples irrespective of their sexual orientation.",
"65. The applicants asserted that they had indeed been treated differently in the proceedings in issue. Before the domestic courts, they had argued that the refusal by the second applicant’s father to consent to the adoption was not justified as he had been acting against the interests of the child. Consequently, the second applicant’s interest in the adoption outweighed his father’s interest in objecting to it. Thus, they argued that the court should have overridden the father’s refusal in accordance with Article 181 § 3 of the Civil Code. In the case of an opposite-sex couple, the District Court would have carried out a detailed examination and would have had to deliver a separate decision on this issue. However, in the applicants’ case it had denied them any inquiry of the facts on the ground that the adoption requested by them was in any case not possible under Austrian law. This position had been explicitly confirmed by the Supreme Court.",
"66. The applicants stressed that the gist of their complaint was that they were automatically excluded from any chance of adoption. The case was therefore similar to E.B. v. France ([GC], no. 43546/02, 22 January 2008) in that they were excluded from any meaningful possibility of adopting on account of the first and third applicants’ sexual orientation.",
"67. The applicants noted the Government’s argument that Austrian adoption law was aimed at protecting the interests of the child. According to the Court’s case-law, it was for the Government to show that the exclusion of same-sex couples from second-parent adoption was necessary to achieve that aim. There was a far-reaching scientific consensus that same-sex couples were as capable as different-sex couples of ensuring the positive development of children. From among the studies they submitted, the applicants referred at the hearing to a large-scale study entitled “The life of children in same-sex civil partnerships” commissioned by the German Ministry of Justice (Marina Rupp (ed.), Die Lebenssituation von Kindern in gleich geschlechtlichen Lebenspartnerschaften, Cologne, 2009).",
"68. In so far as the Government had argued that Austrian law sought to avoid a situation where a child had two fathers or two mothers for legal purposes, the applicants pointed out that they had formed a de facto family for many years but were still denied any possibility of legal recognition of their family life. Furthermore, they submitted that under Austrian law an adopted child often had two mothers or two fathers. Under Article 182 § 2 of the Civil Code, the adoption severed the family-law relationship between the adopted child and the biological parent or parents. However, mutual maintenance obligations and inheritance rights, albeit subsidiary to those of the adoptive parents, remained intact.",
"69. The applicants submitted a further argument based on the 2008 European Convention on the Adoption of Children (“the 2008 Convention”), the Committee of Ministers’ Recommendation of 31 March 2010 and the United Nations Convention on the Rights of the Child. In all these texts the key notion in respect of adoption was the best interests of the child and not the gender or the sexual orientation of the parents. Finally, they contested the Government’s argument that there were sufficient alternative possibilities under Austrian law for giving legal recognition to the relationship between a child and his or her parent’s same-sex partner.",
"(b) The Government",
"70. The Government did not contest the applicability of Article 14 taken in conjunction with Article 8. They accepted that the relationship between the three applicants constituted family life. However, they pointed out that the facts of the present case differed from those in Gas and Dubois (cited above), as the second applicant had a father with whom he also maintained a family relationship.",
"71. Furthermore, the Government argued that the applicants’ situation was not comparable to that of a married couple in which one spouse wished to adopt the other spouse’s child, and invited the Court to follow its findings in Gas and Dubois (cited above, §§ 66-68).",
"72. In respect of the comparison with an unmarried different-sex couple, the Government accepted that the applicants were in a comparable situation, conceding that, in personal terms, same-sex couples could in principle be as suitable or unsuitable as different-sex couples for the adoption of children in general or for second-parent adoption in particular. They were also in a comparable situation in that any adoption required the consent of both biological parents.",
"73. The Government added that the fact that the adoption of a minor severed parental ties was considered compatible with Article 8 (they referred to Emonet and Others v. Switzerland, no. 39051/03, 13 December 2007, and Eski v. Austria, no. 21949/03, 25 January 2007), and that States enjoyed a wide margin of appreciation in the area of adoption law. Austrian adoption law gave priority to the biological parents when it came to the care of their child. Since adoption resulted in the loss of parental rights, it was only to be authorised if it was clearly in the child’s interests. The consent of the replaced parent, whose relationship with the child was also protected by Article 8, was therefore a prerequisite for adoption. Austrian law struck a reasonable balance between all the interests involved.",
"74. On the facts of the case, the Government argued that it did not raise a discrimination issue as there had been no difference in treatment between the first and third applicants’ case and the case of an unmarried different-sex couple. They asserted that the domestic courts, in particular the Regional Court, had thoroughly assessed the question of the second applicant’s interest in the adoption and had come to the conclusion that he had a relationship with his father and that there was thus no need to replace the latter by an adoptive parent. The Government stressed in particular that the consent of both biological parents was an essential precondition for any adoption. As the second applicant’s father did not consent in the present case, the courts would have been similarly prevented from agreeing to the adoption if the request had been made by the unmarried different-sex partner of the third applicant. The Government further argued that the applicants had not substantiated their allegations that there were grounds for overriding the father’s refusal to consent to the adoption, nor had they requested a formal decision on that point.",
"75. Furthermore, the Government asserted that the Civil Code was not aimed at excluding same-sex partners. The impossibility for a woman to adopt another woman’s child would also apply if an aunt wished to adopt her nephew while his relationship with his mother was still intact. The explicit exclusion of second-parent adoption in same-sex couples had only been introduced by the Registered Partnership Act in 2010. The latter had not been in force when the present case had been determined by the domestic courts and was therefore not relevant in the present context.",
"76. Should the Court consider that there had been a difference in treatment and enter into the question of justification for the prohibition of second-parent adoption in same-sex couples, the Government argued that recreating the biological family and securing the child’s well-being were legitimate aims. Austrian adoption law did not aim to exclude same-sex couples but sought, as a general rule, to avoid a situation where a child had two mothers or two fathers for legal purposes. The law pursued these aims using appropriate means, as it also had to take the interests of other persons involved into account, and secured the interests of the partner of the child’s parent by other means.",
"77. Lastly, the Government asserted that States had a wide margin of appreciation on the issue of second-parent adoption by same-sex couples. According to the Government’s information, only ten Council of Europe member States permitted such adoptions. It followed that there was no European standard and it could not even be said that a trend or a tendency existed.",
"(c) The third parties",
"(i) Fédération international des ligues des droits de l’homme, the International Commission of Jurists, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, the British Association for Adoption and Fostering, the Network of European LGBT Families Associations and the European Commission on Sexual Orientation Law",
"78. In their joint comments these six non-governmental organisations stressed that, like Karner (cited above), the present case concerned a difference in treatment in that an unmarried different-sex couple was granted a right which was denied to an unmarried same-sex couple. The standards developed in Karner should therefore be applied. Furthermore, in Salgueiro da Silva Mouta v. Portugal (no. 33290/96, ECHR 1999 ‑ IX) and in E.B. v. France (cited above), the Court had implicitly accepted that there were no reasons why a child should not be raised by a lesbian or gay individual living with a same-sex partner. A similar finding had recently been made by the Inter-American Court of Human Rights in the case of Atala Riffo and Daughters v. Chile (judgment of 24 February 2012).",
"79. Furthermore, if one considered the question of European consensus, the third-party interveners noted that the majority of the forty-seven Council of Europe member States restricted second-parent adoption to married different-sex couples. In the present case only those States which extended second-parent adoption to others, for instance to same-sex couples (married, living in a registered partnership or cohabiting) or to unmarried different-sex couples, could serve as a comparison. Within that group fourteen States extended, or were planning to extend, second-parent adoption to same-sex couples, while only five (including Austria) extended it to unmarried different-sex couples while excluding same-sex couples.",
"80. Finally, Article 7 of the 2008 Convention recognised the variety of adoption legislation. This did not alter the fact that Articles 14 and 8 of the Convention prohibited member States from extending the right to adopt to one group but not to another on discriminatory grounds.",
"(ii) The European Centre for Law and Justice (ECLJ)",
"81. The ECLJ argued that Article 8 did not apply, as there had been no interference with the applicants’ de facto family life. It further noted that there was no right to adopt or to be adopted. In essence the applicants wished to assert a right to legal recognition of their family life. However, the right to found a family under Article 12 was, like the right to marry, reserved to opposite-sex couples.",
"82. Should the case be examined under Article 8, even assuming interference with the applicants’ right to respect for their family life, it was prescribed by law, namely by Article 182 § 2 of the Civil Code, and served a legitimate aim, namely to protect the relationship between the second applicant and his father, who did not consent to the adoption. The domestic courts’ refusal of the adoption requested by the applicants also served the legitimate aims of preserving the natural family and providing legal certainty for the child. Biological reality was an objective factor and was therefore to be regarded as reasonable justification.",
"83. With regard to Article 14 taken in conjunction with Article 8, the ECLJ submitted that the first and third applicants were not in a similar situation to a different-sex couple as they did not have the biological possibility to found a family. There had been no difference in treatment, as Article 182 § 2 of the Civil Code applied to all couples, whether of different sex or of the same sex. The fact that the effects were different for a same-sex couple did not amount to discrimination.",
"(iii) The Attorney General for Northern Ireland",
"84. The Attorney General for Northern Ireland referred to the 2008 Convention, noting that it could serve to assess the state of European consensus with respect to adoption. He observed in particular that Article 4 established the best interests of the child as the governing principle of any adoption. Article 7 made it clear that there was no consensus in respect of adoption by same-sex couples.",
"85. The Attorney General explained that litigation was currently pending in Northern Ireland since, under Articles 14 and 15(1) of the Adoption (Northern Ireland) Order 1987 as amended by the Civil Partnership Act, neither a same-sex couple, whether they were civil partners or not, nor a gay or lesbian person who was in a civil partnership could apply to adopt, while a single person regardless of their sexual orientation who was not in a civil partnership could apply to adopt. It was alleged in these proceedings that the cumulative effect of these provisions violated Article 14 of the Convention taken in conjunction with Article 8.",
"86. Starting from the observation that the Convention did not guarantee a right to adopt, the Attorney General for Northern Ireland concluded on the basis of the Court’s recent case-law ( E.B. v. France and Gas and Dubois, both cited above; Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010; and S.H. and Others v. Austria [GC], no. 57813/00, ECHR 2011) that the Court had so far exercised judicial restraint, accepting that the domestic legislature was better placed than the European judge to assess questions concerning the notion of family, marriage and the relations between parents and children.",
"(iv) Amnesty International",
"87. Amnesty International provided an overview of non-discrimination clauses in international and regional human rights treaties and of the relevant case-law of the Court and the Inter-American Court of Human Rights. They also drew on the interpretation of the relevant clauses by the various United Nations treaty monitoring bodies, in particular the Human Rights Committee and the Committee on the Rights of the Child.",
"88. They pointed out that differences in treatment based on sexual orientation required particularly convincing and weighty reasons, and referred in particular to a recent judgment by the Inter-American Court ( Atala Riffo and Daughters, cited above) which had clarified that “sexual orientation is part of a person’s intimacy and is not relevant when examining aspects related to an individual’s suitability as a parent”.",
"89. Amnesty International further referred to the Convention on the Rights of the Child, noting that Article 3 made the best interests of the child the “primary consideration” in all actions concerning children. In respect of adoption, Article 21 of the Convention on the Rights of the Child established that the best interests of the child were the “paramount consideration”. Thus, the Convention on the Rights of the Child placed important limits on the States’ margin of appreciation, prohibiting them, for instance, from applying different standards based on the composition of the child’s family or the sexual orientation of a parent. Consequently, any adoption system had to allow the courts or other relevant authorities to base a decision on adoption petitions primarily on what was best for the child.",
"(v) Alliance Defending Freedom",
"90. Alliance Defending Freedom noted that the Convention did not guarantee a right to adopt nor did the Court’s case-law recognise such a right under Article 8. By contrast, the Court had found Article 14 taken in conjunction with Article 8 to be applicable in cases of alleged discrimination in the adoption procedure and had examined a small number of such cases ( Fretté v. France, no. 36515/97, ECHR 2002-I; and E.B. v. France and Gas and Dubois, both cited above). It was important to note that in E.B. v. France one of the decisive considerations for the Court was the fact that French law allowed single persons to adopt, thereby opening up the possibility of adoption by a single homosexual. The present case was different as the finding of a violation would amount to rewriting domestic law, which allowed second-parent adoption for heterosexual couples only. In that context the third-party intervener noted that there was no European consensus on the issue.",
"91. As a second line of argument, Alliance Defending Freedom asserted that the widely circulated “no differences” thesis – that is to say, the claim made by various studies that children raised by same-sex couples were not disadvantaged in any significant respect compared with children raised by heterosexual parents – had been called into question by recent social research, in particular by studies carried out in the United States of America. Given the inconclusive findings of the scientific research and the wide margin of appreciation States enjoyed in the area of family law, it was justified in the interests of the child to reserve adoption, including second-parent adoption, to heterosexual couples.",
"2. The Court’s assessment",
"(a) Applicability of Article 14 of the Convention taken in conjunction with Article 8",
"92. The Court has dealt with a number of cases concerning discrimination on the ground of sexual orientation in the sphere of private and family life. Some were examined under Article 8 alone, namely cases concerning the prohibition under criminal law of homosexual relations between adults (see Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; Norris v. Ireland, 26 October 1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A no. 259) and the discharge of homosexuals from the armed forces (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, ECHR 1999 ‑ VI). Others were examined under Article 14 taken in conjunction with Article 8. The issues at stake included differing ages of consent under criminal law for both homosexual and heterosexual relations (see L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003 ‑ I), the granting of parental rights (see Salgueiro da Silva Mouta, cited above), authorisation to adopt a child (see Fretté, E.B. v. France and Gas and Dubois, all cited above), the right to succeed to the deceased partner’s tenancy (see Karner, cited above, and Kozak v. Poland, no. 13102/02, 2 March 2010), the right to social security cover (see P.B. and J.S. v. Austria, no. 18984/02, 22 July 2010) and the question of same-sex couples’ access to marriage or to an alternative form of legal recognition (see Schalk and Kopf, cited above).",
"93. In the present case the applicants formulated their complaint under Article 14 taken in conjunction with Article 8, claiming that all three of them enjoyed family life together. The Government did not dispute the applicability of Article 14 taken in conjunction with Article 8. The Court sees no reason to follow a different approach for the following reasons.",
"94. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, for instance, Schalk and Kopf, cited above, § 89; E.B. v. France, cited above, § 47; Karner, cited above, § 32; and Petrovic v. Austria, 27 March 1998, § 22, Reports of Judgments and Decisions 1998 ‑ II).",
"95. The Court reiterates that the relationship of a cohabiting same-sex couple living in a stable de facto relationship falls within the notion of “family life” just as the relationship of a different-sex couple in the same situation would (see Schalk and Kopf, cited above, § 94). Furthermore, the Court found in its admissibility decision in Gas and Dubois v. France ((dec.), no. 25951/07, 31 August 2010) that the relationship between two women who were living together and had entered into a civil partnership, with a child conceived by one of them by means of assisted reproduction but who was being brought up by both of them, constituted “family life” within the meaning of Article 8 of the Convention.",
"96. The first and third applicants in the present case form a stable same-sex couple. They have been cohabiting for many years and the second applicant shares their home. His mother and her partner care for him jointly. The Court therefore finds that the relationship between all three applicants amounts to “family life” within the meaning of Article 8 of the Convention.",
"97. The Court concludes that Article 14 of the Convention taken in conjunction with Article 8 applies to the facts of the present case.",
"(b) Compliance with Article 14 taken in conjunction with Article 8",
"(i) The principles established in the Court’s case-law",
"98. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Schalk and Kopf, cited above, § 96, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).",
"99. Sexual orientation is a concept covered by Article 14. The Court has repeatedly held that, just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification or, as is sometimes said, particularly convincing and weighty reasons (see, for example, E.B. v. France, § 91; Kozak, § 92; Karner, §§ 37 and 42; L. and V. v. Austria, § 45; and Smith and Grady, § 90, all cited above). Where a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow (see Kozak, cited above, § 92, and Karner, cited above, § 41). Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see E.B. v. France, §§ 93 and 96, and Salgueiro da Silva Mouta, § 36, both cited above).",
"100. Before examining the applicants’ complaint, the Court points out that three types of situation may be distinguished in the context of adoption by homosexuals. Firstly, a person may wish to adopt on his or her own (individual adoption). Secondly, one partner in a same-sex couple may wish to adopt the other partner’s child, with the aim of giving both of them legally recognised parental status (second-parent adoption). Finally, a same-sex couple may wish to adopt a child (joint adoption) (see the study of the Council of Europe’s Commissioner for Human Rights, cited at paragraph 55 above; see also E.B. v. France, cited above, § 33).",
"101. So far, the Court has had to deal with two cases relating to individual adoption by homosexuals ( Fretté and E.B. v. France, both cited above) and with one case relating to second-parent adoption in a same-sex couple ( Gas and Dubois, also cited above).",
"102. In Fretté (cited above), the French authorities had refused the request for authorisation to adopt, finding that owing to his “lifestyle” (meaning his homosexuality) the applicant did not provide the requisite safeguards for adopting a child. The Court, examining the case under Article 14 taken in conjunction with Article 8, noted that French law authorised any unmarried person, man or woman, to apply to adopt, and that the French authorities had refused the applicant’s request for prior authorisation on the ground – albeit implicit – of his sexual orientation. Thus there had been a difference in treatment based on sexual orientation (see Fretté, cited above, § 32). The Court found that the domestic authorities’ decisions had pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure. With regard to whether a difference in treatment was justified, the Court noted in particular that there was little common ground between member States of the Council of Europe, where the law appeared to be going through a transitional phase, and that national authorities should enjoy a wide margin of appreciation when ruling on such matters. In respect of the competing interests of the applicant and children eligible for adoption, the Court noted that the scientific community was divided over the possible consequences of children being brought up by one or more homosexual parents, regard being had in particular to the limited number of scientific studies on the subject published at the material time. In conclusion, the Court considered that the refusal to authorise the adoption had not infringed the principle of proportionality and that, accordingly, the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention (ibid., §§ 37-43).",
"103. In its Grand Chamber judgment in E.B. v. France (cited above), the Court, again examining the case under Article 14 taken in conjunction with Article 8, reversed its position. It analysed in detail the reasons given by the French authorities for refusing the applicant, who was living with another woman in a stable same-sex relationship, authorisation to adopt. The Court noted that the domestic authorities had based their decisions on two main grounds, the lack of a “paternal referent” in the applicant’s household or immediate circle of family and friends, and the lack of commitment on the part of her partner. It added that the two grounds formed part of an overall assessment of the applicant’s situation, with the result that the illegitimacy of one ground contaminated the entire decision. While the second ground was not unreasonable, the first ground was implicitly linked to the applicant’s homosexuality and the authorities’ reference to it was excessive in the context of a single person’s request for authorisation to adopt. In sum, the applicant’s sexual orientation had been consistently at the centre of deliberations in her regard and had been decisive for the decision to refuse her authorisation to adopt (see E.B. v. France, cited above, §§ 72-89). The Court went on to say that if the reasons advanced for a difference in treatment were based solely on considerations regarding the applicant’s sexual orientation, this would amount to discrimination under the Convention (ibid., § 93). It observed that, under French law, a single person was allowed to adopt and that it was undisputed that this opened up the possibility of adoption by a single homosexual. Having regard to its analysis of the reasons advanced by the French authorities, it concluded that in refusing the applicant authorisation to adopt, they had made a distinction on the basis of her sexual orientation which was not acceptable under the Convention. The Court consequently found a violation of Article 14 taken in conjunction with Article 8 (ibid., §§ 94-98).",
"104. The case of Gas and Dubois (cited above) concerned two women forming a same-sex couple who had concluded a civil partnership ( pacte civil de solidarité – PACS) under French law. One of them was the mother of a child conceived by means of assisted reproduction. Under French law she was the sole parent of the child. The applicants complained under Article 14 of the Convention taken in conjunction with Article 8 that one partner could not adopt the other’s child. More specifically, they wished to obtain a simple adoption order ( adoption simple ) under French law in order to create a parent-child relationship between the child and her mother’s partner with the possibility of sharing parental responsibility. The domestic courts had refused the adoption request on the ground that it would transfer parental rights from the child’s mother to her partner, which was not in the child’s interests (see Gas and Dubois, cited above, § 62). The Court examined the applicants’ situation in comparison with that of a married couple. It noted that, in cases of adoption simple, French law allowed only married couples to share parental rights. As Contracting States were not obliged to grant access to marriage to same-sex couples, and having regard to the special status conferred by marriage, the applicants’ legal situation was not comparable to that of a married couple (ibid., § 68). As to the situation of unmarried different-sex couples living together – like the applicants – in a civil partnership, the Court noted that second-parent adoption was not open to them either (ibid., § 69). Thus, there had been no difference in treatment based on sexual orientation. In conclusion, the Court found that there had been no violation of Article 14 of the Convention taken in conjunction with Article 8.",
"(ii) Application of these principles to the present case",
"(α) Comparison with a married couple in which one spouse wishes to adopt the other spouse’s child",
"105. The first issue to be addressed is whether the applicants, namely the first and third applicants, who are living together as a same-sex couple, and the third applicant’s son, are in a situation which is relevantly similar to that of a married different-sex couple in which one spouse wishes to adopt the other spouse’s biological child.",
"106. The Court has recently answered this question in the negative in Gas and Dubois. The Court finds it appropriate to repeat and confirm the relevant considerations here. It reiterates in the first place that Article 12 of the Convention does not impose an obligation on the Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf, cited above, §§ 54-64). Nor can a right to same-sex marriage be derived from Article 14 taken in conjunction with Article 8 (ibid., § 101). Where a State chooses to provide same-sex couples with an alternative means of legal recognition, it enjoys a certain margin of appreciation as regards the exact status conferred (ibid., § 108; see also Gas and Dubois, cited above, § 66). Furthermore, the Court has repeatedly held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (see, among other authorities, Gas and Dubois, cited above, § 68, and Burden, cited above, § 63).",
"107. Austrian law indeed creates a special regime for married couples in respect of adoption. Under Article 179 § 2 of the Civil Code, joint adoption is open to married couples only. In turn, married couples may, as a rule, only adopt jointly. Second-parent adoption of the other spouse’s child is provided for in the above-mentioned Article as an exception to that rule.",
"108. The Government, relying on the Court’s Gas and Dubois judgment, argued that the applicants were not in a relevantly similar situation to a married couple. For their part, the applicants stressed that they did not wish to assert a right that was reserved to married couples. The Court does not see any reason to deviate from its case-law in this regard.",
"109. In the light of these considerations, the Court concludes that the first and third applicants are not in a relevantly similar situation to a married couple in respect of second-parent adoption.",
"110. Consequently, there has been no violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of a married couple in which one spouse wishes to adopt the other spouse’s child.",
"(β) Comparison with an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child",
"111. The Court notes that the applicants’ submissions concentrated on the comparison with an unmarried different-sex couple. They pointed out that under Austrian law second-parent adoption was open not only to married couples, but also to unmarried heterosexual couples, while it was legally impossible for same-sex couples.",
"Relevantly similar situation",
"112. The Court observes that, in contrast to the comparison with a married couple, it has not been argued that a special legal status exists which would distinguish an unmarried heterosexual couple from a same-sex couple. Indeed, the Government did not dispute that the situations were comparable, conceding that, in personal terms, same-sex couples could in principle be as suitable or unsuitable for adoption, including second-parent adoption, as different-sex couples. The Court accepts that the applicants, who wished to create a legal relationship between the first and second applicants, were in a relevantly similar situation to a different-sex couple in which one partner wished to adopt the other partner’s child.",
"Difference in treatment",
"113. The Court will now turn to the question whether there was a difference in treatment based on the first and third applicants’ sexual orientation.",
"114. Austrian law allows second-parent adoption by an unmarried different-sex couple. In general terms, individuals may adopt under Article 179 of the Civil Code, and nothing in Article 182 § 2 of the Civil Code, which regulates the effects of adoption, prevents one partner in an unmarried heterosexual couple from adopting the other partner’s child without severing the ties between that partner and the child. In contrast, second-parent adoption in a same-sex couple is legally impossible. This follows from Article 182 § 2 of the Civil Code, according to which any person who adopts effectively replaces the biological parent of the same sex. In the present case, as the first applicant is a woman, the second applicant’s adoption by her could only sever the relationship with his mother, who is her same-sex partner. Adoption can therefore not serve to create a parent-child relationship between the first and second applicants in addition to the relationship with his mother, the third applicant. Although neutral at first glance, Article 182 § 2 of the Civil Code excludes second-parent adoption in a same-sex couple.",
"115. For the sake of completeness the Court observes that, since the entry into force of the Registered Partnership Act on 1 January 2010, same-sex couples have had the opportunity to enter into a registered partnership. The first and third applicants have not made use of this opportunity. In any case, this would not open up the possibility of second-parent adoption to them, as section 8(4) of the Act explicitly prohibits the adoption of one registered partner’s child by the other partner.",
"116. There is thus no doubt that the applicable legislation leads to a distinction between unmarried different-sex and same-sex couples in respect of second-parent adoption. Under Austrian law as it stands, second-parent adoption was and still is impossible in the applicants’ case. This would be so even if the biological father of the second applicant were dead or unknown or if there were grounds for overriding his refusal to consent to the adoption. It would even be impossible if the second applicant’s father were ready to give his consent to the adoption. This was not disputed by the Government.",
"117. However, the Government argued on the facts of the case that it disclosed no element of discrimination. They submitted that the applicants’ adoption request had been refused on grounds unrelated to the first and third applicants’ sexual orientation. Firstly, the courts and in particular the Regional Court had refused the adoption on the ground that it was not in the second applicant’s interests. Secondly, any adoption required the consent of the child’s biological parents. As the second applicant’s father did not consent, the courts had been obliged to refuse the adoption request. They would have had to decide in exactly the same way had the first applicant been the male partner of the third applicant. In other words, the difference in law resulting from Article 182 § 2 of the Civil Code did not come into play in the circumstances of the applicants’ case. Consequently, the Government asserted that the applicants were asking the Court to carry out a review of the law in abstracto.",
"118. Having regard to the content of the domestic courts’ decisions (see paragraphs 15, 18 and 20 above), the Court is not convinced by the Government’s argument. First of all, the domestic courts made it clear that an adoption producing the effect desired by the applicants, namely establishing a parent-child relationship between the first and second applicants in addition to the parent-child relationship between the latter and his mother, was in any case impossible under Article 182 § 2 of the Civil Code.",
"119. The District Court relied on the legal impossibility argument alone. It did not carry out any investigation into the circumstances of the case. In particular, it did not deal at all with the question whether the second applicant’s father consented to the adoption or whether there were any grounds for overriding his refusal to consent, as alleged by the applicants.",
"120. The Regional Court too relied on the legal impossibility of the adoption requested by the applicants, but also had regard to some other factors. It expressed doubts as to whether the second applicant could be represented by his mother in the adoption proceedings owing to a possible conflict of interests. However, it found that the question need not be resolved as the District Court had rightly refused to grant the adoption without any further investigation. On the basis of the materials before the Court, it does not appear that the Regional Court heard evidence from any of the persons concerned, namely the applicants and the second applicant’s father. As to the role of the latter, the Regional Court confined itself to observing – on the basis of the file – that he had regular contact with his son. It did not deal with the question whether, as alleged by the applicants, there were grounds for overriding the father’s refusal to consent under Article 181 § 3 of the Civil Code. By contrast, it dwelt at length on the fact that the notion of “parents” in Austrian family law meant two persons of opposite sex. It also had regard to the interest of the child in maintaining contact with two parents of different sex, which in its view militated clearly against authorising the adoption of a child by the same-sex partner of one of its parents. Furthermore, it examined in the light of the Court’s Karner judgment (cited above) whether adoption law as it stood discriminated against same-sex partners.",
"121. A further important element to be considered is the fact that the Regional Court declared an appeal on points of law to the Supreme Court to be admissible on the ground that there was no case-law on “the issue now to be determined, ... namely whether the adoption of a child by the same-sex partner of one of its parents is lawful”. In the Court’s view, this plainly contradicts the Government’s assertion that the legal impossibility of second-parent adoption in a same-sex couple did not play a role in the determination of the present case.",
"122. The Supreme Court confirmed that the adoption of a child by the female partner of his or her biological mother was legally impossible under Article 182 § 2 of the Civil Code, finding that this provision was compatible with Article 14 taken in conjunction with Article 8 as falling within the State’s margin of appreciation. Finally, it also confirmed that in view of the legal impossibility of the adoption requested it was not necessary to examine whether the conditions for overriding the father’s refusal to consent, as an exceptional measure under Article 181 § 3 of the Civil Code, were met.",
"123. In conclusion, the Court dismisses the Government’s argument that the applicants were not affected by the difference in law resulting from Article 182 § 2 of the Civil Code. In the Court’s view, the legal impossibility of the adoption requested by the applicants was consistently at the centre of the domestic courts’ considerations (see, mutatis mutandis, E.B. v. France, cited above, § 88).",
"124. Indeed, this fact prevented the domestic courts from examining in any meaningful manner whether the adoption was in the second applicant’s interests as required by Article 180a of the Civil Code. Consequently, they did not investigate the circumstances of the case in detail. Moreover, they did not examine whether there were any reasons which might justify overriding the father’s refusal to consent, in accordance with Article 181 § 3 of the Civil Code. The Government argued that the applicants had not sufficiently substantiated their allegations that there were such reasons, and pointed out that they had failed to request a formal decision on that issue. It suffices for the Court to note that the domestic courts did not dismiss the applicants’ submissions on either of these grounds. As set out above, the District Court and the Regional Court did not deal with that issue at all and the Supreme Court confirmed in unequivocal terms that it had not been necessary to deal with it in view of the legal impossibility of the adoption requested.",
"125. Had the first and third applicants been an unmarried different-sex couple, the domestic courts would not have been able to refuse the adoption request as a matter of principle. Instead, the courts would have been required to examine whether the adoption served the second applicant’s interests within the meaning of Article 180a of the Civil Code. If the child’s father had not consented to the adoption, the courts would have had to examine whether there were exceptional circumstances such as to justify overriding his refusal under Article 181 § 3 of the Civil Code (see, as an example, Eski, cited above, §§ 39-42, concerning second-parent adoption in a different-sex couple, in which the Austrian courts conducted a detailed examination of that issue, balancing the interests of all the persons concerned – the couple, the child and the biological father of the child – having duly heard evidence from them and having established all the relevant facts).",
"126. Consequently, the Court finds that the applicants’ complaint is in no sense an actio popularis. As already stated (see paragraph 123 above), the applicants were directly affected by the law complained of, as Article 182 § 2 of the Civil Code contains an absolute prohibition on second-parent adoption in a same-sex couple, making any examination of the specific circumstances of their case unnecessary and irrelevant and leading to the refusal of their adoption request as a matter of principle. It follows that the Court is not reviewing the law in abstracto : the blanket prohibition in issue, by its very nature, removes the factual circumstances of the case from the scope of both the domestic courts’ and this Court’s examination (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 72, ECHR 2005 ‑ IX).",
"127. The Court would add that, at first sight, the difference in treatment may seem to concern mainly the first applicant, who is treated differently from one member of an unmarried different-sex couple who wishes to adopt the other partner’s child. However, as all three of the applicants enjoy family life together (see paragraph 96 above) and the adoption request was aimed at obtaining legal recognition of that family life, the Court considers that all three applicants are directly affected by the difference in treatment in issue and may therefore claim to be victims of the alleged violation.",
"128. Finally, the Government advanced another argument, namely that the legal impossibility of granting the applicants’ adoption request was not discriminatory as it was not based on the first and third applicants’ sexual orientation. They submitted that Article 182 § 2 of the Civil Code, which made it impossible for a woman to adopt a child while the legal ties with the child’s mother were maintained, applied as a general rule. That rule would also prohibit an aunt from adopting her nephew while his relationship with his mother remained intact.",
"129. The Court is not convinced by this argument. The applicants claimed that they were treated differently from an unmarried heterosexual couple with regard to the possibility of obtaining legal recognition of their family life through second-parent adoption. The Court notes firstly that the relationship between two adult sisters or between an aunt and her nephew does not in principle fall within the notion of “family life” within the meaning of Article 8 of the Convention. Secondly, even if it did, the Court has already held that the relationship between two sisters living together is qualitatively of a different nature to the relationship of a couple, including a same-sex couple (see, mutatis mutandis, Burden, cited above, § 62). Consequently, Article 182 § 2 of the Civil Code does not affect other persons in the same way as it affects the applicants, whose family life is based on a same-sex couple.",
"130. Having regard to all the considerations set out above, the Court finds that there was a difference in treatment between the applicants and an unmarried different-sex couple in which one partner sought to adopt the other partner’s child. That difference was inseparably linked to the fact that the first and third applicants formed a same-sex couple, and was thus based on their sexual orientation.",
"131. The present case is therefore to be distinguished from Gas and Dubois (cited above, § 69), in which the Court found that there was no difference in treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second-parent adoption was not open to either of them.",
"Legitimate aim and proportionality",
"132. Although it follows from the considerations set out above (see, in particular, paragraphs 116 and 126), the Court deems it appropriate to stress the fact that the present case does not concern the question whether or not the applicants’ adoption request should have been granted in the circumstances of the case. Consequently, it is not concerned with the role of the second applicant’s father or whether there were any reasons to override his refusal to consent. All these issues would be for the domestic courts to decide, were they in a position to examine the merits of the adoption request.",
"133. The issue before the Court is precisely the fact that they were not in such a position in the applicants’ case, as adoption of the second applicant by his mother’s same-sex partner was in any case legally impossible in accordance with Article 182 § 2 of the Civil Code. By contrast, the domestic courts would have been required to examine the merits of the adoption request had it concerned second-parent adoption in an unmarried heterosexual couple.",
"134. Although the present case may be seen against the background of the wider debate on same-sex couples’ parental rights, the Court is not called upon to rule on the issue of second-parent adoption by same-sex couples as such, let alone on the question of adoption by same-sex couples in general. What it has to decide is a narrowly defined issue of alleged discrimination between unmarried different-sex couples and same-sex couples in respect of second-parent adoption.",
"135. The Court reiterates that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require a State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. While Article 8 does not guarantee a right to adopt, the Court has already held, in respect of adoption by a single homosexual, that a State which creates a right going beyond its obligations under Article 8 of the Convention may not apply that right in a manner which is discriminatory within the meaning of Article 14 (see E.B. v. France, cited above, § 49).",
"136. In the context of the present case, the Court notes that there is no obligation under Article 8 of the Convention to extend the right to second-parent adoption to unmarried couples (see Gas and Dubois, cited above, §§ 66-69; see also Emonet and Others, cited above, §§ 79-88). Nonetheless, Austrian law allows second-parent adoption in unmarried different-sex couples. The Court therefore has to examine whether refusing that right to (unmarried) same-sex couples serves a legitimate aim and is proportionate to that aim.",
"137. Both the domestic courts and the Government argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. As the Regional Court observed in its judgment of 21 February 2006, the provisions in issue aimed to protect the “traditional family”. Austrian law was based on the principle that, in accordance with biological reality, a minor child should have two persons of opposite sex as parents. Thus the decision not to provide for a child to be adopted by the same-sex partner of one of the parents, with the result of severing the relationship with the opposite-sex parent, served a legitimate aim. Similarly, the Supreme Court, in its judgment of 27 September 2006, noted that the primary aim of adoption was to provide children who had no parents or whose parents were not able to care for them with responsible caregivers. That aim could only be achieved by recreating the situation of a biological family as far as possible. In short, the domestic courts and the Government relied on the protection of the traditional family, based on the tacit assumption that only a family with parents of different sex could adequately provide for a child’s needs.",
"138. The Court has accepted that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Karner, cited above, § 40, and Kozak, cited above, § 98). It goes without saying that the protection of the interests of the child is also a legitimate aim. It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality was adhered to.",
"139. The Court reiterates the principles developed in its case-law. The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it (see Karner, § 41, and Kozak, § 98, both cited above). Also, given that the Convention is a living instrument, to be interpreted in present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life (see Kozak, cited above, § 98).",
"140. In cases in which the margin of appreciation is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require the measure chosen to be suitable in principle for achievement of the aim sought. It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people, in this instance persons living in a homosexual relationship, from the scope of application of the provisions in issue (see Karner, § 41, and Kozak, § 99, both cited above).",
"141. Applying the case-law cited above, the Court notes that the burden of proof is on the Government. It is for the Government to show that the protection of the family in the traditional sense and, more specifically, the protection of the child’s interests require the exclusion of same-sex couples from second-parent adoption, which is open to unmarried heterosexual couples.",
"142. The Court would repeat that Article 182 § 2 of the Civil Code contains an absolute, albeit implicit, prohibition on second-parent adoption for same-sex couples. The Government did not adduce any specific argument, any scientific studies or any other item of evidence to show that a family with two parents of the same sex could in no circumstances adequately provide for a child’s needs. On the contrary, they conceded that, in personal terms, same-sex couples could be as suitable or unsuitable as different-sex couples when it came to adopting children. Furthermore, the Government stated that the Civil Code was not aimed at excluding same-sex partners from second-parent adoption. Nonetheless, they stressed that the legislature had wished to avoid a situation in which a child had two mothers or two fathers for legal purposes. The explicit exclusion of second-parent adoption in same-sex couples had only been introduced by the Registered Partnership Act in 2010, which had not been in force when the present case was determined by the domestic courts and was therefore not relevant in the present case.",
"143. The Court has already dealt with the argument that the Civil Code does not aim specifically to exclude same-sex partners (see paragraphs 128 and 129 above). Regarding the Registered Partnership Act, the Court agrees that it is not directly in issue in the present case. It may nevertheless be of relevance in so far as it may shed light on the reasons underlying the prohibition of second-parent adoption in same-sex couples. However, the explanatory report on the draft law (see paragraph 42 above) only states that section 8(4) of the Act was included as a result of repeated requests made during the consultation procedure. In other words, it merely reflects the position of those sectors of society which are opposed to the idea of opening up second-parent adoption to same-sex couples.",
"144. The Court would add that the Austrian legislation appears to lack coherence. Adoption by one person, including one homosexual, is possible. If he or she has a registered partner, the latter has to consent, in accordance with the amendment to Article 181 § 1, sub-paragraph 2, of the Civil Code, which was introduced together with the Registered Partnership Act (see paragraph 40 above). The legislature therefore accepts that a child may grow up in a family based on a same-sex couple, thus accepting that this is not detrimental to the child. Nevertheless, Austrian law insists that a child should not have two mothers or two fathers (see, mutatis mutandis, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 78, ECHR 2002 ‑ VI, where the Court also took into consideration the lack of coherence of the domestic legal system).",
"145. The Court finds force in the applicants’ argument that de facto families based on a same-sex couple exist but are refused the possibility of obtaining legal recognition and protection. The Court observes that in contrast to individual adoption or joint adoption, which are usually aimed at creating a relationship with a child previously unrelated to the adopter, second-parent adoption serves to confer rights vis-à-vis the child on the partner of one of the child’s parents. The Court itself has often stressed the importance of granting legal recognition to de facto family life (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 119, 28 June 2007; see also, in the context of second-parent adoption, Eski, cited above, § 39, and Emonet and Others, cited above, §§ 63-64).",
"146. All the above considerations – the existence of de facto family life between the applicants, the importance of having the possibility of obtaining legal recognition thereof, the lack of evidence adduced by the Government in order to show that it would be detrimental to the child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes, and especially their admission that same-sex couples may be as suited for second-parent adoption as different-sex couples – cast considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples arising out of Article 182 § 2 of the Civil Code. Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favour of allowing the courts to carry out an examination of each individual case. This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments (see, in particular, paragraph 49 above, and E.B. v. France, cited above, § 95).",
"147. The Government advanced another argument to justify the difference in treatment complained of. Relying on Article 8 of the Convention, they asserted that the margin of appreciation was a wide one in the sphere of adoption law, which had to strike a careful balance between the interests of all the persons involved. In the present context it was even wider, as there was no European consensus on the issue of second-parent adoption by same-sex couples.",
"148. The Court observes that the breadth of the State’s margin of appreciation under Article 8 of the Convention depends on a number of factors. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see, as recent examples, S.H. and Others v. Austria, cited above, § 94, and A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010). However, the Court reaffirms that when it comes to issues of discrimination on the grounds of sex or sexual orientation to be examined under Article 14, the State’s margin of appreciation is narrow (see paragraph 99 above).",
"149. Furthermore, and solely in order to respond to the Government’s assertion that no European consensus exists, it has to be borne in mind that the issue before the Court is not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of this type of adoption (see paragraph 134 above). Consequently, only those ten Council of Europe member States which allow second-parent adoption in unmarried couples may be regarded as a basis for comparison. Within that group, six States treat heterosexual couples and same-sex couples in the same manner, while four adopt the same position as Austria (see the comparative-law information at paragraph 57 above). The Court considers that the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States.",
"150. In the Court’s view, the same holds true for the 2008 Convention on the Adoption of Children. Firstly, it notes that this Convention has not been ratified by Austria. Secondly, given the low number of ratifications so far, it may be open to doubt whether the Convention reflects common ground among European States at present. In any event, the Court notes that Article 7 § 1 of the 2008 Convention on the Adoption of Children provides that States are to permit adoption by two persons of different sex (who are married or, where that institution exists, are registered partners) or by one person. Under Article 7 § 2, States are free to extend the scope of the Convention to same-sex couples who are married or have entered into a registered partnership, as well as “to different-sex couples and same-sex couples who are living together in a stable relationship”. This indicates that Article 7 § 2 does not mean that States are free to treat heterosexual and same-sex couples who live in a stable relationship differently. The Committee of Ministers’ Recommendation of 31 March 2010 (CM/Rec (2010)5) appears to point in the same direction: paragraph 23 calls on member States to ensure that the rights and obligations conferred on unmarried couples apply in a non-discriminatory way to both same-sex and different-sex couples. In any event, even if the interpretation of Article 7 § 2 of the 2008 Convention were to lead to another result, the Court reiterates that States retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010).",
"151. The Court is aware that striking a balance between the protection of the family in the traditional sense and the Convention rights of sexual minorities is in the nature of things a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition (see Kozak, cited above, § 99). However, having regard to the considerations set out above, the Court finds that the Government have failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction is therefore incompatible with the Convention.",
"152. The Court emphasises once more that the present case does not concern the question whether the applicants’ adoption request should have been granted in the circumstances of the case. It concerns the question whether the applicants were discriminated against on account of the fact that the courts had no opportunity to examine in any meaningful manner whether the requested adoption was in the second applicant’s interests, given that it was in any case legally impossible. In this context, the Court refers to recent judgments in which it found a violation of Article 14 taken in conjunction with Article 8 because the father of a child born outside marriage could not obtain an examination by the domestic courts of whether the award of joint custody to both parents or sole custody to him was in the child’s interests (see Zaunegger v. Germany, no. 22028/04, §§ 61-63, 3 December 2009, and Sporer v. Austria, no. 35637/03, §§ 88-90, 3 February 2011).",
"153. In conclusion, the Court finds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"154. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"155. The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage.",
"156. The Government asserted that an award of compensation for non-pecuniary damage was not justified in the circumstances. They pointed out in particular that the applicants were not prevented from living together as they wished. In any case, the sum claimed by the applicants was not in line with the awards made in comparable cases.",
"157. The Court considers that the applicants must have suffered non-pecuniary damage that is not sufficiently compensated for by the mere finding of a violation of Article 14 taken in conjunction with Article 8. Furthermore, the Court considers that the applicants were affected as a family by the violation found. It therefore finds it appropriate to make a joint award in respect of non-pecuniary damage. Making its assessment on an equitable basis and having regard to the sum awarded in a comparable case (see E.B. v. France [GC], no. 43546/02, 22 January 2008, § 102), it awards the applicants jointly EUR 10,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"158. The applicants also claimed a total amount of EUR 49,680.94 under the head of costs and expenses. This amount was composed of EUR 6,156.59 for costs incurred before the domestic courts and EUR 43,524.35 for those incurred before the Court. The sums included value-added tax (VAT).",
"159. The costs of the domestic proceedings included EUR 2,735.71 in respect of the proceedings before the Constitutional Court and EUR 3,420.88 in respect of the proceedings before the civil courts. The applicants argued that the proceedings before the Constitutional Court had been necessary, as it had only become clear through the Constitutional Court’s decision that they would be able to apply to the civil courts for approval of the adoption agreement without the risk that the application would result in a loss of parental rights for the third applicant.",
"160. The costs of the Convention proceedings included EUR 889.08 in travel and accommodation costs incurred by the applicants’ counsel in attending the hearing before the First Section and EUR 913.22 in travel and accommodation costs incurred in attending the hearing before the Grand Chamber. They further included a total amount of EUR 1,832.30 in respect of compensation for loss of time in connection with counsel’s travel to and stay in Strasbourg to attend the two hearings. The remainder of the costs claimed were lawyer fees. The applicants pointed out that the proceedings before the Grand Chamber were not merely a repetition of the Chamber proceedings, in particular as the Court had put a number of further questions to the parties and a number of third-party comments had had to be studied and addressed at the hearing.",
"161. The Government took the view that the costs for the proceedings before the Constitutional Court had not been necessarily incurred. They argued that in the light of the Constitutional Court’s case-law on Article 140 of the Federal Constitution, an individual could lodge a direct complaint with the Constitutional Court only if the alleged violation resulted from a direct application of the law. In the present case, the applicants had had an opportunity to bring their case before the civil courts.",
"162. In respect of the Convention proceedings, the Government submitted that the costs claimed were excessive as a whole. Furthermore, they asserted that the applicants had been able to rely to a large extent on arguments already submitted in the domestic proceedings, and that in the proceedings before the Grand Chamber they had been able to rely on their submissions before the Chamber.",
"163. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In respect of the domestic proceedings, the Court considers that the costs claimed for the proceedings before the Constitutional Court were not necessarily incurred. It notes in particular that the Constitutional Court dismissed the applicants’ complaint as inadmissible. It therefore only awards the costs claimed in respect of the proceedings before the civil courts, namely EUR 3,420.88. Turning to the costs of the Convention proceedings the Court, regard being had to the documents in its possession and the above criteria, considers it appropriate to award EUR 25,000. In total, the Court awards the applicants EUR 28,420.88 under the head of costs and expenses.",
"C. Default interest",
"164. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
63 | A.H. and Others v. Russia | 17 January 2017 | These applications were brought by 45 US nationals: both on their own behalf, and on behalf of 27 Russian children. In late 2012, the US applicants had been in the final stages of procedures to adopt the children, many of whom required specialist medical care. However, after a Russian law had been passed which banned adoptions of Russians by US nationals5, all of these procedures were abruptly halted. The applicants claimed that, because the proceedings had been at a late stage, a bond had already formed between the adults and children. They complained that the ban had violated their right to family life, that it had been discriminatory, and that it had amounted to ill-treatment of the children (as it prevented them from receiving specialist medical care in the US). | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the adoption ban had unlawfully discriminated against the prospective parents6. In particular, this was because it had prevented the adoption of Russian children by the US applicants purely on the basis of the prospective parents’ nationality; and because such a ban had been disproportionate to the Russian Government’s stated aims, given that it had been retroactive, indiscriminate, and was applied irrespective of the status of proceedings or the individual circumstances. However, the Court found inadmissible the applicants’ complaint that the ban had caused ill-treatment of the children, as it found that they had received adequate medical treatment in Russia. | Parental Rights | Adoption | [
"I. THE CIRCUMSTANCES OF THE CASE",
"1. General background",
"(a) Adoption procedure",
"7. The US nationals ( “the US applicants ” ) started proceedings for the adoption of children from Russia between 2010 and 2012. They had complied with the requirements set by the United States authorities, having obtained favourable appraisals of their living and financial conditions and their suitability to adopt a child. Some of the applicants had had to comply with additional requirements laid down in the Agreement between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children (“Bilateral Agreement on Adoption”) upon its entry into force on 1 November 2012. They then applied to the competent Russian authorities who, except in those cases where the adoption proceedings had focussed on a particular child from the outset, provided them with information concerning the children who were available for adoption.",
"8. In most cases the US applicants received a positive decision from the Russian authorities regarding both the impossibility of placing the child in a Russian family and their suitability to become adoptive parents. As part of the adoption procedure, they obtained a referral to visit the child concerned, which enabled them to spend several days with him or her at the respective orphanage. They visited the children and reaffirmed their formal agreement to adopt them. In some cases, according to the US applicants, they had formed a bond with the child even before initiating the adoption procedure, and one case concerned the adoption of the brother of a previously adopted girl (cases nos. 23890/13, 37173/13 and 42340/13 respectively; see the specific circumstances below). In such cases the adoption procedure referred to a particular child from the outset. Many of the prospective adoptive children suffer from serious health issues and require specialist medical care.",
"9. By the end of 2012 most of the US applicants had completed all the requisite steps of the adoption procedure prior to submitting the adoption application to a court. However, on 21 December 2012 the Russian State Duma adopted the Federal Law no. 272-FZ on Measures in respect of Persons Involved in a Breach of Fundamental Human Rights and Freedoms, Rights and Freedoms of Nationals of the Russian Federation (“Law no. 272 ‑ FZ”), which, inter alia, banned the adoption of Russian children by nationals of the United States. The law entered into force on 1 January 2013.",
"10. Adoption proceedings were halted in respect of those US applicants who had not submitted an adoption application to a court before the entry into force of Law no. 272-FZ.",
"11. In respect of those US applicants who had submitted an adoption application to a court but had not attended a hearing before the entry into force of Law no. 272-FZ, the courts discontinued the adoption proceedings, relying on Law no. 272-FZ. Some of the applicants appealed. Their appeals were dismissed.",
"12. Applications for adoption submitted by US nationals after 1 January 2013 were rejected on procedural grounds, with similar reference to Law no. 272-FZ. Where an application had been submitted on behalf of the US applicants by an adoption agency, it was rejected on the grounds that the agency could not submit an application to the court because the activities of such agencies had been banned. Where the application had been submitted by some other kind of representative, it was rejected because it should have been submitted by such an adoption agency only.",
"13. The US applicants were subsequently removed from the State databank containing information on prospective adoptive parents, meaning that they could no longer be considered as such.",
"14. After spring 2013 some of the prospective adoptive children were transferred for adoption by different families or placed in foster families.",
"(b) Circumstances surrounding the entry into force of the Bilateral Agreement on Adoption and Law no. 272-FZ",
"15. On 13 July 2011 the United States and the Russian Federation signed the Bilateral Agreement on Adoption setting out the procedure for intercountry adoption between the two States. It entered into force on 1 November 2012.",
"16. On 21 December 2012 the Russian State Duma adopted Law no. 272-FZ ‒ which was signed by the President on 28 December 2012 ‒ also known as the “Anti-Magnitsky Law” or the “Dima Yakovlev Law” due to the circumstances underlying its adoption. The law has been described as a response to the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 passed by the United States Congress in November / December 2012 and signed by the US President on 14 December 2012 ( the “ Magnitsky Act”). The Magnitsky Act imposed sanctions on the Russian officials who were thought to be responsible for the death of Sergei Magnitsky, a lawyer who had exposed alleged large-scale tax fraud involving State officials and subsequently died in custody. The Magnitsky Act prohibited the Russian officials from entering the United States and using the United States ’ banking system. The list of the eighteen individuals concerned was made public by the Administration of the President of the United States.",
"17. The Russian authorities ’ response involved the passing of a similar act in respect of United States nationals responsible for gross human rights violations, prohibiting their entry into Russia and freezing their assets within Russia. However, Section 4 § 1 of Law no. 272 ‑ FZ also introduced a ban on the adoption of Russian children by United States nationals. The introduction of that provision was prompted by the death in 2008 of Dima Yakovlev, a Russian toddler adopted by United States nationals. He was left alone for nine hours strapped in his adoptive father ’ s car after the latter forgot to take him to his day-care centre. The father was eventually acquitted of involuntary manslaughter. This news created a stir in the Russian media and resulted in the highlighting of a number of abuse cases involving Russian children adopted by United States nationals, leading to calls from certain Russian authorities to restrict or end adoptions by US nationals.",
"18. On 28 December 2012 the United States Department of State released a statement concerning the adoption of Law no. 272-FZ which read, insofar as relevant:",
"“We deeply regret Russia ’ s passage of a law ending inter-country adoptions between the United States and Russia and restricting Russian civil society organizations that work with American partners. American families have adopted over 60,000 Russian children over the past 20 years, and the vast majority of these children are now thriving thanks to their parents ’ loving support. The Russian government ’ s politically motivated decision will reduce adoption possibilities for children who are now under institutional care. We regret that the Russian government has taken this step rather than seek to implement the bilateral adoption agreement that entered into force in November. We are further concerned about statements that adoptions already underway may be stopped and hope that the Russian government would allow those children who have already met and bonded with their future parents to finish the necessary legal procedures so that they can join their families.”",
"19. On 1 January 2013 Law no. 272-FZ entered into force. On the same date the Russian Ministry of Foreign Affairs informed the US Embassy in Moscow that, pursuant to Section 4 § 2 of Law no. 272-FZ, Russia was terminating the Bilateral Agreement on Adoption. Pursuant to Article 17 of the Bilateral Agreement on Adoption, it should have remained in force until one year from the date on which one of the States Parties informed the other Party of its intention to terminate the Agreement, and this move therefore caused confusion regarding the validity of the agreement and the outcome of the pending adoption cases involving prospective adoptive parents from the United States.",
"20. During a briefing on 8 January 201 3, a United States Department of State spokesperson announced that Russia had informed the United States of its intention to suspend the Bilateral Adoption Agreement.",
"21. On 10 January 2013 news agencies including the BBC and RIA Novosti reported that the Russian President ’ s Press Secretary had stated that the Bilateral Agreement on Adoption was still in force on that date and that it would remain valid until early January 2014. On the afternoon of the same day the Russian Ministry of External Affairs posted a comment on its website stating that Russia had not merely suspended the Bilateral Agreement on Adoption but had terminated it, and that a communication to this effect had been handed over to the United States Embassy in Moscow on 1 January 2013.",
"22. On 13 January 2013 about twenty thousand people gathered on the streets of Moscow to take part in an action called March Against Scoundrels to protest against Law no. 272-FZ.",
"23. The law was also criticised by human rights organisations including Amnesty International and Human Rights Watch and received numerous negative reactions from the media, including Time, The Economist and The Guardian. Most of the critical commentators argued that the law was politically motivated and detrimental to the children ’ s interests.",
"24. On 15 January 2013 forty-eight members of the United States Congress sent a letter to the President of Russia, Vladimir Putin, on behalf of the United States families affected by Law no. 272-FZ. The letter requested exemption for families who were in the final stages of the adoption procedure and invited Russia to re-join the Bilateral Agreement on Adoption.",
"25. On 22 January 2013 the Russian Supreme Court issued a letter instructing the lower courts to allow the transfer of adopted Russian children into families of United States nationals where the adoption decision had been taken prior to 1 January 2013, even if it had entered into force after that date.",
"26. Proceedings in all cases involving prospective adoptive parents from the United States in which a decision on adoption had not been delivered before 1 January 2013 were halted, irrespective of the status of the proceedings.",
"27. On 2 July 2013 the Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE) adopted a Resolution on Intercountry Adoption in which it called on member States “to recognize the foundational bond between prospective adoptive parents and the child and to honor and protect these nascent families” and urged them “to resolve differences, disputes, and controversies related to intercountry adoptions in a positive and humanitarian spirit” so as “to avoid any general, indiscriminate disruption of intercountry adoptions already in progress that could jeopardize the best interests of the child, harm the nascent family, or deter prospective adoptive parents from pursuing an intercountry adoption” see paragraph 301 below). Although Russia was not specifically referred to in the Resolution, it was introduced by US Senator Roger Wicker in direct response to the ban on adoptions by United States nationals.",
"28. According to a news report by RIA Novosti of 5 July 2013, the Russian Ministry of External Affairs dismissed as futile any attempts by the OSCE Parliamentary Assembly to make Russia annul the previously adopted decisions concerning intercountry adoption, the latter being in full compliance with international law.",
"2. Specific circumstances",
"(a) Application no. 6033/13",
"29. Application no. 6033/13 was lodged on 22 January 2013 by three groups of applicants.",
"(i) First group of applicants",
"30. A.J.H., born on 16 May 1976, and J.A.H., born on 26 June 1977, who live in Vaughn, Montana, United States (the US applicants ), and D.M., who was born on 17 August 2009 and lives in Lobnya, the Moscow Region.",
"31. D.M. suffers, in particular, from Down syndrome, delayed psychological and speech development, congenital heart disease and insufficient blood flow. He was born prematurely.",
"32. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 6 August 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"33. On 24 September 2012 the US applicants obtained a referral to visit D.M. from the Ministry of Education and Science. They visited him every day between 24 and 28 September 2012 and again between 10 and either 13 or 14 January 2013 [2]. Each visit lasted between an hour and an hour and a half.",
"34. On 27 September 2012 the US applicants formally agreed to adopt D.M.",
"35. On 15 November 2012 the adoption application was submitted to the Moscow Regional Court. The hearing initially scheduled for 21 December 2012 was rescheduled for 15 January 2013 at the applicants ’ request.",
"36. On 10 January 2013 the US applicants arrived in Russia and visited D.M. every day between 10 and either 13 or 14 January 2013 [3].",
"37. On 15 January 2013 the US applicants appeared before the court. However, the hearing was adjourned at the request of the Ministry of Education of the Moscow Region, which cited a lack of guidance from the Supreme Court of Russia on the application of Law no. 272-FZ. A new hearing was scheduled for 21 January 2013.",
"38. On 21 January 2013 the US applicants appeared before the court. However, the Moscow Regional Court postponed the hearing until 11 February 2013 in response to a similar request from the Ministry of Education of the Moscow Region.",
"39. On 22 January 2013 the US applicants left for the United States. They booked a flight for 9 February 2013 in order to be present at the next hearing.",
"40. On 23 January 2013 the US applicants ’ representative, Ms Zakharina [4], was informed that the hearing had been rescheduled for an earlier date, namely 30 January 2013. This left the US applicants insufficient time to reschedule their trip to Russia, and they were unable to be present at the hearing.",
"41. On 30 January 2013 the Moscow Regional Court discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt D.M. The US applicants appealed.",
"42. On 14 May 2013 the Moscow Regional Court upheld the decision of 30 January 2013. The US applicants lodged cassation appeal.",
"43. On 26 August 2013 the Moscow Regional Court refused leave to have the cassation appeal examined by the Presidium.",
"44. According to the Government, D.M. has been placed with a foster family.",
"(ii) Second group of applicants",
"45. G.D.C., born on 14 August 1980 and who lives in Salt Lake City, Utah, United States ( “ the US applicant ” ), and E.G., who was born on 28 May 2010 and lives in St. Petersburg.",
"46. E.G. is developmentally delayed, HIV positive and suffers from ectopic dermatitis.",
"47. The US applicant initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 8 November 2012. She was assisted by the authorised adoption agency “Hand in Hand”.",
"48. On 28 November 2012 the US applicant obtained a referral to visit E.G. from the Ministry of Education and Science. She visited her every day between 28 November and 1 December 2012. Each visit lasted approximately two hours.",
"49. On 3 December 2012 the US applicant formally agreed to adopt E.G.",
"50. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court.",
"51. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that G.D.C. could not be represented by her representative, E.F., because an application of this kind could only be submitted by an authorised agency. The US applicant appealed.",
"52. On 5 March 2013 the US applicant tried to visit E.G. at the orphanage but was denied access.",
"53. On 12 March 2013 the US applicant resubmitted the application through another representative, O.T.",
"54. On 21 March 2013 the second application was rejected for the same reasons. The US applicant appealed.",
"55. On 2 and 12 April 2013 the St. Petersburg City Court dismissed the appeals against its decisions of 13 February and 21 March 2013 respectively.",
"56. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"57. According to the Government, E.G. has been placed with a foster family.",
"(iii) Third group of applicants",
"58. J.M., born on 1 June 1981, and A.M., born on 14 April 1982, who live in Gainesville, Georgia, United States (the US applicants ), and V.T., who was born on 30 September 2008 and lives in Mytischy, the Moscow Region.",
"59. V.T. is developmentally delayed, he suffers from Down syndrome, hearing loss, heterotropy, intrauterine hypoxia, congenital heart disease (he underwent heart surgery in 2009 where an electric cardiostimulator was implanted), and a number of other illnesses.",
"60. The US applicants, who have two biological children and one adopted child, initiated the procedure to adopt another child in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 17 August 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"61. On 1 October 2012 the US applicants obtained a referral to visit V.T. from the Ministry of Education and Science. They visited him every day between 1 and 5 October 2012 and again between 17 and 21 January 2013. Each visit lasted four hours.",
"62. On 3 October 2012 the US applicants formally agreed to adopt V.T.",
"63. On 30 November 2012 the adoption application was submitted to the Moscow Regional Court. The hearing initially scheduled for 22 January 2013 was rescheduled for 12 February 2013 at the request of the Ministry of Education. However, on the same date the prosecutor requested that the proceedings be speeded up due to the uncertainty over the child ’ s fate. Eventually the hearing was rescheduled for 31 January 2013.",
"64. On 31 January 2013 the Moscow Regional Court discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt V.T. The US applicants appealed.",
"65. On 14 May 2013 the Moscow Regional Court upheld the decision of 31 January 2013 on appeal. The US applicants lodged cassation appeal.",
"66. On 10 December 2013 the Moscow Regional Court refused leave to have the cassation appeal examined by the Presidium.",
"67. On 22 April 2013 the US applicants were removed from the State databank as prospective adoptive parents, an action of which they were not informed until 26 April 2013.",
"68. According to the Government, V.T. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about him.",
"(b) Application no. 8927/13",
"69. Application no. 8927/13 was lodged on 4 February 2013 by J.J., born on 12 December 1983, and Jn.J., born on 25 January 1984, who live in Dover, New Jersey, United States (the US applicants ), and A.M., who was born on 27 January 2007 and lives in Moscow.",
"70. A.M. is HIV positive and suffers from developmental disorders, strabismus and enuresis.",
"71. The US applicants initiated the adoption procedure in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 16 November 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"72. On 26 November 2012 the US applicants obtained a referral to visit A.M. from the Ministry of Education and Science. They visited her every day between 27 and 30 November 2012. Each visit lasted two to three hours.",
"73. On 28 December 2012 the adoption application was submitted to the Moscow Regional Court. The hearing was first scheduled for 8 February 2013, but then rescheduled for 31 January 2013. As it left the US applicants insufficient time to reschedule their trip to Russia, they asked the court to postpone the hearing.",
"74. On 31 January 2013 the Moscow Regional Court rejected the request to postpone the hearing and discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt V.T. The US applicants appealed.",
"75. On 14 May 2013 the Moscow Regional Court upheld the decision of 31 January 2013 on appeal.",
"76. On 22 April 2013 the US applicants were removed from the State databank as prospective adoptive parents.",
"77. According to the Government, A.M. has been placed with a foster family.",
"(c) Application no. 10549/13",
"78. Application no. 10549/13 was lodged on 11 February 2013 by J.E.L., born on 1 June 1962 and A.M.L., born on 4 February 1972, who live in Williamsport, Pennsylvania, United States (the US applicants ), and S.T., who was born on 29 November 2011 and lives in Volgograd.",
"79. S.T. had prenatal contact with HIV and hepatitis C and suffers from a developmental disorder.",
"80. The US applicants initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 13 June 2012. They were assisted by the authorised adoption agency “Christian World Adoptions, Inc.”.",
"81. On 23 October 2012 the US applicants obtained a referral to visit S.T. from the Ministry of Education and Science. They visited her twice a day between 24 and 29 October 2012. Each visit lasted two hours.",
"82. On 3 December 2012 the adoption application was submitted to the Volgograd Regional Court.",
"83. On 1 February 2013 the adoption procedure was discontinued on the grounds that under Law no. 272-FZ the US applicants had no right to adopt S.T.",
"84. On 15 February 2013 the US applicants appealed. On 20 February 2013 the Volgograd Regional Court stayed the appeal proceedings and instructed the US applicants to correct certain deficiencies by 20 March 2013. On 3 April 2013 the appeal statement was returned to the US applicants. On 25 April 2013 they resubmitted the appeal. On 7 May 2013 the Volgograd Regional Court extended the time-limit for appeal.",
"85. On 20 June 2013 the Volgograd Regional Court upheld the decision of 1 February 2013.",
"86. On 14 February 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"87. S.T. has been adopted by a different adoptive family.",
"(d) Application no. 12275/13",
"88. Application no. 12275/13 was lodged on 18 February 2013 by nine groups of applicants.",
"(i) First group of applicants",
"89. M.S.P., born on 15 May 1974, and A.N.P., born on 6 March 1980, who live in Papillon, Nebraska, United States (the US applicants ), and A.A., who was born on 21 June 2005 and lives in St. Petersburg.",
"90. A.A. suffers from Down syndrome, moderate mental deficiency, delay in physical development, strabismus, planovalgus deformity, and hyperbilirubinemia.",
"91. The US applicants initiated the adoption procedure in August 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 September 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"92. On 8 October 2012 the US applicants obtained a referral to visit A.A. from the Committee on Social Policy of the St. Petersburg Administration. They visited her on three days in October 2012. Each visit lasted between one and a half and two hours.",
"93. On 20 December 2012 the adoption application was submitted to the St. Petersburg City court.",
"94. On 24 December 2012 the application was returned to the US applicants ’ representative, E.F. In the court ’ s ruling, it was stated that it had been returned at E.F. ’ s request. According to the US applicants, they did not ask E.F. to withdraw the application, and she did not apply to the court to have it withdrawn. Rather, the court asked her to take it back. The US applicants were not informed of this ruling, but having learned about it, they filed a complaint against it, arguing that they had never requested their representative to withdraw the application and that the power of attorney did not empower her to do that. On 4 June 2013 the St. Petersburg City Court set aside the ruling of 24 December 2012. It appears that no further decisions were taken in the case.",
"95. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"96. According to the Government, A.A. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her.",
"(ii) Second group of applicants",
"97. D.S.G., born on 29 May 1974 and who lives in New York, New York, United States (the US applicant ), and O.N., who was born on 24 June 2011 and lives in St. Petersburg.",
"98. O.N. suffers from a mixed developmental disorder, atopic dermatitis, food allergies and hypermetria of both eyes with astigmatism.",
"99. The US applicant initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 9 October 2012. She was assisted by the authorised adoption agency “International Assistance Group, Inc.”.",
"100. On 24 December 2012 the US applicant obtained a referral to visit O.N. from the Committee on Social Policy of the St Petersburg Administration. She visited her twice a day between 24 and 28 December 2012. Each visit lasted two hours.",
"101. On 28 December 2012 the US applicant formally agreed to adopt O.N.",
"102. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court by the adoption agency.",
"103. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that as of 1 January 2013 the agency ’ s activity had been banned in Russia pursuant to Law no. 272-FZ. On 4 March 2013 the US applicant appealed.",
"104. On 25 March 2013 the appeal statement was returned to the US applicant without examination on the grounds that it had been lodged outside the applicable time-limit.",
"105. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"106. According to the Government, O.N. has been adopted by a different adoptive family.",
"(iii) Third group of applicants",
"107. B.C., born on 13 June 1965, and J.W.S., born on 4 January 1955, who live in Sag Harbor, New York, United States (the US applicants ), and A.R., who was born on 24 March 2010 and lives in St. Petersburg.",
"108. A.R. was abandoned by her parents, who suffered from substance addictions, at the age of eleven months. She is hepatitis C positive and suffers from a mixed developmental disorder and planovalgus deformity.",
"109. The US applicants had two children, a son and a daughter. After their daughter died of paediatric cancer at the age of twelve, they decided to adopt a child, since their son did not wish to be an only child. The US applicants initiated the adoption procedure in February 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 18 October 2012. They were assisted by the authorised adoption agency “International Assistance Group, Inc.”.",
"110. On 28 November 2012 the US applicants obtained a referral to visit A.R. from the Committee on Social Policy of the St Petersburg Administration. They visited her twice a day between 27 and 30 November 2012. Each visit lasted two hours.",
"111. On 3 December 2012 the US applicants formally agreed to adopt A.R.",
"112. On 10 February 2013 the adoption application was submitted to the St. Petersburg City Court by the adoption agency.",
"113. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that, as of 1 January 2013, the agency ’ s activity had been banned in Russia pursuant to Law no. 272-FZ.",
"114. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"115. According to the Government, A.R. has been adopted by a different adoptive family.",
"( iv) Fourth group of applicants",
"116. T.L.B.-S., born on 21 June 1968 and who lives in Oldtown, Maryland, United States (the US applicant ), and V.O., who was born on 7 August 2005 and lives in St. Petersburg.",
"117. V.O. suffers from Down syndrome, mental deficiency, umbilical hernia, planovalgus deformity, atopic dermatitis and hypermetria of a light degree.",
"118. The US applicant has two biological children and a son adopted from Russia. She decided to adopt another child and, having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 1 November 2012. The US applicant was assisted by the authorised adoption agency “Small World Adoption Foundation of Missouri Inc.”.",
"119. On 12 November 2012 the US applicant obtained a referral to visit V.O. from the Committee on Social Policy of the St Petersburg Administration. She visited her daily on several days in November 2012. Each visit lasted between one and a half and two hours.",
"120. On 19 November 2012 the US applicant formally agreed to adopt V.O.",
"121. According to the US applicant, she did not have sufficient time to prepare all the necessary documents in order to be able to submit the adoption application to a court before the entry into force of Law no. 272 ‑ FZ. After its entry into force she realised that this would be futile, although she remained willing to adopt V.O.",
"122. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"123. According to the Government, V.O. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her.",
"(v) Fifth group of applicants",
"124. S.M., born on 12 May 1966, and K.M., born on 30 April 1968, who live in Lake Elsinore, California, United States (the US applicants ), and V.G., who was born on 19 December 2005 and lives in St. Petersburg.",
"125. V.G. suffers from Down syndrome, moderate mental deficiency, strabismus and hypermetria.",
"126. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 9 February 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"127. On 18 July 2012 the US applicants obtained a referral to visit V.G. They visited her every day between 18 and 20 July 2012. Each visit lasted three hours.",
"128. On 25 July 2012 the US applicants formally agreed to adopt V.G.",
"129. On 26 November 2012 the adoption application was submitted to a court by the US applicants ’ representative E.F. from the adoption agency.",
"130. According to the Government, on 30 November 201 2 [5] the St. Petersburg City Court stayed the proceedings and instructed the US applicants to rectify certain shortcomings by 30 December 201 2 [6]. In particular, they were asked to corroborate the powers of their representative to act as such in matters concerning adoption in view of the fact that the power of attorney had been issued to E.F. as a private person, whereas pursuant to Article 4 § 4 of the Bilateral Agreement on Adoption only authorised agencies could act as representatives. On 9 January 2013 the application was returned to E.F. on the grounds that the shortcomings had not been rectified.",
"131. According to the US applicants, they were never informed of any alleged shortcomings in their adoption application. Furthermore, several days before 1 January 2013 a judge had called E.F. and had asked her to withdraw the application, even though E.F. ’ s power of attorney did not authorise her to do so. Several days later E.F. found out that the application had been “lost” and the only record of submission was a note in the court ’ s register.",
"132. The US applicants also allege that on 11 January 2012 the head of a branch of adoption agency “Hand in Hand” had asked the Chairman of the St. Petersburg Committee on Social Policy for permission to continue its activity as an adoption agency in St. Petersburg through its legal representatives E.F. and I.Z. The permission was granted, and on 11 January 2012 the adoption agency “Hand in Hand” issued E.F. with a power of attorney valid for three years to represent the interests of adoptive parents before the courts of St. Petersburg.",
"133. According to the Government, the St. Petersburg Committee on Social Policy did not have the competence to authorise the activity of an adoption agency. The matter fell within the exclusive competence of the Ministry of Education. E.F. and I.Z. were registered at the Ministry of Education as employees of the adoption agency “Hand in Hand” during the period 2009-11.",
"134. According to the US applicants, on 12 and 28 March and 3 April 2013 their representative O.T. requested a copy of the St. Petersburg City Court ’ s ruling on their application. However, the file was not in the registry and she was not presented with a copy. On 11 April 2013 O.T. resubmitted her request to Judge G. and the President of the St. Petersburg City Court. In a letter of 16 April 2013 Judge G. refused to provide her with a copy of the ruling. On 22 April 2013 O.T. filed a complaint against the refusal. It is not clear whether the complaint has been examined.",
"135. According to the Government, O.T. ’ s request was refused as there were no procedural means whereby to provide persons acting as intermediaries in adoption proceedings with copies of documents.",
"136. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"137. According to the Government, V.G. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her.",
"(vi) Sixth group of applicants",
"138. Q.S., born on 8 April 1979, and W.S., born on 6 May 1980, who live in Salt Lake City, Utah, United States (the US applicants ), and D.K., who was born on 26 May 2011 and lives in Perm.",
"139. D.K. suffers from Down syndrome, psychomotor development delay, anomaly in heart development, partial atrophy of optic discs, astigmatism and cytomegalovirus infection.",
"140. The US applicants initiated the adoption procedure in July 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 11 December 2012. They were assisted by the authorised adoption agency “Global Adoption Services Inc.”.",
"141. On 19 December 2012 the US applicants obtained a referral to visit D.K. They visited her twice a day between 19 and 21 December 2012. Each visit lasted approximately two hours.",
"142. On 21 December 2012 the US applicants formally agreed to adopt D.K.",
"143. The adoption application was not submitted to the court. According to the US applicants, it would have been submitted if it had not been for the entry into force of Law no. 272-FZ.",
"144. According to the Government, on 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. According to the US applicants, they were never informed of this fact.",
"145. According to the Government, D.K. has been placed with a foster family.",
"(vii) Seventh group of applicants",
"146. S.A.K., born on 9 May 1960 and who lives in Chicago, Illinois, United States (the US applicant ), and K.R., who was born on 31 May 2009 and lives in St. Petersburg.",
"147. K.R. suffers from a mixed developmental disorder, planovalgus deformity, adenoids, hypertrophy of palatine tonsils, hepatosplenomegaly and physiological phimosis.",
"148. The US applicant has already adopted a girl from Russia. She decided to adopt another child and initiated the adoption procedure in May 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 9 October 2012. The US applicant was assisted by the authorised adoption agency “International Assistance Group Inc.”.",
"149. On 21 November 2012 the US applicant obtained a referral to visit K.R. from the Committee on Social Policy of the St Petersburg Administration. She visited her every day between 21 and 23 November 2012. Each visit lasted two hours.",
"150. On 27 November 2012 the US applicant formally agreed to adopt K.R.",
"151. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court by T. from the adoption agency.",
"152. On 13 February 2013 the court returned the application on the grounds that the activity of the adoption agency had been banned pursuant to Law no. 272-FZ. The US applicant appealed.",
"153. On 27 March 2013 the appeal statement was returned on the grounds that it had been submitted in breach of procedural rules. In particular, it failed to state whether the US applicant had been provided with a translation of the ruling and her signature had not been certified by a notary. The US applicant filed a complaint against this ruling.",
"154. On 20 June 2013 the complaint was returned without examination.",
"155. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"156. According to the Government, K.R. has been adopted by a different adoptive family.",
"(viii) Eighth group of applicants",
"157. C.B., born on 1 December 1967, and T.B., born on 23 October 1966, who live in Pittsburgh, Pennsylvania, United States (the US applicants ), and A.E.A., who was born on 22 August 2011 and lives in Perm.",
"158. A.E.A. suffers from delay of psychomotor and speech development delay, anomaly in heart development, umbilical hernia and had prenatal contact with HIV.",
"159. The US applicants initiated the adoption procedure in May 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 February 2012. They were assisted by the authorised adoption agency “Adopt a Child”.",
"160. On 19 November 2012 the US applicants obtained a referral to visit A.E.A. They visited her twice a day between 19 and 23 November 2012. Each visit lasted between one and a half and two hours.",
"161. The adoption application was not submitted to a court. According to the US applicants, after their visit to Russia in November 2012 they had to amend a number of documents in their adoption file so as to make it conform with the Bilateral Agreement on Adoption. However, Law no. 272 ‑ FZ left them no time to submit the adoption application to a court before its entry into force.",
"162. On 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"163. According to the Government, A.E.A. has been placed with a foster family.",
"(ix) Ninth group of applicants",
"164. J.R.V., born on 3 January 1973, and M.L.V., born on 27 May 1973, who live in Aurora, Colorado, United States (the US applicants ), and Dz.L., who was born on 13 July 2010 and lives in St. Petersburg.",
"165. On 4 April 2014 the US applicants ’ representative informed the Court that they wished to withdraw the application.",
"(e) Application no. 23890/13",
"166. Application no. 23890/13 was lodged on 5 April 2013 by M.W., born on 2 February 1961, and D.W., born on 17 March 1964, who live in Woodstock, Virginia, United States (the US applicants ), and M.K., who was born on 21 March 1998 and lives in Chelyabinsk.",
"167. M.K. was born prematurely. He suffers, in particular, from Russell ‑ Silver syndrome, light cognitive disorder, delay of neurological and behavioural development and chronic gastritis.",
"168. Between 2001 and 2012 the US applicants were involved in charity work in the Chelyabinsk Region. In particular, they helped with the renovation of an orphanage, where in 2008 they met M.K.",
"169. According to the US applicants, having developed a close relationship with M.K., in the winter of 2011-2012 they decided to adopt him and initiated the adoption procedure. They contacted about forty adoption agencies asking for assistance with the procedure. However, their attempts were unsuccessful as no adoption agency worked with the Chelyabinsk Region. For this reason they decided to proceed on their own, although the adoption agency Beacon House Adoption Services agreed to provide them with advice on the procedure.",
"170. In March 2012, during a consultation at the Ministry of Social Relations of the Chelyabinsk Region, the US applicants expressed their wish to adopt M.K. According to the US applicants, the ministry confirmed that there were no authorised adoption agencies operating in the Chelyabinsk Region and stated that the US applicants could proceed on their own. At the same time their adoption file was rejected on the grounds that the apostille on certain documents was incorrect and some additional documents were required.",
"171. In March 2012 the US applicants twice visited M.K. at the orphanage, with each meeting lasting three hours.",
"172. On 30 July 2012 the US applicants submitted to the Ministry of Social Relations of the Chelyabinsk Region a corrected set of documents for the adoption of M.K.",
"173. However, on 8 August 2012 the Minister of Social Relations of the Chelyabinsk Region informed the US applicants that, since the Bilateral Agreement on Adoption had been ratified, with effect from 10 August 2012 individual applications for adoption could not be accepted. For this reason he returned their application for non- compliance with the requirements set by Government Decree no. 654 of 4 November 2006 (see paragraph 318 below).",
"174. On 17 August 2012 the US applicants contacted the Head of the State databank, who wrongly informed them that the Bilateral Agreement on Adoption had not been ratified and that they could proceed with the adoption procedure on their own.",
"175. In a telephone conversation on 20 August 2012 the US applicants told the Ministry of Social Relations of the Chelyabinsk Region about the information received from the Head of the State databank. According to the ministry, it was awaiting official clarifications from the Head of the State databank to this effect.",
"176. On 22 August 2012 the US applicants again contacted the Ministry of Social Relations of the Chelyabinsk Region by telephone and were told that they could proceed with the adoption on their own.",
"177. On 22 August 2012 according to the US applicants and on 4 September 2012 according to the Government, the adoption file was resubmitted to the Ministry of Social Relations of the Chelyabinsk Region.",
"178. On 19 September 2012 the adoption file was returned and the US applicants were requested to amend certain documents and to enclose some additional documents.",
"179. On 3 December 2012, having amended the adoption file, the US applicants again resubmitted the application. By that time the Bilateral Agreement on Adoption ‒ including a provision stating that an adoption application might only be submitted through an authorised agency ‒ had entered into force.",
"180. On 11 December 2012 the Ministry of Social Relations of the Chelyabinsk Region rejected the application on the grounds that it had been submitted by the US applicants directly and not by an authorised adoption agency. It was recommended that the US applicants re-apply via an agency.",
"181. According to the applicants, the adoption procedure was eventually halted by the entry into force of Law no. 272-FZ.",
"182. The US applicants were never registered in the State databank as prospective adoptive parents.",
"183. According to the Government, since 1 September 2014 M.K. has been attending the South Urals Vocational School ( Южно-Уральский многопрофильный колледж ) and lives in the school dormitory.",
"(f) Application no. 26309/13",
"184. Application no. 26309/13 was lodged on 18 April 2013 by C.Z., born on 29 October 1974, and S.Z., born on 2 October 1976, who live in Simpsonville, South Carolina, United States (the US applicants ), and A.K., who was born on 8 November 2008 and lives in Zelenogradsk.",
"185. A.K. suffers from psychological developmental disorder, speech development delay, enuresis and dysarthria. A.K. was taken from his home by social workers in August 2011 as he had been neglected and possibly abused by his parents.",
"186. The US applicants have previously adopted a boy from Russia. They initiated the procedure for adoption of another child in April 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents. They were assisted by the authorised adoption agency “Adoption Associates Inc.”.",
"187. On 15 October 2012 the US applicants obtained a referral to visit A.K. from the Ministry of Education of the Kaliningrad Region. They visited him twice a day between 15 and 19 October 2012. They spent four to five hours per day with A.K.",
"188. On 19 October 2012 the US applicants formally agreed to adopt A.K.",
"189. According to the Government, the US applicants never made an application to a court for A.K. ’ s adoption.",
"190. According to the US applicants, they submitted the adoption application to the Kaliningrad Town Court, and the hearing was scheduled for 17 January 2013. On 28 December 2012 they were informed that the hearing had been cancelled due to the adoption of Law no. 272-FZ.",
"191. On 30 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"192. According to the Government, A.K. has been adopted by a different adoptive family.",
"(g) Application no. 27161/13",
"193. Application no. 27161/13 was lodged on 11 April 2013 by S.S., born on 13 March 1978, and G.S. born on 30 January 1982, who live in Shirley, New York [7], United States (the US applicants ), and E.O., who was born on 14 September 2009 and lives in Perm.",
"194. E.O. is HIV positive. She suffers from speech development delay, slight anomaly in heart development, atopic dermatitis, vegetative dysfunction of the Keith-Flack node and planovalgus deformity.",
"195. The US applicants initiated the adoption procedure in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 September 2012.",
"196. On 6 September 2012 the US applicants obtained a referral to visit E.O. from the Ministry of Education of the Perm Region. They visited her twice a day between 6 and 12 September 2012. Each visit lasted approximately two hours.",
"197. On 10 September 2012 the US applicants formally agreed to adopt E.O. They were not assisted by any adoption agencies.",
"198. According to the Government, no adoption application was ever submitted to a court.",
"199. According to the US applicants, the adoption application had been finalised by 28 December 2012. However, the procedure was halted by the entry into force of Law no. 272-FZ.",
"200. On 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"201. According to the Government, E.O. has been adopted by a different adoptive family. According to the US applicants, her adoptive parents are not Russian nationals either, and in 2013 E.O. was taken to Ireland.",
"(h) Application no. 29197/13",
"202. Application no. 29197/13 was lodged on 29 April 2013 by C.M.S., born on 27 February 1967 and who lives in New York, NY, United States (the US applicant ), and A.N., who was born on 9 December 2011 and lives in St. Petersburg.",
"203. At birth A.N. ’ s umbilical cord was wrapped around his neck, which led to a number of complications. He suffers from congenital heart disease, open foramen oval; congenital renal disease, pyelectasis; mixed psychological development disorder and motor and speech development delay.",
"204. The US applicant initiated the adoption procedure in early 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 15 November 2012. The US applicant was assisted by the authorised adoption agency “Adopt a Child Inc.”.",
"205. On 19 December 2012 the US applicant obtained a referral to visit A.N. from the Committee on Social Policy of the St Petersburg Administration. She visited him twice a day between 19 and 21 December 2012. Each visit lasted between an hour and an hour and a half.",
"206. On 26 December 2012 the US applicant formally agreed to adopt A.N.",
"207. On 18 February 2013 an adoption application dated 9 January 2012 was submitted to the St. Petersburg City Court by D. acting on the basis of a power of attorney.",
"208. On 19 February 2013 the St. Petersburg City Court returned the application without examination on the grounds that the power of attorney had been issued to D. as a private person whereas, pursuant to Article 4 § 4 of the Bilateral Agreement on Adoption, only authorised agencies were permitted to act as representatives. No appeal was lodged against the ruling.",
"209. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"210. According to the Government, A.N. has been adopted by a different adoptive family.",
"(i) Application no. 32224/13",
"211. Application no. 32224/13 was lodged on 13 May 2013 by R.K.B., born on 21 December 1969, and T.B., born on 7 December 1973, who live in Wetumpka, Alabama, United States (the US applicants ), and V.B., who was born on 3 March 2012 and lives in Volgograd.",
"212. V.B. suffers from a motor dysfunction, psychological development disorder, heart defects such as open oval window and lesion of the mitral valve, and had prenatal contact with hepatitis C.",
"213. The US applicants have previously adopted a girl from Kazakhstan. In September 2011 they initiated the procedure to adopt another child from Russia. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 27 June 2012. They were assisted by the authorised adoption agency “Christian World Adoption Inc.”.",
"214. On 13 December 2012 the US applicants obtained a referral to visit V.B. from the Ministry of Education of the Volgograd Region. They visited her twice daily between 14 and 20 December 2012. Each visit lasted approximately two hours.",
"215. On 20 December 2012 the US applicants formally agreed to adopt V.B.",
"216. The adoption application was never submitted to a court. According to the US applicants, the adoption procedure was halted by the entry into force of Law no. 272-FZ.",
"217. On 30 January 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"218. According to the Government, V.B. has been adopted by a different adoptive family.",
"(j) Application no. 32331/13",
"219. Application no. 32331/13 was lodged on 16 May 2013 by D.M.L., born on 25 February 1972, and De.M.L., born on 7 November 1968, who live in Omaha, Nebraska, United States (the US applicants ), and R.P., who was born on 19 February 2012 and lives in Vladivostok.",
"220. R.P. was born prematurely. He suffers from prenatal encephalopathy of anoxic-ischemic genesis, a light anomaly in heart development in the form of an additional chord of the left heart ventricle, and narrowing of palpebral fissure.",
"221. The US applicants initiated the adoption procedure in January 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 20 November 2012. They were assisted by the authorised adoption agency “Beacon House Adoption Services, Inc.”.",
"222. On 17 December 2012 the US applicants obtained a referral to visit R.P. They visited him daily between 17 and 21 December 2012. Each visit lasted between an hour and an hour and a half.",
"223. The US applicants formally agreed to adopt R.P. However, according to the Government, they had not signed the statement confirming that they had studied his medical file. Therefore, the subsequent steps set out in Government Decree no. 217 of 4 April 2002 prior to submission of an adoption application to a court were not taken. In particular, no confirmation was received from the State databank that the child was available for adoption.",
"224. The adoption application was never submitted to a court.",
"225. On 31 July 2013 the US applicants were removed from the State databank as prospective adoptive parents.",
"226. On 31 October 2013 the US applicants filed a complaint against the Directorate of Education and Science of the Primorye Region and the Administration of the Primorye Region to the Leninskiy District Court of Vladivostok. They claimed that the defendants had prevented them from finalising the adoption procedure.",
"227. On 5 November 2013 the complaint was returned without examination on the grounds of lack of territorial jurisdiction.",
"228. On 18 November 2013 the US applicants ’ representative D. resubmitted the complaint to the Frunzenskiy District Court of Vladivostok.",
"229. On 19 December 2013 the Frunzenskiy District Court of Vladivostok dismissed the complaint, having found that the US applicants ’ removal from the State databank as prospective adoptive parents was compliant with Law no. 272-FZ. The US applicants appealed.",
"230. On 3 April 2014 the Primorye Regional Court upheld the decision of 19 December 2013.",
"231. According to the Government, R.P. has been adopted by a different adoptive family.",
"(k) Application no. 32351/13",
"232. Application no. 32351/13 was lodged on 16 May 2013 by J.F.B., born on 24 October 1966 and who lives in Boston, Massachusetts, United States (the US applicant ), and M.I. who was born on 18 April 2011 and lives in Vsevolzhsk, the Leningrad Region.",
"233. M.I. was born prematurely and suffers from speech and psychomotor development delay, internal hydrocephalus, and a congenital heart defect.",
"234. The US applicant initiated the adoption procedure in July 2011. Having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 19 September 2012. The US applicant was assisted by the authorised adoption agency “Adopt a Child Inc.”.",
"235. On 8 October 2012 the US applicant obtained a referral to visit M.I. She visited her every day between 8 and 12 October 2012. Each visit lasted between an hour and a half and two hours.",
"236. On 9 October 2012 according to the US applicant and on 11 October 2012 according to the Government, the US applicant formally agreed to adopt M.I.",
"237. On 19 December 2012 the US applicant submitted the adoption application to the Leningrad Regional Court.",
"238. On 25 December 2012 the Leningrad Regional Court stayed the proceedings due to certain shortcomings in the documents submitted. In particular, on the certificate confirming that the US applicant had undergone the requisite training for prospective adoptive parents, her middle name was not indicated, causing the court to express doubts as to whether the certificate had actually been issued to her. In addition, the validity of the certificate confirming her living conditions had expired on 7 November 2012 and she therefore needed to renew it. Moreover, the application did not contain any information about M.I. ’ s father and siblings, if any; the medical certificate detailing M.I. ’ s state of health failed to include the opinions of certain doctors; information about the US applicant ’ s income was not accurate; and a document corroborating the US applicant ’ s housing rights was not attached. The court instructed the US applicant to rectify the shortcomings by 28 February 2013. According to the Government, the above decision was not appealed against and became final on 2 February 2013.",
"239. On 17 January 2013 the Leningrad Regional Court discontinued the adoption proceedings and returned the application without examination on the grounds that, pursuant to Law no. 272-FZ, the US applicant did not have a right to adopt M.I. According to the US applicant, she appealed. It is not clear whether the appeal was examined.",
"240. On 15 February 2013 the US applicant was removed from the State databank as a prospective adoptive parent. According to the Government, she was informed of this on 30 May 2013. According to the US applicant, she never received any information to this effect.",
"241. According to the Government, M.I. has been adopted by a different adoptive family. According to the US applicant, M.I. ’ s adoptive parents are not Russian nationals either.",
"(l) Application no. 32368/13",
"242. Application no. 32368/13 was lodged on 16 May 2013 by L.A.P., born on 3 March 1966, and J.N.T., born on 5 August 1971, who live in Long Beach, NY, United States (the US applicants ), and K.K., who was born on 24 August 2010 and lives in St. Petersburg.",
"243. K.K. was abandoned at birth by her mother, who was a drug addict. She suffers from mixed psychological disorders and hypotrophy of the first degree.",
"244. The US applicants initiated the adoption procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 16 August 2012. They were assisted by the authorised adoption agency “New Hope Christian Services”.",
"245. On 20 February 2012 the US applicants obtained a referral to visit K.K. from the Committee on Social Policy of the St Petersburg Administration. They visited her every day between 21 and 23 February 2012. Each visit lasted approximately two hours.",
"246. On 29 February 2012 the US applicants formally agreed to adopt K.K.",
"247. On 8 November 2012 the adoption application was submitted to the St. Petersburg City Court.",
"248. On 12 November 2012 the St. Petersburg City Court stayed the proceedings on the grounds that certain documents were not enclosed and instructed the US applicants to submit them by 11 December 2012. At the US applicants ’ request, the deadline was subsequently extended to 15 January 2013. According to the US applicants, after the entry into force of the Bilateral Agreement on Adoption, they had to comply with additional requirements introduced by the Agreement. Later they also had to provide proof that their house had not been affected by Hurricane Sandy, which hit the north - eastern United States in October 2012.",
"249. On 15 January 2013 the St. Petersburg City Court returned the application without examination on the grounds that the additional documents submitted by the applicants were not complete. In particular, the section of the report on the US applicants ’ living conditions containing the date and signature had not been translated. A photograph of the child ’ s room was not informative. Moreover, there were no photographs of the US applicants with K.K., and a document confirming that the US applicants had undergone the requisite training for prospective adoptive parents had not been enclosed. No appeal was lodged against this ruling.",
"250. On 22 May 2013 the US applicants ’ representative S. resubmitted the adoption application.",
"251. On 23 May 2013 St. Petersburg City Court returned the application without examination on the grounds that it had been submitted by a private person acting on the US applicants ’ behalf, whereas pursuant to virtue of Article 4 § 4 of the Bilateral Agreement on Adoption it could only be submitted by an authorised agency. The US applicants appealed.",
"252. On 20 June 2013 St. Petersburg City Court returned the appeal statement without examination, making reference to Law no. 272-FZ.",
"253. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"254. According to the Government, K.K. has been adopted by a different adoptive family.",
"(m) Application no. 37173/13",
"255. Application no. 37173/13 was lodged on 7 June 2013 by J.W.H., born on 29 July 1981, A.M.H., born on 18 March 1969 (the US applicants ) and G.N.Y.H., born on 3 December 2008, who live in Smartsville, California, United States, and V.B., who was born on 14 November 2001 and lives in Prokopyevsk.",
"256. V.B. suffers from light mental development delay, light speech development delay and a mixed form of dysgraphia and dyslexia.",
"257. On 5 July 2010 the US applicants adopted the third applicant, G.N.Y.H. As a result of what appears to be a clerical mistake, the information about her siblings had not been included in the State databank.",
"258. According to the Government, the information regarding G.N.Y.H. ’ s brother, V.B., had been included in G.N.Y.H. ’ s file, however, and the US applicants had studied this in March 2010.",
"259. In the decision of the Kemerovo Region Court of 5 July 2010 on G.N.Y.H. ’ s adoption it was stated that although G.N.Y.H. had an elder brother, V.B., the court considered it possible for G.N.Y.H. to be adopted alone because the children were being placed in different institutions, their family relations had been interrupted, and the adoption was in the interests of G.N.Y.H.",
"260. According to the US applicants, having learned that G.N.Y.H. had a brother, they started corresponding with V.B. and sent him letters, photos and parcels. They also started making enquiries with a view to adopting V.B. as well. In a letter of 29 April 2011 the prosecutor ’ s office of the Kemerovo Region advised the US applicants that, as they had been registered as the prospective adoptive parents in respect of one particular child, they would have to reapply to the competent authorities and resubmit documents amended accordingly should they wish to adopt another child. In a letter of 15 June 2011 the same prosecutor ’ s office acknowledged that the information on G.N.Y.H. ’ s siblings had not been included in the State databank as a result of a clerical mistake. It noted, however, that the information about V.B. had been included in G.N.Y.H. ’ s personal file, which the US applicants had studied on 24 March 2010. The prosecutor ’ s office also confirmed that V.B. was available for adoption and that it was open to the US applicants to apply to the competent authorities for his adoption. The US applicants then initiated the adoption procedure.",
"261. On 12 May 2012 “Hand in Hand”, an authorised adoption agency acting on behalf of the US applicants, filed an application for V.B. ’ s adoption with the Directorate of Education and Science of the Kemerovo Region. On the same date the US applicants were registered in the State databank as prospective adoptive parents.",
"262. According to the Government, the US applicants had initially intended to visit V.B. in June 2012, but they asked if they might change the dates of their visit to October 2012. However, they did not reapply for a later visit. Accordingly, they were never issued with a referral to visit V.B. and never met him.",
"263. According to the US applicants, at the relevant time they had also applied to adopt another child from Russia, X., and they had accepted a referral to visit her in June 2012. They then also received a referral to visit V.B. in June 2012. Although they were willing to meet both children, they were advised that it was necessary to finalise the adoption of X. first. Accordingly, they asked for permission to visit V.B. in October 2012. However, they were subsequently advised that in July 2012 the regional authorities had banned the adoption of children by US nationals following an incident of ill-treatment of a child from the Kemerovo Region by his adoptive parents from the United States.",
"264. In December 2012, when the US applicants went to Russia to finalise the adoption of X., they learned that the regional ban on adoption of children by US nationals had been lifted. However, the US applicants were unable to proceed with the adoption of V.B. due to the entry into force of the Law no. 272-FZ.",
"265. According to the Government, V.B. is living in an orphanage.",
"(n) Application no. 38490/13",
"266. Application no. 38490/13 was lodged on 12 June 2013 by A.B., born on 24 July 1964 and who lives in Bellevue, Nebraska [8], United States (the US applicant ), and Ye.L., who was born on 23 July 2009 and lives in Novosibirsk.",
"267. Ye.L. was born prematurely. He suffers from hearing loss, speech development delay and respiratory ailments.",
"268. The US applicant initiated the adoption procedure in 2008. As the adoption agency ’ s licence was later revoked, she had to restart the procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 25 June 2012.",
"269. On 19 July 2012 the US applicant obtained a referral to visit Ye.L. She visited him on four consecutive days in July 2012.",
"270. On 22 July 2012 the US applicant formally agreed to adopt Ye.L.",
"271. According to the US applicant, preparation of an adoption file took more time after the entry into force of the Bilateral Agreement on Adoption, which stipulated a number of additional requirements. The adoption application was ultimately not submitted to a court due to the entry into force of Law no. 272-FZ.",
"272. On 10 June 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent.",
"273. According to the Government, Ye.L. has been placed with a foster family.",
"(o) Application no. 42340/13",
"274. Application no. 42340/13 was lodged on 30 June 2013 by M.B., born on 28 December 1966, and D.B., born on 9 November 1968, who live in Alabaster, Alabama, United States (the US applicants ), and K.S., who was born on 29 November 2005 and lives in St. Petersburg.",
"275. K.S. suffers from psychological development delay, atopic dermatitis, planovalgus deformity and a phonematic disorder.",
"276. Between 13 December 2010 and 17 January 2011 K.S. stayed at the US applicants ’ home as a part of the orphan - hosting programme “New Horizons for Children”.",
"277. As soon as K.S. had left, the US applicants started making enquiries about adoption. In March 2011 they started the adoption procedure.",
"278. On 20 February 2012 the US applicants were registered in the State databank as prospective adoptive parents.",
"279. After 2011, the US applicants met with K.S. on three occasions. Each time they came to St. Petersburg for a week and visited K.S. daily. Each visit lasted from two to three hours.",
"280. According to the Government, on 13 December 2011 the US applicants submitted the application for K.S. ’ s adoption to the St. Petersburg City Court. As certain documents were not enclosed, the proceedings were stayed and the US applicants were instructed to submit the documents requested by 10 January 2012. The term was then extended to 9 February 2012. As the US applicants failed to submit the documents, on the latter date the adoption application was returned to them without examination. No appeal was lodged against this ruling.",
"281. According to the US applicants, in November-December 2011 and February-March 2012 they had travelled to Russia as they wished to adopt K.S. and her younger brother. It transpired that they were unable to go ahead with the adoption because, although K.S. ’ s mother ’ s parental rights had been revoked, the revocation of her father ’ s parental rights was pending but not yet finalised. This issue was resolved in March 2012. However, in April 2012 the US applicants were informed that K.S. ’ s biological mother had had a baby girl, and that K.S. thus had two siblings. In May 2012 they amended the adoption file so as to apply for adoption of three children: K.S. and both her brother and sister. In September 2012 they were obliged to comply with additional requirements introduced by the Bilateral Agreement on Adoption, which included additional training courses. The adoption procedure was ultimately halted by the entry into force of Law no. 272-FZ.",
"282. According to the Government, K.S. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her.",
"(p) Application no. 42403/13",
"283. Application no. 42403/13 was lodged on 30 June 2013 by M.M., born on 20 September 1974, and J.M., born on 9 August 1976, who live in Westminster, MD, United States (the US applicants ), A.M., who was born on 11 June 2002 and lives in Furmanov, the Ivanovo Region, and D.T., who was born on 22 October 2002 and lives in Kineshma, the Ivanovo Region.",
"284. A.M. and D.T. are not related. Their parents have been stripped of parental rights. D.T. suffers from mitral heart prolapse, residual encephalopathy, mixed disorder of psychological development and gallbladder anomaly. A.M. had been adopted at the age of five years old but was then returned to the orphanage. She suffers from a mixed disorder of psychological development and light myopia.",
"285. The US applicants initiated the adoption procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 11 April 2012. They were assisted by the authorised adoption agency “Hand in Hand”.",
"286. On 13 September 2012 the US applicants obtained a referral to visit both A.M. and D.T. from the Department of Social Security of the Ivanovo Region so as to choose between the two girls. They visited D.T. twice and A.M. three times in September 2012 and eventually decided to adopt both girls.",
"287. On 27 September 2012 the US applicants formally agreed to adopt A.M. and D.T. According to the US applicants, A.M. and D.T. met and bonded.",
"288. On 31 October 2012 the adoption application was submitted to the Ivanovo Regional Court.",
"289. On 6 November 2012 the Ivanovo Regional Court stayed the proceedings on the grounds that certain documents, such as confirmation of the US applicants ’ registration in the State databank and the girls ’ entry permits for the United States, were not enclosed. It instructed the US applicants to submit the documents requested by 27 November 2012.",
"290. According to the US applicants, on 27 November 2012 they provided the documents in question.",
"291. On 4 December 2012 the Ivanovo Regional Court returned the adoption application without examination on the grounds that the US applicants had failed to provide the documents requested.",
"292. On 14 December 2012 the US applicants resubmitted the adoption application.",
"293. On 18 December 2012 the Ivanovo Regional Court stayed the proceedings on the grounds that some of the enclosed documents did not satisfy the procedural requirements. In particular, (i) although the US applicants had submitted a property certificate concerning a plot of land, it did not provide sufficient information about their dwelling; (ii) the attestation of the US applicants ’ suitability to become adoptive parents had been issued more than a year previously and was therefore outdated; and (iii) medical opinion concerning the US applicants ’ state of health did not satisfy the Ministry of Health requirements. The US applicants were instructed to rectify these shortcomings by 10 January 2013.",
"294. On 9 January 2013 the Ivanovo Regional Court rejected the application on the grounds that, pursuant to Law no. 272-FZ, the US applicants did not have a right to adopt A.M. and D.T. The US applicants appealed.",
"295. On 4 February 2013 the Ivanovo Regional Court upheld the ruling of 9 January 2013 on appeal. The US applicants lodged an appeal on points of law.",
"296. On 17 April 2013 the Presidium of the Ivanovo Regional Court rejected the appeal on points of law.",
"297. On 25 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents.",
"298. According to the Government, A.M. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about them. D.T. has been placed with a foster family."
] | [
"II. RELEVANT DOMESTIC LAW",
"1. General provisions on adoption",
"(a) International instruments",
"299. Russia signed the Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993 (The Hague Adoption Convention) on 7 September 2000, but it has not yet been ratified. Russia is not a party to the European Convention on the Adoption of Children, which opened for signature in Strasbourg on 24 April 1967.",
"300. On 13 June 1990 Russia ratified the United Nations Convention on the Rights of the Child of 20 November 1989. The Convention provides, in so far as relevant :",
"Article 21",
"“States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"(b) Recognise that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin; ...”",
"301. At its twenty-second annual session held in Istanbul, Turkey between 29 June and 3 July 2013, the OSCE Parliamentary Assembly adopted the Resolution on Intercountry Adoptions, which reads as follows:",
"“1. Desirous that a child, for the full development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding,",
"2. Understanding the necessity to take appropriate measures to keep the child with his or her birth family but, where that is not possible, to place the child with a substitute family in the child ’ s country of origin for the purposes of upbringing,",
"3. Acknowledging that intercountry adoption may offer the advantages of a permanent family to a child if a suitable family cannot be found for the child in his or her country of origin,",
"4. Affirming the sovereign prerogatives and responsibilities of participating States to permit, prohibit, restrict, or otherwise regulate the practice of intercountry adoptions consistent with international norms and commitments,",
"5. Concerned that the political volatility of intercountry adoptions can have a deterring effect on the willingness of prospective adoptive parents to commit the substantial emotional and other resources required to pursue an intercountry adoption, thus increasing the likelihood that more children will be deprived of the happiness, love, and understanding of a family,",
"6. Sensitive to the fact that a child who is unable to grow up with his or her birth family has suffered loss, rejection, abandonment, neglect, or abuse and that, in all matters relating to the placement of a child outside the care of his or her own parents, the best interests of the child, particularly his or her need for affection and right to security and continuing care, should be the paramount consideration and every effort should be made to spare the child further disappointment and harm,",
"7. Recognizing the bond that forms rapidly between a child and prospective adoptive parents during the adoption process but before a legal parent-child relationship has been effected,",
"8. Convinced that this bond forms the foundation of a nascent family and that such a family is worthy of the recognition, respect, and protection of participating States,",
"The OSCE Parliamentary Assembly:",
"9. Calls on participating States to recognize the foundational bond between prospective adoptive parents and the child and to honor and protect these nascent families;",
"10. Urges participating States to resolve differences, disputes, and controversies related to intercountry adoptions in a positive and humanitarian spirit with special attention being given to avoid any general, indiscriminate disruption of intercountry adoptions already in progress that could jeopardize the best interests of the child, harm the nascent family, or deter prospective adoptive parents from pursuing an intercountry adoption;",
"11. Requests the OSCE take the necessary steps in a Ministerial Council decision, possibly in the context of existing human dimension commitments concerning family reunification, to clarify the issue of safeguarding, on a collective basis, the nascent family formed where an intercountry adoption is well-advanced.”",
"(b) Constitution",
"302. Article 6 § 3 of the Constitution of the Russian Federation provides:",
"“Foreign nationals and stateless persons have in the Russian Federation the same rights and obligations as nationals of the Russian Federation except as provided in a federal law or an international treaty of the Russian Federation.”",
"303. Article 15 provides, insofar as relevant:",
"“4. The generally recognised principles and norms of international law and the international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by the law, the rules of the international treaty shall apply.”",
"(c) Code of Civil Procedure",
"304. Article 269 (2) of the Code provides that nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons may submit an adoption application to a court according to the place of residence or whereabouts of the child they are seeking to adopt.",
"305. Pursuant to Article 270, the adoption application should contain the name of the adoptive parent(s) and his/her/their place of residence; the name, date of birth and place of residence or whereabouts of the child that is the candidate for adoption together with clarification as to whether he/she has any siblings; reasons for the application; a request, if any, to change the child ’ s name or date of birth.",
"306. Article 271 provides a list of documents to be submitted with the adoption application, including :",
"(1) a copy of the child ’ s birth certificate;",
"(2) a copy of the adoptive parents ’ marriage certificate if the application is submitted by a married couple;",
"(3) if the application is submitted by one of the spouses, the other spouse ’ s consent or a document attesting that marital relations have been discontinued and the spouses have not been living together for over a year, or other written proof thereof;",
"(4) medical report on the state of health of the adoptive parent(s);",
"(5) employment certificate and either a pay statement or other document attesting income;",
"(6) a document either confirming title to a property or the right to use a dwelling;",
"(7) a document confirming that the applicant(s) has (have) been included in the register as a prospective adoptive parent;",
"(8) a document confirming that the applicant(s) has (have) undergone the requisite training for prospective adoptive parents.",
"307. Article 271 (1.1-2) further provides that nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons should enclose with their application, in addition to the documents listed above, an attestation from the competent agency in the applicant ’ s home State (or of the Russian national ’ s permanent place of residence) as to their living conditions and suitability to become adoptive parents, as well as a permit from that State authorising the child ’ s entry and subsequent permanent residence in the State.",
"308. Article 272 (1) states that in the course of its preparation for the hearing, the court must obtain an opinion from the custody and guardianship office concerning the prospective adoption. Pursuant to Article 272 (2), in cases involving the adoption by nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons, a document attesting to the impossibility of placing the child in the care of Russian nationals or of the child ’ s relatives ‒ irrespective of their nationality and place of residence ‒ should be enclosed with the opinion.",
"309. Pursuant to Article 273, the adoption application is examined by a court in camera in the mandatory presence of the adoptive parent(s), a representative from the custody and guardianship office, the prosecutor, and the child if the latter is over fourteen years old; the presence of the child ’ s parents, other interested parties and the child ‒ if aged between ten and fourteen years old ‒ can also be required if deemed necessary.",
"310. Pursuant to Article 274, if the court grants the adoption application, the rights and obligations of the adoptive parents and the adopted child become established on the date of the entry into force of the decision.",
"(d) Family Code",
"311. Pursuant to Article 126 of the Code, Russian local executive agencies must keep a register of foreign nationals and stateless persons wishing to adopt a child.",
"312. Article 165 of the Code provides that adoption of a child who is a Russian national by foreign persons should be carried out in compliance with the law of the State of the adoptive parents ’ nationality. At the same time, the general provisions of Russian law concerning adoption and the provisions of the relevant international treaties should also be complied with.",
"(e) Government Decree no. 275 of 29 March 2000 on Adoption of the Rules for the Transfer of Children for Adoption and Exercise of Control over the Conditions of their Living and Upbringing in Adoptive Families in the Territory of the Russian Federation and [on Adoption] of the Rules on Registration by Consulates of the Russian Federation of Children – Nationals of the Russian Federation Adopted by either Foreign Nationals or Stateless Persons",
"313. The Decree provides that adoption by foreign nationals or stateless persons of children who are Russian nationals is allowed only when it appears impossible to place such children in the care of Russian nationals permanently residing in Russia or of the children ’ s relatives, irrespective of the latter ’ s nationality and place of residence (Article 24).",
"314. The Decree further provides that an adoption agency specifically authorised by a foreign State through its representatives in Russia may represent the interests of Russian nationals permanently living abroad, foreign nationals or stateless persons in respect of adoption-related matters (Article 25).",
"(f) Federal Law no. 44-FZ of 16 April 2001 on the State Databank of Children Left without Parental Care",
"315. The law governs the functioning of the State databank of children left without parental care (“ the State databank ”). According to the law, the State databank should also contain information about persons wishing to adopt a child, including that person ’ s nationality (Section 7). Information about a person may be removed from the State databank, in particular, if the circumstances allowing that person to accept a child into his or her family have changed (Section 9 § 2). The law uses the terms “federal operator” of the State databank for a federal executive agency and “regional operator” for an executive agency of a subject of the Russian Federation, which carries out the placement in families of children left without parental care (Section 1).",
"(g) Government Decree no. 217 of 4 April 2002 on the State Databank of Children Left without Parental Care and the Exercise of Control over its Formation and Use",
"316. The Decree develops the provisions of Federal Law no. 44-FZ of 16 April 2001 and provides a procedure for persons wishing to adopt a child, with which they must comply prior to submitting an adoption application to a court. Article 20 of the Decree sets out the list of documents that must be submitted to the operator of the State databank of children left without parental care by Russian nationals permanently living abroad, foreign nationals or stateless persons wishing to adopt a child. They include:",
"(1) a statement of intent to adopt a child and a request to obtain information on children from the State databank of children left without parental care;",
"(2) a completed application form;",
"(3) an undertaking to register the child with a Russian consulate abroad;",
"(4) an undertaking to allow inspection of the adopted child ’ s living conditions;",
"(5) a copy of an identity document;",
"(6) an attestation by the competent agency in the person ’ s home State as to his or her living conditions and suitability to become an adoptive parent;",
"(7) an undertaking by the competent agency in the person ’ s home State to monitor the adopted child ’ s living conditions and upbringing in the adoptive parents ’ family;",
"(8) an undertaking by the competent agency in the person ’ s home State to ensure that the adopted child is registered with a Russian consulate abroad;",
"(9) a copy of the licence or other document confirming the authority of the competent agency in the person ’ s home State referred to in (6) above.",
"317. All the above documents should be notarised and a certified Russian translation of foreign language documents should be provided (Article 23). Upon receipt of the documents, the operator of the State databank will provide the foreign applicant with information about candidate children who correspond to the applicant ’ s wishes or will return the documents with a written refusal to provide the information requested, indicating the reasons for the refusal (Article 24). If the outcome is favourable, the operator will provide the applicant with a referral to visit the child (Article 25). The referral is valid for a period of ten days, which can be extended by the operator. The applicant must visit the child and subsequently inform the operator whether he/she wishes to continue the adoption procedure (Article 16). Within ten days of receipt of the foreign applicant ’ s request to adopt a child, the regional operator will transmit the information about the applicant and the child to the federal operator. Within a further ten days the latter will confirm the child ’ s inclusion in the State databank and the impossibility of placing the child in the care of Russian nationals permanently residing in Russia (Article 28). Within another ten days the foreign applicant should inform the operator in writing (a) that the adoption application has been submitted to a court; (b) of the court ’ s decision in this respect; (c) of the applicant ’ s decision to abandon his or her efforts to find a child for adoption and the removal of the information about him/her from the State databank (Article 29).",
"(h) Government Decree no. 654 of 4 November 2006 on the Activity of Foreign States ’ Agencies and Organisations in [Carrying out] the Adoption of Children in the Territory of the Russian Federation and Control over its Exercise",
"318. The Decree contains provisions on the opening, functioning and discontinuation of the activities of foreign adoption agencies ’ representative offices in Russia. Article 2 of the Decree authorises the Ministry of Education and Science to issue permits to open a representative office. Pursuant to Article 20 of the Decree, representative offices of foreign adoption agencies may carry out the following activities in Russia :",
"(1) submit an application seeking a child for adoption to an executive agency or the Ministry of Education and Science and submit an adoption application to a court;",
"(2) obtain information about the child on the basis of the prospective adoptive parents ’ application;",
"(3) issue invitations and provide visa support for prospective adoptive parents;",
"(4) arrange accommodation for prospective adoptive parents and assist them with the adoption procedure;",
"(5) participate in court hearings on adoption cases, receive judicial decisions on adoption and assist adoptive parents in obtaining a birth certificate and a passport for the child to enable the latter travel outside Russia;",
"(6) carry out on Russian territory any other lawful activity related to the representation of adoptive parents ’ and prospective adoptive parents ’ interests.",
"319. Pursuant to Article 14 of the Decree, the representative office of a foreign adoption agency which has received a decision ordering either the suspension or discontinuation of its activity must cease its adoption- related activity.",
"(i) Decree of the Ministry of Education and Sciences no. 347 of 12 November 2008 on the Approval of the Administrative Rules on the Exercise of the Function of Federal Operator of the State Databank of Children Left without Parental Care and on the Issuance of Preliminary Adoption Permits",
"320. The Rules adopted by the Decree govern the activity of the Ministry of Education and Science in so far as it concerns its functions as the federal operator of the State databank.",
"( j ) Presidential Decree no. 1688 of 28 December 2012 on Certain Measures for the Realisation of State Policy in the Area of the Protection of Orphaned Children and Children Left without Parental Care",
"321. The Decree contains instructions on measures to be taken with a view to encouraging adoption by Russian nationals. They include, in particular, simplification of the adoption procedure, improvement of the medical care offered to orphaned children and children left without parental care, and an increase in social benefits. The Decree also instructs the Supreme Court to provide clarifications for the lower courts on the application of Law 272-FZ.",
"2. Specific provisions on adoption of Russian children by nationals of the United States of America",
"(a) Agreement between the United States of America and the Russian Federation Regarding Cooperation on the Adoption of Children of 13 July 2011",
"322. The purpose of the Bilateral Agreement on Adoption was explained in a Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010. The Statement reads as follows:",
"“We are convinced that all children have the right to grow up in a family environment, in an atmosphere of happiness, love and understanding. Many children throughout the world are deprived of this natural right.",
"Every year, tens of thousands of children find loving parents through adoptions, including international adoptions. We honor those who have the generosity to welcome adopted children, in particular from other countries, into their families.",
"However, tragic incidents involving children adopted between our countries caused by the adoptive parents underscore the importance of ensuring reliable protections for the rights, safety, and well-being of adopted children. We are committed to doing everything in our power to achieve this.",
"In this regard, we have come to the conclusion that it is necessary to conclude a legally binding bilateral agreement on cooperation in the field of intercountry adoption. At our direction, experts from the United States and Russia have already been actively working on a draft, and they have informed us that they have made considerable progress in fulfilling this difficult task.",
"We will work together so that entry into force of this agreement as soon as possible would create an even stronger legal basis for adoption in the interests of children and families of both our countries.”",
"323. The Bilateral Agreement on Adoption was signed in Washington, DC on 13 July 2011. It was ratified by the Russian State Duma on 28 July 2012 (Federal Law no. 150- FZ) and entered into force on 1 November 2012.",
"324. The Bilateral Agreement on Adoption sets out the procedure to be followed by Russian nationals for the adoption of children who are nationals of the United States and by nationals of the United States for the adoption of children who are nationals of Russia. It provides, in particular, that the adoption of a child from Russia shall occur only with the assistance of an authorised organisation, except in cases of adoption by the child ’ s relatives (Article 4 §§ 4 and 5). The authorised organisation must be an entity in the United States authorised to perform activities in the field of intercountry adoption in accordance with the domestic laws of the United States and authorised to perform such activities on Russian territory in accordance with Russian domestic laws and the Bilateral Agreement on Adoption (Article 1 § 5).",
"325. The Bilateral Agreement on Adoption further provides that the prospective adoptive parents must obtain written appraisals of their living conditions and their suitability and eligibility to adopt a child, which must be issued by the competent authorities in the receiving country, that is to say in the country where the child will reside after his or her adoption (Article 8 § 1). The procedure for the prospective adoptive parents or an authorised organisation for submitting an adoption application to the competent authority of the country of origin (the country of which the child is a citizen and where he or she is habitually resident prior to the adoption) is determined by the domestic laws of the country of origin (Article 9 § 1). After the prospective adoptive parents have become personally acquainted with the child and have given their formal agreement, the competent authority of the receiving country, if required by the domestic laws of either party, shall:",
"(a) review the documentation submitted by the prospective adoptive parents indicating that",
"(i) the adoption and transfer are being carried out with the assistance of an authorised organisation;",
"(ii) the prospective adoptive parents have been duly informed of the requirements for completing the process of adoption in accordance with the domestic laws of the country of origin;",
"(b) confirm that the prospective adoptive parents have received the information and undergone all the requisite psycho-social preparation with the assistance of the authorised organisation or the competent authority; and that the appraisal regarding the prospective adoptive parents ’ suitability and eligibility to adopt a child remains legally valid on the basis of all the available information about the child matched against the prospective adoptive parents, including the child ’ s social situation and medical history, his or her special needs, his or her availability for adoption and a detailed conclusion concerning his or her current state of health;",
"(c) issue a preliminary conclusion concerning the eligibility of the prospective adoptive parents to move the child who is being adopted from the country of origin to the receiving country (Article 10 § 1).",
"326. The Bilateral Agreement on Adoption also contains the following provisions concerning its purposes, scope, applicable law and termination:",
"Article 3",
"“1. This Agreement is concluded for the purposes of ensuring that adoption of children from the United States of America to the Russian Federation and from the Russian Federation to the United States of America takes place with a view to ensuring the protection of the rights and best interests of the child.",
"2. The Parties shall cooperate with the goal of ensuring that adoption of children in accordance with this Agreement is based on the voluntary actions of the individuals involved in accordance with the Parties ’ domestic laws.",
"3. The Parties shall take appropriate measures provided for by their domestic laws to prevent and suppress illegal activities involving children being adopted ...",
"4. The Parties proceed from the premise that this Agreement covers adoptions where the Country of Origin decides, in accordance with its domestic laws, that it is not possible to arrange for the upbringing of the children in their birth families and:",
"for the adoption of a child from the United States of America – when due consideration has been given to the possibilities for placement of the child with a family in the United States of America in accordance with its domestic law;",
"for the adoption of a child from the Russian Federation – when it does not appear to be possible to settle him or her for upbringing or place him or her with a family that could provide for his or her upbringing or adoption in the Russian Federation in accordance with its domestic law.”",
"Article 6",
"“1. The adoption and transfer of a child under this Agreement shall be carried out in accordance with the domestic laws of the Parties and the provisions of this Agreement. The requirements for prospective adoptive parents shall be determined by the domestic laws of the Parties and the provisions of this Agreement.",
"2. The conditions under which a child may be adopted, the list of persons, organizations or bodies whose consent is required for the adoption, and also the form of such consent shall be determined by the domestic laws of the Country of Origin.",
"3. The decision regarding adoption of a child shall be made by the Country of Origin ’ s Competent Authority that makes a decision regarding adoption.”",
"Article 17",
"“... 4. Prospective adoptive parents whose documents were registered at a Regional Authority of the Country of Origin at the time of entry into force of this Agreement shall have the right to complete the adoption procedure in accordance with the procedure which was in place prior to the entry into force of this Agreement. ... ”",
"5. This Agreement shall remain in force until one year from the date that one of the Parties informs the other Party through diplomatic channels of its intention to terminate this Agreement. ...",
"(b) Federal Law no. 272-FZ of 28 December 2012 on Measures in respect of Persons Involved in a Breach of Fundamental Human Rights and Freedoms, Rights and Freedoms of Nationals of the Russian Federation",
"327. Law no. 272-FZ was adopted by the State Duma on 21 December 2012, approved by the Senate on 26 December 2012 and signed by the President on 28 December 2012. It entered into force on 1 January 2013. Section 1 § 1 lists activities that constitute a breach of Russian nationals ’ rights and freedoms, which include:",
"( a) involvement in abuse of fundamental human rights and freedoms;",
"( b) involvement in crimes against Russian nationals abroad;",
"( c) actions or omissions leading to exemption from responsibility of persons involved in crimes against Russian nationals;",
"( d) taking decisions resulting in the exemption from responsibility of persons involved in crimes against Russian nationals;",
"( e) involvement in kidnapping and arbitrary imprisonment of Russian nationals;",
"( f) delivery of arbitrary and biased convictions in respect of Russian nationals;",
"( g) arbitrary prosecution of Russian nationals;",
"( h) taking arbitrary decisions violating the rights and legitimate interests of Russian nationals.",
"328. Sections 1 and 2 of the law provide for a ban on entering Russia and for seizure of assets owned by United States nationals involved in such activities and a ban on carrying out any transactions involving the property and investments of such nationals. Under Section 2 § 1 an executive authority shall draw up a list of persons susceptible to such measures.",
"329. Section 3 § 1 also bans activity by non-commercial organisations involved in political life in Russia if they have received free of charge any assets from United States nationals or entities, or if they carry out on Russian territory projects, programmes or other activities which represent a threat to the interests of the Russian Federation. Under Section 3 § 2 a Russian national who is also a United States national may be neither a member nor the head of a non-commercial organisation or of a branch thereof, or of a branch of an international or foreign organisation if that organisation participates in political life in Russia.",
"330. The law contains the following provisions concerning the adoption of Russian children by United States nationals:",
"Article 4",
"“1. It is forbidden to transfer children who are nationals of the Russian Federation for adoption by nationals of the United States of America; the operation of agencies and organisations aimed at selecting and transferring children who are nationals of the Russian Federation for adoption by nationals of the United States of America wishing to adopt such children [is also prohibited] on the territory of the Russian Federation.",
"2. Due to the prohibition established in paragraph 1 of the present Section on transfer of children who are nationals of the Russian Federation for adoption by the nationals of the United States of America, the Agreement between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children of 13 July 2011 is to be terminated by the Russian Federation.”",
"(c) Memorandum no. 7-VS-224/13 of 22 January 2013 issued by the Russian Supreme Court",
"331. The Supreme Court provided the lower courts with the following instructions concerning the application of Law no. 272-FZ:",
"“In accordance with Article 125 § 3 of the Family Code of the Russian Federation and Article 274 § 2 of the Code of Civil Procedure of the Russian Federation, in cases where an adoption application is granted, the rights and obligations of the adoptive parent(s) and the adopted child become established on the date on which the court decision concerning the adoption enters into force.",
"Therefore, in cases where decisions concerning the adoption of children who are nationals of the Russian Federation by nationals of the United States of America were taken by the courts before 1 January 2013 and duly entered into force ( even if after 1 January 2013), the children should be transferred to the adoptive parents.”",
"( d ) Decree of the Ministry of Education and Science no. 82 of 13 February 2013 on Rectification of Breaches of Legislation of the Russian Federation when Forming, Keeping and Using the State Databank on Children left without Parental Care",
"332. The Decree provides, inter alia, that regional operators should ensure that the transfer of children who are to be adopted by families of foreign nationals must be carried out in accordance with the provisions of Law no. 272 ‑ FZ (Article 3.4.3).",
"( e ) Memorandum from the Ministry of Education and Science no. DL-88/07 of 16 April 2013",
"333. The memorandum states that, taking into account the ban on the adoption of Russian children by United States nationals introduced by Law no. 272-FZ, regional operators of the State databank should not issue a referral to visit a child to United States nationals who have been provided with information concerning the prospective adoptee.",
"334. Furthermore, in accordance with Section 9 § 2 of the Law on the State Databank, information about a prospective adoptive parent may be removed from the State databank, in particular, if the circumstances enabling the person to accept the child into his or her family for future upbringing have changed. Since the adoption of Russian children by United States nationals has become impossible, regional operators should remove information about prospective adoptive parents who are United States nationals and inform the latter accordingly.",
"335. Children left without parental care in respect of whom a referral for a visit has been issued to United States nationals, and/or in respect of whose adoption the said United States nationals have given their formal agreement, may be transferred to other families (excluding those of United States nationals) for future upbringing, as provided by the Family Code and the Law on the State Databank.",
"336. When exercising their activity, custody and guardianship, authorities and regional operators should take into account Decree of the Ministry of Education and Science no. 82 of 13 February 2013. In particular, priority should be given to transfer into families of Russian nationals permanently living in Russia when executing the transfer of children for adoption.",
"THE LAW",
"I. JOINDER OF THE APPLICATIONS",
"337. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.",
"II. REQUEST FOR WITHDRAWAL",
"338. In a letter dated 4 April 2014, applicants J.R .V. and M.L.V., application no. 12275/13, informed the Court of their wish to withdraw their complaints.",
"339. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue examination of the complaints.",
"340. It follows that this part of application no. 12275/13 must be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.",
"III. VICTIM STATUS",
"341. Having regard to case no. 37173/13, the Court notes that G.N.Y.H., the US applicants ’ previously adopted daughter, was not a party to the adoption proceedings in the present case. Accordingly, she cannot claim to be a victim of the alleged violations of the Convention.",
"342. It follows that this part of application no. 37173/13 is incompatible with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"IV. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS",
"A. Six months",
"343. The Government contended that application no. 42340/13 had been lodged outside the six - month time-limit provided for in Article 35 § 1 of the Convention, the St. Petersburg City Court having returned the adoption application to the US applicants on 9 February 2012, and the application before the Court having not been lodged until 30 June 2013.",
"344. The Court notes that the applicants in the case concerned did not complain about the St. Petersburg City Court ruling of 9 February 2012, whereby their adoption application was returned to them without examination. The subject of their complaint is the entry into force of Law no. 272-FZ, which occurred on 1 January 2013, and their application was lodged on 30 June 2013, that is to say within six months of the date in question. Accordingly, the Government ’ s objection must be dismissed.",
"B. Non-exhaustion",
"1. The parties ’ submissions",
"345. The Government further argued that the US applicants had failed to exhaust the available domestic remedies, in particular: (i) the US applicants in case no. 23890/13 were neither registered in the Russian State databank as prospective adoptive parents, nor were they assisted by an authorised adoption agency; (ii) the US applicants in cases nos. 23890/13 and 37173/13 had never obtained a referral from the Russian competent authorities to visit the children in question; (iii) the US applicants T.L.B.-S., Q.S., W.S., C.B. and T.B. in case no. 12275/13 and the US applicants in cases nos. 23890/13, 26309/13, 27161/13, 32224/13, 32331/13, 37173/13 and 38490/13 had not submitted an adoption application to a Russian court; (iv) the US applicant G.D.C. in case no. 6033/13, the US applicants M.S.P., A.N.P., S.M., K.M., J.R.V. and M.L.V. in case no. 12275/13, and the US applicants in cases nos. 29197/13 and 32368/13 had failed to comply with Article 4 § 4 of the Bilateral Agreement on Adoption, which provides that adoption of a child from Russia may take place only with the assistance of an authorised organisation; (v) the US applicant G.D.C. in case no. 6033/13, the US applicants D.S.G., B.C., J.W.S., and S.A.K. in case no. 12275/13 and the US applicant in case no. 29197/13 had submitted their adoption applications to a Russian court only after the entry into force of Law no. 272-FZ, being aware that adoption of Russian children by nationals of the United States was forbidden; and (vi) most of the US applicants had failed to appeal against the last judicial decision in their case and none of them had applied for supervisory review.",
"346. The applicants submitted the following with regard to the plea of non-exhaustion raised by the Government. As regards the first and third groups of applicants in case no. 6033/13, their leave to have the cassation appeal examined by the Presidium had been refused. Supervisory review not being an effective remedy for the purposes of Article 35 § 1 of the Convention, the applicants had therefore exhausted all available domestic remedies. As for cases nos. 8927/13 and 10549/13, where the applications for adoption were dismissed by the first-instance courts and the dismissals were upheld on appeal, in the applicants ’ view, lodging a cassation appeal would be ineffective for the purposes of the above provision. In case no. 6033/13 in the part relating to the second group of applicants, case no. 12275/13 in the part related to the first, second, third, fifth and seventh groups of applicants, and cases nos. 23890/13, 26309/13, 29197/13, 32351/13, 32368/13, 42340/13 and 42403/13, the adoption applications had not been accepted by the courts for various reasons, but mostly on the grounds of inadequate representation. Where the applicants submitted the application themselves or through another individual, it had been rejected on the grounds that it could only be submitted through an authorised agency. Where it was submitted through an adoption agency, it was rejected on the grounds that the agency ’ s activity had been banned pursuant to Law no. 272-FZ. The applicants therefore had no possibility of submitting their adoption application to a domestic court. As for case no. 12275/13 in the part relating to the fourth, sixth and eighth groups of applicants, and cases nos. 27161/13, 32224/13, 32331/13, 37173/13 and 38490/13, the applicants had been unable to submit the adoption application to a court before the entry into force of Law no. 272-FZ, which rendered any such application futile. Overall, the applicants maintain that they had no effective domestic remedies in the situation at hand as, irrespective of whether or not they lodged the adoption application with a court, and whether or not they filed any subsequent appeals, a negative outcome was pre-determined by virtue of the ban on adoption by US nationals introduced by Law no. 272-FZ (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 ‑ IV).",
"2. The Court ’ s assessment",
"347. The Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI).",
"348. The Court notes that the US applicants ’ complaints concern the impossibility of completing the adoption procedure initiated in respect of the Russian children due to the entry into force of the ban on adoption introduced by Law no. 272-FZ. It further observes that where the US applicants had submitted an adoption application to a Russian court before the entry into force of Law no. 272-FZ, the application had invariably been rejected by the courts without examination on the merits on one of three grounds: either because the application had not been submitted by an authorised adoption agency, or because it had been submitted by such an agency but the functioning of such agencies in Russia had been banned as a consequence of Law no. 272-FZ, or because the US applicants were not eligible to adopt a Russian child pursuant to Law no. 272-FZ. In cases where the US applicants appealed, the higher courts had invariably upheld the reasoning of the lower courts.",
"349. Accordingly, the Court finds that after the entry into force of Law no. 272-FZ, the US applicants had no possibility of having their adoption applications examined on the merits by a Russian court, and that any such application would have been futile on account of the ban on adoption introduced in the domestic legislation.",
"350. For this reason the Court dismisses the Government ’ s objection with regard to those cases where the adoption application was submitted to a Russian court without the assistance of an authorised adoption agency, where the US applicants did not submit an adoption application to a Russian court, where such an application was submitted after the entry into force of Law no. 272-FZ, and where the applicants had no recourse to further remedies.",
"351. As regards cases nos. 23890/13 and 37173/13, where the US applicants did not complete certain requisite procedural steps prior to the submission of an adoption application to a court, the subject of the applicants ’ complaint is precisely the fact that the adoption procedure was brought to a halt by the introduction of the adoption ban and they were therefore unable to complete the process. Accordingly, the Government ’ s objection should be dismissed in this part as well.",
"C. The right to petition the Court on behalf of the children",
"1. The parties ’ submissions",
"352. The Government maintained that the US applicants had no right to lodge applications on behalf of the children they sought to adopt with the Court. In the first place, they argued that under Article 52 of the Code of Civil Procedure, persons who do not possess full legal capacity can be represented before a court by their parents, adoptive parents, guardians, trustees or other persons so authorised by federal law. Pursuant to Article 35 § 4 of the Civil Code and Article 155.2 § 2 of the Family Code, protection of the interests of orphaned children and children left without parental care is the responsibility of the competent institutions into whose care the children have been placed. As the adoption procedure had not been completed in any of the cases at hand, the US applicants had not acquired the right to act as the children ’ s representatives. In the Government ’ s view, their attempt to introduce complaints before the Court on behalf of the children they sought to adopt constituted an interference with the competence of the organisations who are the children ’ s only representatives, as well as with the sovereignty and public order of the Russian Federation and the exclusive competence of the domestic courts in the matters of international adoption.",
"353. The Government further referred, in particular, to the case of Moretti and Benedetti v. Italy, no. 16318/07, § 33, 27 April 2010, where the Court found that the applicants who were prospective adoptive parents had no right to bring proceedings before the Court on behalf of the child they wished to adopt. The Government also noted that in the case of S.D., D.P., and A.T. v. the United Kingdom, no. 2371 5/94, Commission decision of 20 May 1996, the Commission had decided that the application could be brought on behalf of the three child applicants by the party who had acted in the domestic child - care proceedings as the solicitor appointed to protect their interests, even though he did not have specific powers to represent them before the Court. They pointed out, however, that in that case the object of the application had been limited to complaints that the child - care proceedings had not complied with the Convention requirements and had not sought to examine the substantive decisions reached as regards the children ’ s welfare or the exercise of the local authority ’ s supervisory responsibility. In the Government ’ s opinion, the cases at hand were substantially different from the case of S.D., D.P., and A.T., cited above, precisely because they concerned substantive issues concerning the custody of the children. In their view, no bond had been formed between the US applicants and the children in question, and to hold that the former could represent the latter before the Court would conflict with the exclusive competence of the institutions into whose care the children had been placed.",
"354. The US applicants argued that they needed to have the right to lodge applications on behalf of the Russian children with the Court as the latters ’ interests would otherwise never be brought to the Court ’ s attention and they would be deprived of the effective protection of their rights under the Convention. The applicants pointed out that the Convention organs had acknowledged that the position of the children required careful consideration as “children must generally rely on other persons to present their claims and represent their interests and may not be of an age or capacity to authorise steps to be taken on their behalf in any real sense” and refused to apply a restrictive or technical approach with regard to the issue of the children ’ s representation (see S.D., D.P., and A.T., cited above). In particular, the Commission accepted the application lodged on the children ’ s behalf by a person who was not specifically authorised to represent them before the Convention organs, having acknowledged the “growing recognition of the vulnerability of children and the need to provide them with specific protection of their interests” (see ibid).",
"355. The applicants further noted that in P., C. and S. v. the United Kingdom, (dec.), no. 56547/00, 11 December 2001, the Court had also recognised that biological parents stripped of their parental rights could introduce an application before the Court on behalf of a child after the latter has been adopted by a different family. In that case the Court noted, in particular, that the key consideration was that any serious issues concerning respect for a child ’ s rights should be examined, and that “in the event of a conflict over a minor ’ s interests between a natural parent and the person appointed by the authorities to act as the child ’ s guardian, there is a danger that some of those interests will never be brought to the Court ’ s attention and that the minor will be deprived of effective protection of his rights under the Convention” (ibid).",
"356. The applicants also noted that in cases nos. 23890/13 and 37173/13 the child applicants had themselves authorised Ms. Moskalenko, a lawyer from the International Protection Centre, to represent their interests before the Court.",
"2. The Court ’ s assessment",
"357. The Court considers that the Government ’ s objection raises issues of family ties which are closely linked to the merits of the complaints. The Court thus finds it necessary to join the Government ’ s objection to the merits of the applicants ’ complaints.",
"V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8",
"358. The applicants complained that pursuant to Law no. 272-FZ they had been subjected to discrimination on the grounds of the US applicants ’ nationality in breach of Article 14 of the Convention in conjunction with Article 8. Article 14 of the Convention reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"1. Arguments of the parties",
"(a) The Government ’ s submissions",
"359. The Government contested the applicants ’ argument. They submitted, firstly, that the complaint was incompatible ratione materiae with the provisions of the Convention. In their view, the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article 8 of the Convention and did not fall within the ambit of that provision for the purposes of Article 14 either. The Government pointed out that the right to adopt is not, as such, included among the rights guaranteed by the Convention and that Article 8 does not oblige States to grant a person the status of adoptive parent or adopted child (see X v. Belgium and Netherlands, no. 6482/74, Commission decision of 10 July 1975, and Di Lazarro v. Italy, no. 31924/96, Commission decision of 10 July 1997). Furthermore, according to the Court ’ s case law, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family (see Fretté v. France, no. 36515/97, § 32, ECHR 2002 ‑ I).",
"360. The Government also noted that, in deciding whether “family life” exists, the Convention organs have “taken into account whether, for instance, persons in fact lived together and whether they were financially dependent on one another” (see X and Y v. the United Kingdom, no. 7229/75, Commission decision of 15 December 1977).",
"361. The Government argued that the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article 8 of the Convention for the following reasons: (i) not only was the adoption procedure not at an “advanced stage”, but in cases nos. 23890/13 and 3717 3 /13 it had not even been started in accordance with the Russian domestic procedure; (ii) the children were not financially dependent on the US applicants and were fully provided for by the Russian Federation; and (iii) taking into account the children ’ s age and the psycho-neurological disorders that most of them suffer from, and in view of the fact that meetings with the US applicants took place on a few days only and always in the presence of orphanage staff, it was not possible to ascertain the existence of stable psycho ‑ emotional “family links” between the children and the US applicants. The Government relied in this regard on the expert opinions of A.M., Director of the Charity Fund for Prevention of Social Orphanhood ( Благотворительный фонд профилактики социального сиротства ), and Dr G.S., the Head of the Laboratory for the Management of Social Systems for the Protection of Childhood at the Metropolitan Academy of Finance and Humanitarian Sciences ( Столичная финансово ‑ гуманитарная академия ).",
"362. A. M. stated, in particular, that whereas a child must have experience of a close continuous relationship with one or several adults for his or her normal development, orphanages traditionally function in a way that prevents a child ’ s emotional attachment to a particular person. For this reason children placed in orphanages express “undiscriminating friendliness” towards any adult that visits the orphanage, are eager to call anyone “mummy” and give a hug to a stranger. When such children are placed in a family, it takes a long time spent together with the adults in a family environment for the attachment to their new parents to form. For this reason, in cases where the adopted child is under seven years old, the adoptive parents are generally recommended to take time off work immediately after the adoption in order to spend it with the child, and not to place him or her in a nursery or kindergarten straight away. Accordingly, just a few days, let alone hours, spent together are clearly an insufficient basis for a child to form an attachment to an adult. This would require a much longer period and a deeper relationship.",
"363. Dr G.S. likewise stated that an attachment between a child and an adult cannot not be formed as a result of just a few meetings but requires a much longer and more stable contact. The enthusiastic emotional reaction of a child towards the prospective adoptive parents is a response to individual attention. She also submitted that in Russia the family was recognised as the best place for a child ’ s upbringing and that current policy was aimed at placing children in families and minimising their stay in orphanages.",
"364. As regards case no. 23890/13, the Government submitted that after having been involved in charity work in Chelyabinsk for a number of years, in March 2012 the US applicants had expressed their wish to adopt M.K. However, they had never started the official procedure for adoption and were not registered as prospective adoptive parents in the State databank, having failed to submit the requisite documents. Furthermore, on 23 December 2013 a panel of teachers and psychologists from the orphanage questioned M.K. with a view to establishing his feelings towards the US applicants. They found that, although M.K. had warm feelings towards the US applicants, was glad when they visited him and considered the possibility of living with them, he also talked about the fear of moving to a different country and of the possible development of his relationship with the US applicants. The panel concluded that relations between the US applicants and M.K. were friendly, but that it would be premature to describe them as family relations.",
"365. As regards case no. 42340/13, the Government submitted that K.S. had stayed with the US applicants from 13 December 2010 and 17 January 2011 as part of a hosting programme whose aim was to allow children left without parental care to spend holidays with a Christian family in another country. The Government referred to the case Giusto, Bornacin and V. v. Italy (dec.), no. 38972/06, 15 May 2007, where the Court found that links between the Italian applicant and a girl from Belarus they sought to adopt ‒ who had stayed with them on several occasions as part of a programme that allowed the children affected by the Chernobyl nuclear accident to spend holidays in Italy ‒ were not close enough to be considered to constitute “family life” within the meaning of Article 8. In the Government ’ s view, similar logic applied to the case at hand.",
"366. As regards case no. 37173/13, the Government submitted that, although the US applicants had become aware of V.B. ’ s existence in 2010, they had not applied for his adoption until 2012. Furthermore, they had never obtained a referral to visit and had consequently never met him. Therefore, there were no “family relations” between the US applicants and V.B., irrespective of the fact that he was a biological brother of G.N.Y.H., whom they had adopted earlier.",
"(b) The applicants ’ submissions",
"367. The applicants argued that the relationship between the prospective adoptive parents and the children constituted “family life” within the meaning of Article 8. They pointed out that the Court did not require a biological link between the persons involved in order to find that a relationship constituted “family life”, but relied on the factual existence of close personal ties ( K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII). Nor did the Court find that cohabitation was a requirement sine qua non for the recognition of “family ties” (see Kopf and Liberda v. Austria, no. 1598/06, § 35, 17 January 2012). Furthermore, the protection under Article 8 also extended to cover intended family life (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 62, Series A no. 94).",
"368. They also maintained that the Russian system of international adoption at least allows ‒ if it does not actually require ‒ the prospective adoptive parents and child to develop a relationship before the adoption is finalised through a court order. Firstly, prospective adoptive parents are encouraged to communicate with the children and send photographs so as to introduce the children to their families and homes. Then they must travel to Russia to meet the child in person and bond with him or her. During such visits, which take place over the course of several days, the child spends considerable time with the prospective adoptive parents and engages in various activities. This essentially allows the adults and the child to enjoy their first family experience. After these visits such children often feel uneasy parting from the prospective adoptive parents, fearing that they will not come back. In support of the above submissions the applicants relied on the US applicants ’ personal experience and a written statement concerning the procedure of Russian international adoption provided by Ms L., the founder and director of the Stork Adoption Agency, which specialised in international adoptions in Russia from 1994 to 2013.",
"369. The applicants also contested the Government ’ s submissions on several points. Firstly, they stated that the time spent together by the prospective adoptive parents and children must be sufficient to form a family bond. In particular, the duration of such visits had been agreed with the Russian authorities, who considered it sufficient to subsequently allow the Russian children to be taken to the United States. Secondly, the age of the children was not the most important factor for establishing family ties, as the existence of a family bond between a mother and a new-born child was hardly in dispute. Thirdly, they considered discriminatory the Government ’ s statement to the effect that it was impossible to ascertain the existence of “family links” between the children and the US applicants on account of the children ’ s state of health.",
"370. In the applicants ’ view, due to (i) the very nature of the Russian international adoption system, (ii) the advanced stage of the adoption procedure and (iii) the efforts made by the prospective adoptive parents to complete the procedure, the prospective adoptive parents and children did develop family ties amounting to family life and, therefore, their relationships deserve the protection of “family life” under Article 8 of the Convention.",
"371. As regards case no. 23890/13, the applicants maintain that since 2008 the US applicants and M.K. have become very close. They have always stayed in touch, and since November 2011 they have communicated with each other by different means on a daily basis. M.K. addressed the US applicants as “Mom and Dad”. In the applicants ’ view, their relationship amounts to “family life” within the meaning of Article 8.",
"372. As regards case no. 42430/13, the US applicants decided to adopt K.S. immediately after her five - week stay with them in December 2010 and January 2011. Afterwards they visited her in Russia on three occasions, and K.S. told other children in the orphanage that she was being visited by her family. The US applicants stayed in touch with her, phoning at least once a month with the help of an interpreter. The phone calls had to cease in September 2013, when K.S. was transferred to a different institution. They developed a close relationship over the course of almost three years which, according to the applicants, amounted to “family life” within the meaning of Article 8. They also pointed out that, in contrast to Giusto, Bornacin and V. v. Italy, cited above, the US applicants ’ adoption application had not been refused by a court, but rather the proceedings had been brought to a halt because of the entry into force of Law no. 272-FZ.",
"373. As regards case no. 37173/13, according to the applicants, the most important factor endorsing the existence of family life in this case was the biological link between the child applicants, G.N.Y.H. and V.B., who were brother and sister. As soon as the US applicants learned of V.B. ’ s existence, they cared about him and formed a bond with him through correspondence and phone calls. V.B. specifically expressed his wish to join his sister in the US applicants ’ family in a letter dated 30 April 2013 addressed to G.N.Y.H. In the applicants ’ view, their relationship undoubtedly amounted to “family life” within the meaning of Article 8.",
"374. The applicants argued that the relationships between the prospective adoptive parents and children in the present cases in any event constituted “private life” within the meaning of Article 8. They referred, in particular, to X v. Iceland, (dec.) no. 6825/74, 18 May 1976; Wakefield v. United Kingdom, (dec.) no. 15817/89, 1 October 1990; and Balogun v. the United Kingdom, no. 60286/09, § 47, 10 April 2012.",
"375. The applicants submitted that, even assuming that the relationships between the prospective adoptive parents and the children did not constitute “family life” or “private life” within the meaning of Article 8, they still fell within the ambit of Article 8 for the purposes of Article 14. In their view, having adopted the Bilateral Agreement on Adoption, Russia provided rights extending beyond those expressly guaranteed by the Convention. The Court held that the protection from discrimination enshrined in Article 14 extended to such additional rights, in particular in the context of adoption (see E.B. v. France [GC], no. 43546/02, §§ 47-51, 22 January 2008 ). The applicants contested the Government ’ s argument that the cases at hand were substantially different from E.B., cited above, and Fretté, cited above. They maintained that both E.B. and Fretté related to discrimination in the matter of adoption, and the fact that they concerned discrimination on the grounds of sexual orientation whilst the present cases concerned discrimination on grounds of nationality was immaterial, since the latter was likewise prohibited by the Convention (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV). Accordingly, the present cases fell within the ambit of Article 8 for the purposes of Article 14.",
"2. The Court ’ s assessment",
"376. The Court reiterates at the outset that Article 14 merely complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003 ‑ VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary ‒ but also sufficient ‒ for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention (see Abdulaziz, Cabales and Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 22; Petrovic v. Austria, judgment of 27 March 1998, Reports 1998 ‑ II, § 22; and Biao v. Denmark [GC], no. 38590/10, § 88, ECHR 2016 ).",
"377. Given that the applicants in the present case relied on Article 14 in conjunction with Article 8 of the Convention, the Court further reiterates that the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt (see Fretté, cited above, § 32 and E.B., cited above, § 41). Neither party contests this. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between a child born out of wedlock and his or her natural father, for example, (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI ), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established (see Abdulaziz, Cabales and Balkandali, cited above, § 62), or the relationship that arises from a lawful and genuine adoption (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V).",
"378. A right to adopt is likewise not provided for by domestic law or other international instruments such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption (see E.B., cited above, § 42 and paragraphs 299 - 300 above).",
"379. At the same time, the Court has held the notion of “private life” within the meaning of Article 8 of the Convention to be a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, p. 33, § 29), the right to “personal development” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I) or the right to self-determination as such (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It encompasses elements such as gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41), and the right to respect for both the decisions to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I), including the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose (see S.H. and Others v. Austria ([GC], no. 57813/00, § 82, ECHR 2011.",
"380. The Court also reiterates that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court ’ s case-law (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X, and E.B., cited above, § 48).",
"381. The Court has previously found Article 14 applicable in the cases of E.B. and Fretté, cited above, which concerned proceedings for authorisation to adopt a child, and where the applicants claimed to have been discriminated against on the grounds of their avowed homosexuality (see E.B., cited above, §§ 41-52, and Fretté, cited above, §§ 31-33). The Court stated, in particular, that it was not called upon to rule whether the right to adopt, having regard to the fact that the Convention is a living instrument to be interpreted in the light of present-day conditions, should or should not fall within the ambit of Article 8 of the Convention taken alone, since French legislation expressly granted single persons the right to apply for authorisation to adopt and established a procedure to that end. It further held that where the State had gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – it could not, in applying that right, take discriminatory measures within the meaning of Article 14 (see E.B., cited above, §§ 44-49).",
"382. The cases at hand concern proceedings for the intercountry adoption of Russian children by the US applicants. The US applicants claimed that, as a consequence of the ban on the adoption of Russian children by United States nationals subsequently introduced into Russian law, they had been prevented from completing the adoption procedure, and had thus been discriminated against on the grounds of their nationality, resulting in a violation of the provisions of Article 14 of the Convention taken in conjunction with Article 8.",
"383. The Court observes that the US applicants had a genuine intention to become parents by applying for intercountry adoption at the time when Russian law still provided for such a right. Therefore, what is at issue in the present cases is the US applicants ’ decision to become parents (see S.H. and Others v. Austria, cited above, § 82), and their personal development through the role of parents that they wished to assume vis-à-vis the children. Accordingly, the Court considers that the additional right to apply for adoption and subsequently have a fair treatment of the respective application, granted by Russia at the relevant time, which the US applicants sought to exercise, falls within the general scope of Article 8 of the Convention as pertaining to their “private life”.",
"384. The Court further notes that in the cases in question the US applicants alleged that they had been discriminated against in the exercise of this right on the grounds of their nationality. The latter is a concept covered by Article 14 of the Convention (see Gaygusuz, cited above, § 42, and Biao, cited above, § 89 ).",
"385. Having regard to the foregoing, the Court finds that the facts of the cases fall within the ambit of Article 8 of the Convention, and that Article 14 of the Convention taken in conjunction with Article 8 is applicable in the present case insofar as the complaint concerns the US applicants. Accordingly, the Court dismisses the preliminary objection raised by the Government with respect to the inapplicability of Article 14 in this part.",
"386. The Court further observes that, insofar as the complaint is raised on behalf of the children the US applicants sought to adopt, the ban on adoption was imposed only with regard to the nationality of the prospective adoptive parents. The application of the ban was not based on any of the grounds for discrimination covered by Article 14 of the Convention with respect to the children. Accordingly, the Court finds that the complaints under this provision concern only the US applicants, and holds that Article 14 is inapplicable with regard to the complaint made on behalf of the children the US applicants sought to adopt.",
"387. The Court also reiterates that the preliminary objection raised by the Government with respect to the authority of the US applicants to represent the children they sought to adopt in proceedings before the Court was linked to the merits of the complaints (see paragraph 357 above). However, the Court is not called upon to decide on this issue with regard to Article 14 as it has found this provision applicable only insofar as the complaint concerns the US applicants.",
"388. In the light of the parties ’ submissions, the Court finds that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application but require examination on the merits. It follows that this complaint cannot be declared manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The Government ’ s submissions",
"389. Firstly, as regards the legal framework of the ban on adoption and the relationship between the Bilateral Agreement on Adoption and Law 272-FZ, the Government submitted the following. The Bilateral Agreement on Adoption was only applicable insofar as the domestic laws of the States Parties allowed adoption. In particular, under Article 6 § 2 of the agreement, the conditions under which a child might be adopted were to be determined by the domestic laws of the Country of Origin, that is to say, in the event of the adoption of a Russian child, by Russian laws (see paragraph 326 above). Accordingly, the Bilateral Agreement on Adoption did not contain and could not have contained provisions that would impose on the Russian Federation a duty to transfer Russian children for adoption to the United States of America.",
"390. The Government further submitted that, after the Russian Federation informed the United States on 1 January 2013 that it was intending to terminate the Bilateral Agreement on Adoption, the latter remained in force until 1 January 2014. Effectively, throughout 2013 the agreement applied only in the part relating to the monitoring of the children ’ s wellbeing in the adoptive families. This did not create any conflict with Law no. 272-FZ as the Bilateral Agreement on Adoption did not provide for an obligation on the part of the Russian Federation to transfer Russian children to the United States for adoption without a Russian court decision to this effect.",
"391. The Government also referred to the instructions that the Supreme Court issued in its letter no. 7-VS-224/13 of 22 January 2013 (see paragraph 331 above). They submitted that, although the instructions state that in cases where decisions concerning the adoption were taken by the courts before 1 January 2013 children should be transferred to the adoptive parents, in practice the instructions of the Supreme Court also meant that ‒ despite the fact that the Bilateral Agreement on Adoption remained in force for a further year ‒ Russian courts with the competence to examine adoption cases should apply Law no. 272-FZ, which provided for a ban on the adoption of Russian children by United States nationals with effect from 1 January 2013.",
"392. As regards compliance with Article 14 of the Convention, the Government submitted that the ban on the adoption of Russian children by US nationals did not constitute discrimination on the grounds of nationality but was based on objective and reasonable grounds and the children ’ s best interests. Referring to Schwizgebel v. Switzerland, no. 25762/07, § 93, ECHR 2010 (extracts), they argued that the State enjoyed a wide margin of appreciation in matters concerning adoption. In the Government ’ s view, the cases at hand were different from Fretté and E.B. cited above, in that those cases were concerned with discrimination on the grounds of sexual orientation, while in the cases at hand the US applicants were not discriminated against on the grounds of either their sex or their sexual orientation. Nor did they belong to any vulnerable group. Furthermore, whereas those two cases were concerned with adoption within the State of the applicants ’ nationality and residence, the cases at hand involved intercountry adoption. Unlike the applicants in Fretté and E.B., who were refused licences to be adoptive parents and consequently were not permitted to adopt a child as a matter of principle, the US applicants have the possibility of seeking to adopt a child in other States that permit intercountry adoption.",
"393. The Government also argued that States had wide discretion in matters of international adoption. They pointed out that some States joined the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption as receiving States only, meaning that they had no intention of transferring children who were nationals of that State for adoption to other States. Furthermore, there were numerous instances when a particular State had suspended intercountry adoption either as a whole or with respect to particular States. The Government referred, in particular, to the ban on adoption from Cambodia introduced by the United Kingdom in 2005; the ban on intercountry adoption of Romanian children introduced by Romania in 2001, which remained in force until Romania ’ s accession to the European Union; the ban on intercountry adoption introduced by Guatemala in 2007; and the ban on adoption of Vietnamese children by the US nationals introduced by Vietnam in 2008. The Government also referred to the legislative provisions of a number of countries which either permitted intercountry adoption in exceptional cases only or made it subject to a number of strict requirements, which usually included the impossibility of finding an adoptive family for the child within the State.",
"394. The Government also stated that, according to information from the Ministry of Education and Science, over the course of the past three years adoptive parents from the United States had failed to provide reports about the wellbeing of 653 children adopted from Russia in 1,136 instances. Furthermore, whereas between 1992 and 2012 US nationals had adopted 61,625 Russian children, on 1 January 2013 only 37,438 adopted children from Russia had been registered with the competent Russian agencies abroad, as required under the terms of the adoption agreements.",
"395. The Government pointed out that States also enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 72, Reports, 1996 ‑ IV). They maintained that in the cases at hand the difference in treatment pursued a legitimate aim, namely the protection of children ’ s rights, and was based on objective and reasonable grounds. They submitted, in particular, that ‒ according to the assessment of some NGOs ‒ there was a hidden “epidemic of violence” in the United States in respect of minors. On average, five children died every day because of abuse or negligence perpetrated by adults (in 80% of cases biological or adoptive parents). According to a report by the Administration for Children and Families of the US Department of Health and Human Services (DHHS), in 2012 approximately 1,640 children died for the above reasons, that is to say 2. 2 children per 100,000 residents. According to the DHHS information, every year the guardianship agencies receive approximately 3,000,000 reports concerning the improper treatment of approximately 6,000,000 minors. According to information from the NGO the National Alliance for Children, in 2012 the US social services provided medical, psychological and other assistance to 286,500 child victims, of whom 198,000 were victims of sexual abuse, 49,000 were victims of physical abuse and 17,500 were victims of negligence. Sometimes it was social workers who were the perpetrators. At the same time, due to insufficient funding, the social services could not cope with the growing number of instances of cruel or negligent treatment of children. For example, an examination of the child protection social service in the State of Illinois revealed that over 6,500 reports of child abuse remained uninvestigated. The Government referred to an opinion by unnamed experts who believed the situation in other US states to be similar.",
"396. The Government further submitted that, although no official statistics were available, the Russian Embassy in the United States had cognisance of at least twenty children adopted from Russia who had been killed by their American adoptive parents. In the course of the previous five years Russian agencies in the United States had provided legal and other assistance to approximately 500 Russian minors who had been victims of mistreatment by their adoptive parents. Systematic violations of minors ’ rights were revealed in the course of two visits by Russian consular staff to an orphanage for adopted Russian children called the “Ranch for Kids” in the State of Montana, where 400 children were placed in 2006. At least twenty-six Russians were listed as victims of an underground internet- based market for the re-adoption of American and foreign children, an activity which was being investigated by Reuters.",
"397. According to the Government, one of the factors that contributes to the inadequate legal protection offered to children adopted from Russia is the discrimination inherent in the American judicial system. None of the adoptive parents responsible for the deaths of the twenty Russian children was sentenced to either capital punishment or a life sentence of the type often applied for this type of crime. Furthermore, while the average term of imprisonment of those found guilty of murdering American children was thirteen years ‒ not taking into account life sentences ‒ in respect of the adoptive parents of Russian children it was only eight and a half years, and many of them received suspended sentences or were exempted from punishment altogether. The Government provided information concerning the deaths of nineteen Russian children who had been adopted by US nationals between 1996 and 2013. In fifteen cases their adoptive parents had been found responsible for their deaths and sentenced to terms of imprisonment ranging from sixteen months to thirty-five years. In two cases they were acquitted and in two cases the investigation is still pending. According to the Government, they also obtained information about ten cases in which adopted Russian children had been subjected to abuse or cruel treatment by their US adoptive parents. Criminal proceedings against the parents had been instituted by the Russian Investigative Committee in respect of some of these cases, together with several others ‒ thirteen altogether.",
"398. The Government commented that the Russian authorities had encountered very poor cooperation on the part of the US authorities whenever they had been made aware of any breach of the rights of children adopted from Russia. The US authorities had regularly failed to provide prompt information concerning such incidents or to arrange access to the children for Russian consular staff and had generally been reluctant to help. Attempts to improve the situation, even during the period of two months when the Bilateral Agreement on Adoption was in force, had proved futile. In particular, certain initiatives on the part of Russia, such as setting up a database of Russian children adopted by US nationals, had been rejected by the United States. Furthermore, the United States Department of State, the interlocutor under the Bilateral Agreement on Adoption, regularly failed to provide comprehensive information in response to queries from the Russian authorities with respect to situations where harm had been caused to the life or health of Russian adopted children, citing the fact that each State had its own laws and procedures. According to the Government, the Russian authorities had not encountered such problems with any other State in the context of international adoption. Accordingly, the ban on the adoption of Russian children by US nationals did not constitute discrimination but was a measure of last resort prompted by (i) the statistics recording instances of death, injury, sexual abuse and neglect caused to Russian children adopted in the United States and (ii) lack of proper cooperation on the part of the United States that would help to ensure the safety and psychological well-being of Russian children. In the Government ’ s view, the fact that in the United States there are good medical and educational programmes for children with special needs cannot serve as a reason for renewing intercountry adoptions between Russia and the United States. They also pointed out that the provision of medical treatment to disabled children abroad is subject to regulation by other laws and has not been suspended.",
"399. Finally, the Government submitted that the laws and international treaties of the Russian Federation embraced the principle behind the 1989 United Nations Convention on the Rights of the Child, whereby intercountry adoption may be considered if the child cannot be placed in an adoptive family in the child ’ s country of origin (see paragraph 300 above). At the current time Russia was taking measures to encourage adoption by Russian nationals, as reflected in Presidential Decree no. 1688 of 28 December 2012 (see paragraph 321 above), and consequently to reduce the number of children in need of intercountry adoption. As a result of such efforts, in the recent years there had been a 13 % increase in the number of children placed in foster families (76% in 2001 and 86% in 2013), whereas the number of children placed in foreign families decreased ( from 29. 6% in 2009 to 18% in 2013). At the same time there had been a 100% increase in the number of Russian families willing to adopt a child.",
"400. The Government also provided the following information. In 2013 fifty-three Russian children were transferred to adoptive parents in the United States on the basis of court decisions delivered in 2012 prior to the entry into force of the adoption ban. As regards the request from the United States to allow the adoption procedure to continue in 259 cases where the prospective adoptive parents had allegedly met the Russian children they were seeking to adopt, the Russian Ministry of Education and Science conducted a check which produced the following results: (i) 164 children had been placed for adoption into Russian families; (ii) the biological mother ’ s parental authority was restored in respect of one child; (iii) in ninety-four cases the assertions made by the American party in the case were found not to correspond to the actual circumstances, in particular as regard contact between the prospective adoptive parents and children. The request was refused with respect to twenty-two cases, and in thirty-one cases the information provided by the American party was incomplete as it contained neither the child ’ s surname nor place of residence.",
"(b) The applicants ’ submissions",
"401. The applicants argued that the ban on adoption introduced by Law no. 272-FZ was in breach of the Bilateral Agreement on Adoption. In their view, it was contrary to the agreement ’ s object and purpose as it rendered meaningless the procedural requirements enshrined therein and thereby prevented decisions being taken in the best interests of the child (see Article 3 § 1 of the Bilateral Agreement on Adoption in paragraph 326 above).",
"402. The applicants contended that by excluding only US nationals from its international adoption programme, the Russian authorities were subjecting US applicants to differential treatment based on their nationality in breach of the Convention. Before December 2012 the US applicants had had the right to adopt children from Russia on an equal footing with other foreigners. They had started the procedure in compliance with the requirements of both the US and Russian authorities. However, the procedure had been cut short by the introduction of the ban on adoption which only extended to the US nationals and was devoid of any objective and reasonable justification.",
"403. As regards the Government ’ s reference to instances involving the abuse and neglect of Russian adoptees in the United States, the applicants submitted that, apart from the fact that they constituted a tiny proportion of the overall number of Russian children adopted by US nationals in the course of the past fifteen years, the Government had provided neither any evidence that the situation was better with regard to other countries whose nationals were still eligible for adoption of Russian children, nor any information concerning the treatment of children in Russian orphanages. Furthermore, not only had most of the incidents occurred before the entry into force of the Bilateral Agreement on Adoption, but ‒ according to the Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010 (see paragraph 322 above) ‒ they constituted the main reason for its adoption. In the applicants ’ view, the circumstances could not have changed so drastically as to compel the Russian Federation to unilaterally terminate the Bilateral Agreement on Adoption less than two months after its entry into force on account of precisely those incidents in respect of which the treaty came about.",
"404. As regards the Government ’ s argument that the aim behind the ban on the adoption of Russian children by US nationals was to encourage the adoption of Russian children by Russian families, the applicants submitted that Article 24 of Government Decree no. 275 of 29 March 2000 in fact allowed adoption by foreign nationals only when it appeared to be impossible to place the children into the care of Russian nationals permanently residing in Russia ( see paragraph 313 above ). The Bilateral Agreement on Adoption fully respected this provision (see Article 3 § 4 in paragraph 326 above). In the applicants ’ view, the total ban on intercountry adoptions by the US nationals could not, on the one hand, encourage Russian nationals to adopt Russian children in principle. On the other hand, even if it could, such a measure would not be sufficient for this purpose as long as other foreigners could still adopt Russian children.",
"405. Finally, the applicants contended that the ban on adoption, even assuming that it pursued the aims stated by the Government, constituted a disproportionate measure. By contrast to the Bilateral Agreement on Adoption, which in their view represented a reasonable and constructive response to the incidents of child abuse in adoptive families, the ban on adoption was a disproportionate reaction which ignored the best interests of the children. By excluding an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia, or even by delaying the adoption pending the search for a Russian family despite the availability of a suitable American family, the ban was jeopardising the wellbeing of those children.",
"406. For the above reasons the applicants contended that Law no. 272 ‑ FZ and its application to the adoption proceedings in the present cases constituted discrimination on the grounds of nationality in breach of Article 14 in conjunction with Article 8.",
"2. The Court ’ s assessment",
"(a) General principles",
"407. It is the Court ’ s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of individuals in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Schalk and Kopf, cited above, § 96, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention (see Gaygusuz, cited above, § 42, Reports 1996 ‑ IV; Koua Poirrez v. France, no. 40892/98, § 46, ECHR 2003-X; Andrejeva v. Latvia [GC], no. 55707/00, § 87, ECHR 2009; Ponomaryovi v. Bulgaria, no. 5335/05, § 52, ECHR 2011; and Biao, cited above, § 93).",
"(b) Whether there was a difference in treatment",
"408. The Court must first establish whether there was a difference in treatment based on the US applicants ’ nationality.",
"409. It observes that in 20 10-12, when the US applicants initiated the adoption procedure with a view to adopting a child from Russia, Russian legislation had permitted intercountry adoptions when it appeared impossible to place the child in the care of Russian nationals permanently residing in Russia or in the care of the children ’ s relatives, irrespective of the latter ’ s nationality and place of residence (see paragraphs 313 above). Russian domestic law did not contain any specific provisions concerning the eligibility of nationals of a particular State for intercountry adoption. The US nationals could thus apply for intercountry adoption of a Russian child on an equal footing with other foreign nationals.",
"410. Law no. 272-FZ, which entered into force on 1 January 2013, introduced a general ban on the adoption of Russian children by US nationals. The Court takes note of the applicants ’ argument that Law no. 272-FZ was in breach of the Bilateral Agreement on Adoption. It observes, however, that the agreement set up a procedure and additional safeguards for intercountry adoptions between the United States and Russia and that Article 6 § 1 of the agreement expressly provided that \"[t] he adoption and transfer of a child under this Agreement shall be carried out in accordance with the domestic laws of the Parties and ... [t]he requirements for prospective adoptive parents shall be determined by the domestic laws of the Parties\" (see paragraph 326 above). Therefore, the Bilateral Agreement on Adoption did not create a substantive right to intercountry adoption, which could only exist by virtue of the domestic law of the States parties. Although such a right existed in Russian law in respect of US nationals, among others, prior to 1 January 2013, the entry into force of Law no. 272-FZ on that date eradicated such a right in respect of US nationals. Therefore, unlike nationals of other States, US nationals were no longer eligible to apply for intercountry adoption of Russian children.",
"411. Accordingly, the Court finds that there was a difference between the treatment of US applicants and that of other foreign nationals who were candidates for intercountry adoption of Russian children on the grounds of the nationality of the former.",
"(c) Whether the difference in treatment had objective and reasonable justification",
"412. The Government justified the introduction of the ban on the adoption of Russian children by US nationals with reference to two main aims. Firstly, protecting the children ’ s best interests. In this regard they referred to a number of instances of ill-treatment of Russian children adopted by US nationals and the allegedly poor cooperation on the part of the US authorities in this regard. And secondly, encouraging adoption by Russian nationals.",
"413. The applicants contested both the Government ’ s stated aims. As regards the first aim, they argued that the number of such incidents had been very small and that there was no evidence that the situation was any better in other States or in Russia itself. Moreover, the existence of such incidents had constituted the main reason for the Bilateral Agreement on Adoption, which had introduced additional safeguards in this respect. As regards the second aim, the applicants pointed out that adoption by foreign nationals had in any event only been allowed when it appeared to be impossible to place the child in the care of Russian nationals permanently residing in Russia ( see paragraph 313 above ). In their view, the measure in question was in any event inadequate for this purpose as other foreigners were still able to adopt Russian children.",
"414. The Court accepts that, in principle, protecting the children ’ s interests and encouraging adoption at national level constitute legitimate aims. It will further examine whether the measure in question constituted an adequate response to the aims stated by the Government.",
"415. The Court has already noted that the right to adopt is not guaranteed by either the Convention or other international legal instruments (see paragraph 378 above). Likewise, there is no obligation under international law for a State to provide for such a right.",
"416. The Court reiterates, however, that the prohibition of discrimination enshrined in Article 14 also applies to additional rights provided by States that fall within the general scope of any Convention right, and that where a State has gone beyond its obligations under the Convention in creating such a right it may not, in the application of that right, take discriminatory measures within the meaning of Article 14 (see paragraph 380 above).",
"417. In the case at hand Russia voluntarily provided for a right to intercountry adoption which extended to US nationals, among others. This right was subsequently extinguished in respect of the latter with effect from 1 January 2013. The Court does not question the authority of a State to discontinue intercountry adoptions partially or completely. It must ascertain, however, that such a measure is carried out in a manner compatible with the State ’ s obligations under the Convention.",
"418. As regards the aims advanced by the Government by way of justification for the measure in question, the Court notes that ‒ according to the Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010 (see paragraph 322 above) ‒ tragic incidents involving Russian children adopted in the US for which the adoptive parents bore responsibility constituted the main reason for concluding the treaty, aimed as it was at providing stronger legal safeguards for such intercountry adoptions. It further notes that most of the incidents referred to by the Government had occurred before the entry into force of the Bilateral Agreement on Adoption, and that the total ban on adoption of Russian children by US nationals was introduced only two months after its entry into force. Although the Government maintained that the ban on adoption was \"the last resort\" (see paragraph 398 above), the Court observes that the Government did not produce any evidence of specific incidents occurring within that short period of time, when the additional safeguards introduced by the Bilateral Agreement on Adoption could hardly have had any impact.",
"419. The Court also notes that Article 3 § 4 of the Bilateral Agreement on Adoption restated the provision of the Russian law to the effect that intercountry adoption of a child from Russia was allowed only when it appeared impossible to place him or her with a family in Russia (see paragraph 326 above).",
"420. Accordingly, the Court retains doubts as to whether or not the ban on adoption in question constituted an adequate response to the aims stated by the Government. However, in order to decide whether or not the measure was compatible with the applicants ’ rights under Article 14 of the Convention, it must examine the way in which it was implemented.",
"421. The Court observes that intercountry adoption is a relatively long and complicated procedure involving multiple stages in both States concerned and requires significant time and effort on the part of the prospective adoptive parents. In cases where the procedure was initially aimed at the adoption of a particular child, or after the prospective adoptive parents had met the child at a later stage, it also involves considerable emotional resources as an attachment begins to form between the adults and the child.",
"422. In the cases at hand the US applicants had initiated the intercountry adoption procedure in 20 10 - 12, when it was still provided for in Russian law. By the date of introduction of the adoption ban on 1 January 2013, most US applicants had met the child they were seeking to adopt, had spent a certain amount of time with him or her, and had either submitted the adoption application to a Russian court or had completed all the prior stages of the procedure and had their file ready for submission to a court. Accordingly, these US applicants may be considered to have been in the final stages of the adoption procedure.",
"423. The Court notes that in cases nos. 23890/13, 37173/13 and 42340 /13 [9], the US applicants had not completed certain procedural steps in Russia that are required prior to submitting an adoption application to a court. It observes, however, firstly, that in any event these proceedings were already in progress and, secondly, that these cases involved situations where the proceedings initially concerned the adoption of a particular child: in case no. 23890/13 that of a boy whom the applicants had known for several years, in case no. 42340/13 [10] that of a girl who had previously stayed with the US applicants as part of the orphan hosting programme, and in case no. 37173/13 [11] that of the biological brother of the US applicants ’ previously adopted daughter. In all these cases the Russian authorities were aware of the adoption proceedings pending in respect of these children.",
"424. In the Court ’ s view, having initiated the adoption proceedings at the time when Russia expressly permitted United States nationals to apply for intercountry adoption of Russian children, the US applicants could reasonably have believed that their applications for adoption would be fairly assessed on the merits. The Court has not been provided with any cogent argument to enable it to distinguish between the US applicants who were already at different stages of the adoption proceedings when the ban on adoption was introduced.",
"425. The Court is mindful of the fact that adoption proceedings do not necessarily guarantee a favourable outcome as the final decision always rests with the domestic courts of the State of the child ’ s origin. However, in the cases at hand the US applicants had not received a negative decision based on the assessment of their individual circumstances by a competent court. Instead, the adoption proceedings had been brought abruptly to an end on account of the automatic ineligibility that unexpectedly came into effect over the course of ten days. No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. As at the date of this judgment, some of them are still in orphanages.",
"426. Accordingly, given that (i) the adoption proceedings in the cases at hand were instituted at the time when applying for intercountry adoption was expressly permitted by Russia and (ii) they were pending at the time of introduction of the ban on adoption by virtue of Law no. 272-FZ, the Court considers that the Government have failed to show that there were compelling or very weighty reasons to justify the blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the United States, irrespective of the status of the adoption proceedings already started and their individual circumstances. It thus constituted a disproportionate measure in relation to the aims stated by the Government. The Court therefore concludes that the difference in treatment was discriminatory in breach of Article 14 in conjunction with Article 8.",
"427. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8.",
"VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"428. The applicants complained under Article 8 of the Convention that, given that they had been at an advanced stage of the adoption procedure and a bond had already been formed between the prospective adoptive parents and the children, the introduction and application to them of the ban on the adoption of Russian children by nationals of the United States provided by Law no. 272-FZ constituted an unlawful and disproportionate interference with their family life. Article 8 of the Convention reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"429. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.",
"430. Having regard to its finding under Article 14 of the Convention taken in conjunction with Article 8 (see paragraph 427 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 8 of the Convention taken alone. For the same reason the Court considers that it is not called upon to rule on the preliminary objection raised by the Government, which has been linked to the merits of the complaints (see paragraph 357 above).",
"VII. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"431. The applicants further contended that most children concerned were in need of special medical care that would only be available to them in the United States and complained that depriving them of such medical assistance amounted to treatment prohibited by Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Arguments of the parties",
"1. The Government ’ s submissions",
"432. The Government contested the applicant ’ s assertion that, on average, the quality of medical care available to children with special needs in Russia was below that available in the United States. They argued that, in particular, the children whom the US applicants were seeking to adopt did not require medical treatment of a kind that is available only in the United States. According to the Government, the children in question had been receiving and continued to receive the medical support that was appropriate to their diagnosis. They submitted detailed information concerning the medical care provided to each child, including the medical tests conducted, doctors ’ examinations and the treatment prescribed, including placement in specialised medical institutions.",
"433. The Government further maintained that, as a general rule reflected in Article 123 of the Family Code as amended on 2 July 2013, children left without parental care are placed in orphanages only temporarily until a suitable adoptive or foster family can be found for them. Insofar as the applicants had appeared to assert that the delays in physical, cognitive, motor and speech development that some children suffered from had been due to or aggravated by their placement in an orphanage, the Government also submitted that most children placed in orphanages usually come from dysfunctional and disadvantaged families and often have serious congenital pathologies. About 30% of them have disabilities. For this reason most orphanages are specialised so as to provide better care for children with particular needs.",
"434. As regards the general conditions in Russian orphanages, the Government provided the following information. The maximum capacity of Russian orphanages is 79,888 children. In 2013 they accommodated 65,383 children and there was therefore no question of overcrowding. Catering in the orphanages is organised in accordance with guidelines based on nutritional value, vitamin content and a varied diet and is subject to strict control. Orphanages have both educational and medical staff. All orphanages for children with special needs have medical licences and qualified medical staff as well as the equipment required to provide the requisite medical aid. Where necessary, children are placed for treatment in an external specialist medical institution. Children with neurological pathologies attend a course of treatment annually in a neurological hospital. Providing medical care for HIV-infected children constitutes a priority. Up to 80% of children who had been treated in the Republican Hospital for Infectious Diseases, set up in 1991 in order to provide care for HIV-infected children, were placed in foster families. Those children who could not be placed in families remain in orphanages with other children to ensure they experience a normal socialisation process. In Russia there are no specialised orphanages for HIV-infected children where they would be isolated.",
"435. The Government also submitted that in recent years there had been significant changes in Russia ’ s policy concerning children left without parental care. Orphanages now have to provide conditions that would be closer to a family environment involving, in particular, smaller groups and reduced staff turnover. In 2013-14 the adoption procedure was simplified to ensure the speedier placement of children in families.",
"436. The Government thus considered as unfounded the applicants ’ allegations that the adoption ban had deprived the children in question of the requisite medical assistance and contended that there had been no violation of Article 3 in this regard.",
"2. The applicants ’ submissions",
"437. The applicants submitted that they were unable to provide specific information with regard to each child as the medical files were in the Government ’ s possession and, in their view, the information provided to the Court by the Government was incomplete. In their submissions they relied on expert statements and academic works concerning the general situation with respect to the medical treatment available to children with special needs both in the United States and in Russian orphanages.",
"438. In particular, in their opinion of 16 September 2014, Drs G. and McC. of the University of Pittsburgh, Pennsylvania, provided an overview of the services and treatment generally available to children with special needs in the United States. They further described deficiencies in the care available to such children in Russian orphanages, including large group sizes, an insufficient number of caregivers, their limited interaction with the children, the frequent transfers of children between different groups and caregivers, the inadequacy of the caregivers ’ training for working with children with special needs, the use of allegedly ineffective therapeutic methods, and the failure to use other probably more effective therapeutic techniques. They concluded that the adoptive parents were very likely to make use of the services available to their children in the United States, whereas similar services were generally unavailable in Russia.",
"439. In an opinion dated 30 June 2014 Dr Sh., Director of the International Adoption Clinic at Hasbro Children ’ s Hospital in Providence, Rhode Island, stated that the medical care provided to children in Russian orphanages varied greatly depending on the location of the orphanage. Overall he described the medical care available as “reasonably good” although not the best possible and, in his view, it fell short of that available to children with special needs in the United States. He emphasised that, in any event, no institution could be a substitute for caring parents.",
"B. Submissions of the third-party interveners",
"1. Submissions of the Harvard Law School ’ s Child Advocacy Program",
"440. Referring to a number of academic works and, in particular, the Bucharest Early Intervention Project (BEIP), the Harvard Law School ’ s Child Advocacy Program (CAP) argued that extensive social science research regarding both domestic and international adoption over many decades had demonstrated the importance of placing children in permanent adoptive homes as early in life as possible. According to the CAP, research into early brain development has confirmed that nurturing parenting in a child ’ s early months and years is vital to normal physical, emotional and intellectual development, and delays or disruptions in providing such nurturing limit children ’ s future potential. Age at placement regularly proves to be the most important factor in predicting the success or failure of adoptive placement, with children who are placed at a younger age doing the best.",
"441. Referring once again to the BEIP and other academic sources, the CAP argued that institutions for children left without parental care caused devastating damage to children, affecting their intellectual and emotional capacity and potential. Russian institutions in particular are described as particularly problematic. In this regard the CAP included references to two reports, according to which in Russia “one in three children who leaves residential care becomes homeless, one in five ends up with a criminal record and up to one in ten commits suicide” [12] and “95% of Russian children who grow up in orphanages end up on the streets, unable to function, and are very likely to die shortly after their eighteenth birthdays” [13].",
"442. The CAP further maintained that children with disabilities were particularly likely to grow up with limited chances for a fulfilling life of loving connection and social involvement. In order to realise their potential, access to specialised care combined with nurturing permanent parenting was essential. The United States had a long tradition of special needs adoption, comparable with that of few, if any, other countries, characterised by (i) the high number of prospective adoptive parents willing to adopt children with significant special needs; (ii) studies showing that special needs adoptions generally show the same kind of satisfying family relationships as those formed in other adoptive families; and (iii) highly developed health care services for children with special needs.",
"443. In the CAP ’ s view, the argument of critics of international adoption that placing children across racial or national lines must in some way be problematical has never been supported by any evidence of actual harm to the children. As the world became more global, the idea that children belonged in some essentialist sense with their racial or national groups of origin was outdated. In view of the foregoing, the CAP considered that Article 1 of the Convention created a positive obligation for the States to promote the adoption of the unparented and to place them without delay and undue disruptions with the first available permanent nurturing family.",
"2. The Government ’ s comments on the third-party intervention",
"444. The Government pointed out that the principle of the subsidiary nature of international adoption was enshrined in Article 21 of the United Nations Convention on the Rights of the Child, to which Russia was a party but the United States was not. In their view, the CAP ’ s assertion that the idea that children belonged with their racial or national groups of origin was outdated constituted an attempt to discredit the principle of the subsidiary nature of international adoption and to violate the child ’ s right to preservation of his or her identity, including nationality, as protected by Article 8 of the United Nations Convention on the Rights of the Child.",
"445. The Government maintained that the domestic legislation conformed fully with the United Nations Convention on the Rights of the Child, and the fact that the US applicants could not adopt the children in question did not mean that the latter would remain unparented. Steps were being taken to find adoptive families for them in Russia, and in a number of cases the children had already been adopted.",
"446. The Government contested the statistical information provided by the CAP with respect to Russian institutions for children left without parental care (see paragraph 441 above), which they described as unsubstantiated and untrue. They also contested the CAP ’ s reliance on the BEIP findings (see paragraph 440 above) and attached an expert opinion from M., the Head of the Bekhterev Brain Institute of the Russian Academy of Science, to the effect that brain scanning was unable to establish connections between cognitive function of the brain and the child ’ s upbringing in a biological family, adoptive family or an orphanage.",
"447. With respect to the CAP ’ s assertion that the United States provided conditions for adoption of children with special needs comparable with few, if any, other countries, the Government pointed out that the children involved in the present cases had received the full range of medical care appropriate to their diagnosis, which had been provided by the leading Russian clinics. They saw no reason to believe that certain types of medical care would be unavailable to them in Russia and were only available in the United States.",
"C. Admissibility",
"448. The Court reiterates that the preliminary objection raised by the Government with respect to the authority of the US applicants to represent, in proceedings before the Court, the children they were seeking to adopt was linked to the merits of the complaints (see paragraph 357 above). However, the Court is not called upon to decide this issue with regard to Article 3 as the complaint is in any event inadmissible on the following grounds (see Giusto, Bornacin and V. v. Italy, cited above ).",
"449. The Court observes that it is not its task to rule on the alleged merits and shortcomings of the care available to children with special needs in Russia and the United States in general. Its analysis is focussed on the availability in Russia of the appropriate medical care for the children concerned and, should it be found to be unavailable, on the question of whether discontinuation of the adoption proceedings, which prevented the children from moving to the United States to live with their adoptive parents, deprived them of access to such care in breach of Article 3 of the Convention.",
"450. The Court notes that the information provided by the applicants is largely of a general nature. They admitted that they could not provide specific information with regard to each child and alleged that this was due to the medical files ’ being in the Government ’ s possession.",
"451. The Court observes, however, that the Government provided detailed information with regard to each child, describing the diagnosis, the medical tests carried out and the treatment made available, including, as applicable, consultations with medical specialists, placements in specialised institutions and any surgery carried out (see paragraph 432 above). The Court observes that the treatment in each case was prescribed by doctors who had examined and tested the children in person on many occasions, and it sees no reason to doubt the accuracy of their conclusions (see Lebedev v. Russia (dec.), no. 4493/04, 18 May 2006).",
"452. In these circumstances, the Court concludes that the children in question received adequate medical care in Russia. The situation complained of was therefore not such as to disclose any appearance of an issue under Article 3 of the Convention.",
"453. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"454. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Pecuniary damage",
"455. The applicants claimed different amounts in respect of pecuniary damage, including expenses incurred by them within the framework of the adoption procedure in the United States, as well as in certain cases travel expenses relating to the US applicants ’ trips to Russia, including meals and accommodation, and payments for translation services and the notarisation of documents.",
"456. The Government contested the claims, arguing that they were unsubstantiated and excessive. They submitted, in particular, that the adoption procedure in Russia is exempt from any fees or taxes. Insofar as the applicants incurred fees in the United States or paid for the services of adoption agencies, the Russian authorities could not be held responsible for such costs. Furthermore, there was no guarantee that the domestic courts would have granted the adoption applications, and it would be improper for the Court to speculate as to what possible outcome the adoption proceedings might otherwise have had. The Government further pointed out that the applicants had failed to specify how the amounts claimed by them related to the alleged violation. They also contested the amounts claimed, arguing that in many instances they were not corroborated by documents submitted by the applicants.",
"457. The Court has noted in paragraph 425 above that adoption proceedings do not necessarily guarantee a favourable outcome, as the final decision always rests with the domestic courts. Accordingly, prospective adoptive parents inevitably run the risk that the expenses they incur in the course of the adoption proceedings will have been to no avail. The Court cannot speculate as to what the outcome of the adoption proceedings in the cases at hand might have been if the violation of the Convention had not occurred (see, mutatis mutandis, Schmautzer v. Austria, judgment of 23 October 1995, Series A no. 328 ‑ A, § 44, and Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997 ‑ I, § 85). Therefore, the Court finds it inappropriate to award the applicants compensation for pecuniary damage.",
"B. Non-pecuniary damage",
"458. In case no. 27161/13 each applicant claimed 30,000 United States dollars (USD) in respect of non-pecuniary damage, and in cases nos. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13 and 42403/13 each applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage on account of the suffering and distress they suffered as a result of the adoption ban introduced by Law no. 272-FZ. They claimed an additional EUR 20,000 in respect of each child applicant who remained in an orphanage awaiting adoption. The US applicants submitted that after they had initiated the adoption procedure, completed its numerous stages and bonded with a particular child, they had been deprived of the possibility of finalising the adoption process and creating the family they had envisaged. Furthermore, as a result of this measure, some of the US applicants were permanently deprived of the possibility of adopting a child due to their age and/or changes in their financial situation. The US applicants ’ mental suffering was aggravated by the feeling of humiliation and injustice caused by their being subjected to a discriminatory measure on the grounds of their nationality.",
"459. The Government contested the claims, arguing that they were unsubstantiated and excessive.",
"460. The Court considers that the applicants must have suffered non ‑ pecuniary damage on account of discriminatory treatment following the institution of the adoption proceedings that cannot be sufficiently compensated for by the mere finding of a violation of Article 14 taken together with Article 8. Making its assessment on an equitable basis, it awards the following amounts in respect of non-pecuniary damage according to the table below :",
"Application no.",
"Name of the applicant(s)",
"Amount",
"6033/13",
"A.J.H. and J.A.H",
"EUR 3,000 jointly",
"G.D.C.",
"EUR 3,000",
"J.M. and A.M.",
"EUR 3,000 jointly",
"8927/13",
"J.J. and Jn.J.",
"EUR 3,000 jointly",
"10549/13",
"J.E.L. and A.M.L.",
"EUR 3,000 jointly",
"12275/13",
"M.S.P. and A.N.P.",
"EUR 3,000 jointly",
"D.S.G.",
"EUR 3,000",
"B.C. and J.W.S.",
"EUR 3,000 jointly",
"T.L.B.-S.",
"EUR 3,000",
"S.M. and K.M.",
"EUR 3,000 jointly",
"Q.S. and W.S.",
"EUR 3,000 jointly",
"S.A.K.",
"EUR 3,000",
"C.B. and T.B",
"EUR 3,000 jointly",
"23890/13",
"M.W. and D.W.",
"EUR 3,000 jointly",
"26309/13",
"C.Z. and S.Z.",
"EUR 3,000 jointly",
"27161/13",
"S.S. and G.S.",
"EUR 3,000 jointly",
"29197/13",
"C.M.S.",
"EUR 3,000",
"32224/13",
"R.K.B. and T.B.",
"EUR 3,000 jointly",
"32331/13",
"D.M.L. and De.M.L.",
"EUR 3,000 jointly",
"32351/13",
"J.F.B.",
"EUR 3,000",
"32368/13",
"L.A.P. and J.N.T.",
"EUR 3,000 jointly",
"37173/13",
"J.W.H. and A.M.H.",
"EUR 3,000 jointly",
"38490/13",
"A.B.",
"EUR 3,000",
"42340/13",
"M.B. and D.B.",
"EUR 3,000 jointly",
"42403/13",
"M.M. and J.M.",
"EUR 3,000 jointly",
"C. Costs and expenses",
"461. The applicants in cases nos. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13 and 42403/13 jointly claimed EUR 53,000 for the costs and expenses incurred before the Court, including EUR 50,000 in respect of legal services rendered under the contract dated 10 March 2014 with the representatives, and EUR 3,00 0 for translation of documents. The applicants in case no. 2 7161/13 noted that their representative had acted pro bono and claimed USD 186.29 for postal and stationary expenses incurred in the proceedings before the Court.",
"462. The Government contested these claims, arguing that no credible evidence had been submitted by the applicants to support the purported lawyers ’ fees, or the costs and expenses. They pointed out, in particular, that the figure of EUR 50,000 was not indicated in the contract of 10 March 2014. Furthermore, very few applicants had submitted copies of invoices to substantiate the amounts actually paid, and from the invoices submitted it was apparent that not more than USD 600 had been paid by the applicants in each case for legal representation. The Government added that the amounts claimed were excessive.",
"463. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the amounts indicated in the table below for costs and expenses incurred in the proceedings before the Court:",
"Application no.",
"Name of the applicant(s)",
"Amount",
"6033/13",
"A.J.H. and J.A.H",
"USD 600",
"G.D.C.",
"USD 600",
"J.M. and A.M.",
"USD 600",
"8927/13",
"J.J. and Jn.J.",
"USD 600",
"10549/13",
"J.E.L. and A.M.L.",
"USD 600",
"12275/13",
"M.S.P. and A.N.P.",
"USD 600",
"D.S.G.",
"USD 600",
"B.C. and J.W.S.",
"USD 600",
"T.L.B.-S.",
"USD 600",
"S.M. and K.M.",
"USD 600",
"Q.S. and W.S.",
"USD 600",
"S.A.K.",
"USD 600",
"C.B. and T.B",
"USD 600",
"23890/13",
"M.W. and D.W.",
"USD 600",
"26309/13",
"C.Z. and S.Z.",
"USD 600",
"27161/13",
"S.S. and G.S.",
"USD 186.29",
"29197/13",
"C.M.S.",
"USD 600",
"32224/13",
"R.K.B. and T.B.",
"USD 600",
"32331/13",
"D.M.L. and De.M.L.",
"USD 600",
"32351/13",
"J.F.B.",
"USD 600",
"32368/13",
"L.A.P. and J.N.T.",
"USD 600",
"37173/13",
"J.W.H. and A.M.H.",
"USD 600",
"38490/13",
"A.B.",
"USD 600",
"42340/13",
"M.B. and D.B.",
"USD 600",
"42403/13",
"M.M. and J.M.",
"USD 600",
"D. Default interest",
"464. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
64 | Zorica Jovanović v. Serbia | 26 March 2013 | This case concerned the alleged death of the applicant’s healthy new-born son in 1983 in a State-run hospital. She had never been allowed to see his body and suspected that her son may even still be alive, having unlawfully been given up for adoption. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, although the procedure in hospitals when new-borns die had been improved and reports had been drawn up by Parliament to investigate the missing babies cases, ultimately nothing had been done to remedy the ordeal suffered by the parents, including the applicant, in the past. Therefore the Court concluded that the applicant had suffered a continuing violation of the right to respect for her family life due to Serbia’s continuing failure to provide her with credible information as to what has happened to her son. Given the significant number of other potential applicants, the Court also held under Article 46 (binding force and execution of judgments) of the Convention that Serbia had to take measures to give credible answers about what has happened to each missing child and to provide parents with adequate compensation. | Parental Rights | Disappearance of new-born baby in hospital care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1953 and lives in Batočina.",
"6. The facts of the case, as submitted by the parties, may be summarised as follows.",
"A. The specific facts of the applicant’s case",
"7. On 28 October 1983 the applicant gave birth to a healthy baby boy in the Ćuprija Medical Centre (“the ĆMC”), a State-run hospital.",
"8. Between 28 and 30 October 1983, while still in the ĆMC, the applicant had regular contact with her son.",
"9. On 30 October 1983 the applicant was informed by the doctors that both she and her son would be discharged the next day.",
"10. The applicant was with her son until approximately 11 p.m. on 30 October, when he was taken to a separate room for newborn babies. This was standard procedure and the applicant’s son had experienced no medical problems up to that point.",
"11. On 31 October 1983, at around 6.30 a.m., the duty doctor informed the applicant that “her baby ha[d] died”. Upon hearing this, the applicant immediately ran down the corridor towards the room where her son had spent the night. She was physically restrained by two orderlies, however. A nurse even tried to inject her with a sedative, but the applicant successfully resisted the attempt. Ultimately, having no other option and being in a state of shock, the applicant checked out of the ĆMC. Her relatives were subsequently told that the autopsy of the infant would be performed in Belgrade, which was why his body could not yet be released to the parents. The applicant and her family remained confused as to why the autopsy would have to be carried out in Belgrade, as this was clearly a departure from the ĆMC’s normal practice.",
"12. From 2001, and particularly from 2002, the Serbian media started reporting extensively on numerous cases similar to the applicant’s (see, for example, http://www.kradjabeba.org, accessed on 29 January 2013).",
"13. On 24 October 2002 the applicant sent a request to the ĆMC, seeking all relevant documentation relating to her son’s death.",
"14. On 12 November 2002 the applicant was informed by the ĆMC that her son had died on 31 October 1983, at 7.15 a.m., and that his death had occurred from an unknown cause. The ĆMC maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed.",
"15. On 22 November 2002, in response to the applicant’s request, the Municipality of Ćuprija informed her that her son’s birth had been registered in the municipal records but that his death had not.",
"16. On 10 January 2003 the applicant’s husband (the child’s father) lodged a criminal complaint with the Ćuprija municipal public prosecutor’s office against the medical staff of the ĆMC, whom the applicant deemed responsible for “her son’s abduction”.",
"17. On 15 October 2003 the Ćuprija municipal public prosecutor’s office rejected the complaint as unsubstantiated, since “there was evidence that [the applicant’s] son had died on 31 October 1983”. No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out.",
"18. In March 2004 the Municipality of Ćuprija reaffirmed the content of its letter of 22 November 2002.",
"19. On 29 April 2004 the ĆMC provided the applicant with its internal records in support of its letter dated 12 November 2002.",
"20. On 19 September 2007 the Municipality of Ćuprija confirmed that the death of the applicant’s son had never been formally registered.",
"21. On 28 December 2007 the Municipality of Ćuprija provided the applicant with copies of her son’s birth certificate, in response to her earlier demand, together with the ĆMC’s request for registration of the birth.",
"22. The body of the applicant’s son was never released to the applicant or her family. Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried.",
"23. Between 12 June 2009 and 20 July 2011 the Kragujevac Clinical Centre regularly treated the applicant for, inter alia, various depression-related symptoms dating back to 1999 and especially 2001.",
"B. Other relevant facts",
"1. The adoption of new procedures",
"24. At a meeting organised by the Ministry of Health on 17 June 2003 on the burial of newborn babies who had died in hospital it was decided, inter alia, that the bodies could only be released to the parents if the latter signed a special form designed for this purpose.",
"25. In response to a specific request sent to them by the State-run funeral company ( JKP Pogrebne usluge ) on 17 October 2003, all Belgrade-based public health-care institutions also agreed, inter alia, to implement a procedure whereby a special declaration would have to be signed (a) by the parents, or other family members, stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements, or (b) by a legal entity, or its representative, to the effect that it would be making these arrangements because others had refused or were unable to do so. In the absence of such declarations, the State-run funeral company would refuse to collect the bodies from the hospitals.",
"2. The parliamentary report of 14 July 2006 (Izveštaj o radu anketnog odbora obrazovanog radi utvrđivanja istine o novorođenoj deci nestaloj iz porodilišta u više gradova Srbije)",
"26. In 2005 hundreds of parents in the same situation as that of the applicant, namely, whose newborn babies had “gone missing” following their alleged deaths in hospital wards, especially in the 1970s, 1980s and 1990s, applied to the Serbian Parliament seeking redress.",
"27. On 14 July 2006 Parliament formally adopted a report prepared by the Investigating Committee established for this purpose. The findings of this report concluded, inter alia, that (a) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various State bodies and health authorities; (b) the situation justified the parents’ doubts or concerns as to what had really happened to their children; (c) no criminal redress could now be effective in view of the applicable limitation periods (see paragraph 34 below); and (d) a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were therefore necessary in order to provide the parents with adequate redress.",
"3. Statements made by the President of the Parliament",
"28. On 16 April 2010 the local media reported that the President of the Serbian Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies”.",
"4. The Ombudsman’s report of 29 July 2010 (Izveštaj zaštitnika građana o slučajevima tzv. “nestalih beba” sa preporukama)",
"29. Following an extensive investigation into the issue, the Ombudsman found, inter alia, that (a) at the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital; (b) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (c) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (d) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) turning to more recent times, the government response between 2006 and 2010 had itself been inadequate; and (f) the parents therefore remained entitled to know the truth about the real fate of their children, which could only be arrived at through the enactment of a lex specialis.",
"5. The working group’s report submitted to Parliament on 28 December 2010 (Izveštaj o radu radne grupe za izradu predloga zakona radi stvaranja formalno-pravnih uslova za postupanje nadležnih organa po prijavama o nestanku novorođene dece iz porodilišta)",
"30. In response to the findings and recommendations of the Parliamentary Report of 14 July 2006 (see paragraphs 26-27 above), a working group was set up by Parliament on 5 May 2010 (see paragraph 28 above). Its task was to assess the situation and propose any appropriate changes to the legislation.",
"31. On 28 December 2010 the working group submitted its report to Parliament. Following a detailed analysis of the current, already amended, legislation, it concluded that no changes were necessary except as regards the collection and use of medical data, but that a new piece of legislation concerning this issue was already being prepared ( nacrt Zakona o evidencijama u oblasti zdravstva ). The working group specifically noted, inter alia, that Article 34 of the Constitution made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or, indeed, to introduce new, more serious, criminal offences and/or harsher penalties applicable to crimes committed in the past (see paragraph 32 below). The existing Criminal Code already envisaged several criminal offences of relevance to the issue, however, and the new Health Care Act set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards (see paragraphs 35 and 41 below)."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Constitution of the Republic of Serbia ( Ustav Republike Srbije, published in the Official Gazette of the Republic of Serbia (OG RS) no. 98/06)",
"32. Article 34 of the Constitution reads as follows:",
"“No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed. Nor shall a penalty be imposed which was not prescribed for the act at the time.",
"The penalties shall be determined pursuant to the legislation in force at the time when the act was committed, save where subsequent legislation is more lenient for the perpetrator. Criminal offences and penalties shall be laid down by the law.”",
"B. Criminal Code of the Socialist Republic of Serbia 1977 ( Krivični zakon Socijalističke Republike Srbije, published in the Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79)",
"33. Article 116 provided, inter alia, that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of between one and ten years.",
"C. Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 ( Krivični zakon Socijalističke Federativne Republike Jugoslavije, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia (OG SFRY) nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90; in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01; and in OG RS no. 39/03)",
"34. Articles 95 and 96 provided, inter alia, that prosecution of the crime defined in Article 116 of the Criminal Code of the Socialist Republic of Serbia became time-barred where more than twenty years had elapsed since the commission of the crime.",
"D. Criminal Code of the Republic of Serbia 2005 ( Krivični zakonik, published in OG RS nos. 85/05, 88/05, 107/05, 72/09 and 111/09)",
"35. Under Articles 191, 192, 388 and 389, various forms of child abduction and human trafficking, including for the purposes of adoption, are defined as a crime.",
"E. Obligations Act ( Zakon o obligacionim odnosima, published in OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and 31/93)",
"36. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his or her “personal rights” ( prava ličnosti ) shall be entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.",
"37. Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but that such a claim must in any event be lodged within a maximum of five years of the event itself.",
"38. Article 377 § 1 further provides that if the damage in issue has been caused as a result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations.",
"F. Relevant domestic case-law",
"39. On 4 June 1998 the Supreme Court (Rev. 251/98) held that civil limitation periods concerning various forms of non-pecuniary damage (see paragraphs 36-38 above) would not start running until the situation complained of had come to an end ( kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja ).",
"40. On 21 April 2004 the Supreme Court (Rev. 229/04) further held that “personal rights” within the meaning of the Obligations Act included, inter alia, the right to respect for family life.",
"G. Health Care Act ( Zakon o zdravstvenoj zaštiti, published in OG RS nos. 107/05, 72/09, 88/10 and 99/10)",
"41. Articles 219 to 223 provide, inter alia, details as regards the determination of the time and cause of death of a newborn baby while still in hospital. Specifically, the hospital will inform the family as soon as possible and provide them with access to the body. An autopsy is carried out and a biological sample stored for any future purposes. The police are informed if no cause of death has been established, and the relevant municipal authorities are informed in all circumstances.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"42. The applicant relied on Articles 4, 5 and 8 of the Convention. In substance, however, she complained of the respondent State’s continuing failure to provide her with any information about the real fate of her son. The applicant suspected, further, that he might still be alive, having been unlawfully given up for adoption.",
"43. The Court, being the master of the characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), considers that this complaint falls to be examined under Article 8 of the Convention, which, in so far as relevant, reads as follows:",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. Compatibility ratione temporis",
"(a) The parties’ submissions",
"44. The Government maintained that the facts “constitutive of the alleged interference” concerned a period prior to 3 March 2004, that being the date when the Convention had come into force in respect of Serbia. Specifically, the applicant’s child had allegedly been taken from her on 31 October 1983 and her husband’s criminal complaint had been rejected on 15 October 2003, having not been lodged until some ten months previously. The Government argued, lastly, that even the alleged failure of the respondent State to remedy the impugned situation as of 3 March 2004 could not bring the applicant’s complaint within the Court’s competence ratione temporis.",
"45. The applicant submitted that the violation in question was of an ongoing character and that she had also complained orally about the issue to various authorities over the years.",
"(b) The Court’s assessment",
"46. The Court reiterates that its jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, however, the State’s alleged acts and omissions must conform to the Convention and its Protocols, meaning that all subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Yağcı and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319 ‑ A, and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I).",
"47. It is further observed that disappearances are a very specific phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred. This situation is very often drawn out over time, prolonging the torment of the victim’s parents or relatives. It cannot therefore be said that a disappearance is, simply, an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the positive obligation will, potentially, persist as long as the fate of the person is unaccounted for. This is so even where death may, eventually, be presumed (see, albeit in the context of Articles 2 and 3, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 148, ECHR 2009).",
"48. Turning to the present case, the Court notes that the applicant’s son allegedly died or went missing on 31 October 1983, whilst the Convention came into force in respect of Serbia on 3 March 2004. However, the respondent State’s alleged failure to provide the applicant with any definitive and/or credible information as to the fate of her son has continued to the present day. In such circumstances, the Court considers that the applicant’s complaint concerns a continuing situation (see, mutatis mutandis, Varnava and Others, cited above, §§ 130-50, and, in the context of Article 8, Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 238 and 240-42, 26 June 2012).",
"49. Accordingly, the Government’s objection as to the lack of jurisdiction ratione temporis must be dismissed. The Court is thus competent to examine the applicant’s complaint in so far as it relates to the respondent State’s alleged failure to fulfil its procedural obligations under the Convention as of 3 March 2004. It may, however, have regard to the facts prior to the ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring thereafter (see, mutatis mutandis, Kurić and Others, cited above, § 240).",
"2. The six-month rule",
"(a) The parties’ submissions",
"50. The Government contended that the applicant’s complaint had been lodged out of time because she had learned of the outcome of her criminal case more than four years earlier. The applicant should therefore have lodged her application with the Court within a period of six months following the Convention’s entry into force in respect of Serbia, namely, as of 3 March 2004. Whilst it was true that various official reports had been produced after that date, the Government submitted that the applicant could not have “reasonably expected” that any of them would have enabled her to initiate proceedings capable of bringing about the “resolution of her case”. No “revival” of the respondent State’s obligations under the Convention was therefore possible.",
"51. The applicant stated that the parliamentary report of 14 July 2006 and the Ombudsman’s report of 29 July 2010 had raised her hopes that redress might, after all, be forthcoming, and that such expectations had ended only on 28 December 2010 when the working group had presented its own report to Parliament.",
"(b) The Court’s assessment",
"52. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I).",
"53. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002).",
"54. Nonetheless, it has been said that the six-month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, Decisions and Reports 72, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008); this is because, if there is a situation of an ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end.",
"55. However, not all continuing situations are the same. As regards disappearances, applicants cannot wait indefinitely before lodging their application with the Court. Where there is a state of ignorance and uncertainty and, by definition, a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, it is more difficult for the relatives of the missing to assess what is happening, or what can be expected to happen. Allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance. Still, applications can be rejected as out of time where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued with regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided (see Varnava and Others, cited above, §§ 162 and 165).",
"56. Turning to the present case, the Court notes that on 14 July 2006 the Serbian Parliament formally adopted a report prepared by its Investigating Committee. The report included, inter alia, a recommendation to the effect that a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were necessary in order to provide the parents with adequate redress (see paragraph 27 (d) above). On 16 April 2010 the local media reported that the President of the Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies” (see paragraph 28 above). Lastly, in his report of 29 July 2010 the Serbian Ombudsman opined that the parents remained entitled to know the truth regarding the real fate of their children, and proposed the enactment of a lex specialis in that regard (see paragraph 29 (f) above).",
"57. In such, admittedly very specific, circumstances and despite the overall passage of time, it cannot be said that the applicant was unreasonable in awaiting the outcome of developments which could have “resolved crucial factual or legal issues” regarding her complaint, at least not until the presentation of the working group’s report on 28 December 2010 when it became obvious that no redress would be forthcoming (see paragraphs 30-31 above). Since the application in the present case was lodged on 22 April 2008, the Government’s objection must be rejected.",
"3. Exhaustion of domestic remedies",
"(a) The parties’ submissions",
"58. The Government averred that the applicant had in effect made no effort to exhaust domestic remedies. In particular, it was her husband who had lodged the criminal complaint, and she, personally, had also failed to bring a civil case on the basis of Articles 199 and 200 of the Obligations Act, as applied and interpreted in the Supreme Court’s case-law described in paragraphs 36 to 40 above. The Government further produced three judgments of the Supreme Court in which the claimants had been awarded compensation for the harm suffered as a consequence of medical errors and police misconduct, and one ruling setting aside a district court’s decision adopted in the latter context (see Rev. nos. 1118/03, 807/05 and 51/07 of 10 April 2003, 1 December 2005 and 13 March 2007, respectively). In any event, and as a matter of principle, the Government considered it unreasonable that a State Party should be required to provide effective redress to applicants in cases where an alleged violation of their rights had taken place prior to the ratification of the Convention.",
"59. The applicant maintained that the criminal complaint lodged by her husband had clearly included her own complaint to the same effect since the entire matter concerned the disappearance of their child. It was true that the said complaint had been lodged in 2003, but the applicant had been unable to obtain any relevant evidence or expect any redress prior to then. Put simply, the “missing-babies issue” had been taboo until 2001, when the parents concerned had started organising themselves, the media had begun extensively reporting on it, and even Parliament had debated the issue at its plenary sessions. It should further be noted that, in the meantime, applicable criminal and civil limitation periods had come into force.",
"(b) The Court’s assessment",
"60. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The Court has likewise frequently emphasised the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13).",
"61. In terms of the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998-I). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003).",
"62. As regards the present case, the Court notes that the applicant’s husband did indeed lodge a criminal complaint on his own behalf and on behalf of the applicant since the incident in question concerned the same event of equal significance to both of them. That complaint was rejected by the public prosecutor’s office, however, without any indication as to whether any preliminary investigation had been carried out (see paragraph 17 above). Further, any criminal proceedings would indeed have become time-barred by October 2003, at the latest, and would hence have been incapable of providing any redress thereafter (see paragraphs 27 (c) and 34 above).",
"63. Concerning the civil claim, the Court considers that this avenue of redress could not have remedied the impugned state of affairs. The civil courts could, at best, have recognised the violation of the applicant’s “personal rights” and awarded compensation for the non-pecuniary damage suffered. They could also, possibly, have ordered other forms of redress “capable” of affording non-pecuniary satisfaction. Neither of those measures, however, could have effectively remedied the applicant’s underlying complaint, which was her need for information as to “the real fate of her son”. The Government have certainly offered no evidence to the contrary. The Court notes, lastly, that neither Parliament nor the Ombudsman addressed this issue in their respective reports. Indeed, if anything, by recommending the enactment of a lex specialis they appear to have suggested that no existing domestic remedies, including the said civil claim, could have been effective (see paragraphs 27 (d), 28 and 29 (f) above).",
"64. The Government’s objection as to the exhaustion of domestic remedies must therefore be rejected.",
"4. Conclusion",
"65. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is also not inadmissible on any other grounds, and must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"66. The applicant reaffirmed her complaint regarding the respondent State’s continuing failure to provide her with information as to the real fate of her son. She added that had her son died, as the ĆMC had claimed, they should have reported the death to the competent municipal authorities, shown the body to the parents and produced an autopsy report.",
"67. The Government submitted that no violation of the applicant’s rights could be imputed to the respondent State since the alleged disappearance of her son had occurred in a medical institution, not a State body. Nor was there any evidence that the applicant’s child had indeed been removed from her unlawfully. Whilst there might have been certain procedural omissions on the part of the ĆMC in 1983, the applicant had not made use of any domestic remedies, despite these being capable of offering redress for any wrongs suffered. The issue had also been considered repeatedly at domestic level and the relevant legal framework and practices had been amended with a view to offering adequate safeguards. Any changes to the criminal legislation, however, could not, by definition, be applied to the applicant’s situation, which had arisen so many years previously (see paragraphs 24, 25 and 31 above).",
"2. The Court’s assessment",
"68. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among many other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005).",
"69. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be additional positive obligations inherent in this provision extending to, inter alia, the effectiveness of any investigating procedures relating to one’s family life (see, mutatis mutandis, and in the context of “private life”, M.C. v. Bulgaria, no. 39272/98, §§ 152-53, ECHR 2003 ‑ XII).",
"70. In Varnava and Others (cited above) the Grand Chamber, albeit in the context of Article 3, held as follows:",
"“200. The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. ... The essence of the violation is not that there has been a serious human rights violation concerning the missing person; it lies in the authorities’ reactions and attitudes to the situation when it has been brought to their attention ... Other relevant factors include ... the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person ... The finding of such a violation is not limited to cases where the respondent State has been held responsible for the disappearance ... but can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the whereabouts and fate of a missing person.”",
"The Court deems these considerations broadly applicable, mutatis mutandis, to the very specific context of positive obligations under Article 8 in the present case.",
"71. With this in mind and turning to the present case, it is noted that the body of the applicant’s son was never released to the applicant or her family, and that the cause of death was never determined (see paragraphs 22 and 14 above, in that order). Furthermore, the applicant was never provided with an autopsy report or informed of when and where her son had allegedly been buried, and his death was never officially recorded (see paragraphs 22 and 15 above, in that order). The criminal complaint lodged by the applicant’s husband would also appear to have been rejected without adequate consideration (see paragraph 17 above), and the applicant herself still has no credible information as to what happened to her son.",
"72. Moreover, the Court observes that the respondent State authorities have themselves affirmed, on various occasions following the Serbian ratification of the Convention, that (a) in the 1980s there were serious shortcomings in the applicable legislation and in the procedures before various State bodies and health authorities; (b) there were no coherent statutory regulations as to what should happen in situations where a newborn baby died in hospital; (c) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn baby, which is why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (d) this situation justified the parents’ doubts or concerns as to what had really happened to their children, and it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) the respondent State’s response between 2006 and 2010 was itself inadequate; and (f) the parents therefore remain entitled to know the truth as to the real fate of their children (see paragraphs 26-29 above).",
"73. Lastly, despite several seemingly promising official initiatives between 2003 and 2010, the working group’s report submitted to the Serbian Parliament on 28 December 2010 concluded that no changes to the existing, already amended, legislation were necessary, except as regards the collection and use of medical data. In these circumstances, it is clear that this has only improved the situation for the future, and has effectively offered nothing to those parents, including the applicant, who have endured the ordeal in the past (see paragraphs 30-31 above).",
"74. The foregoing considerations are sufficient to enable the Court to conclude that the applicant has suffered a continuing violation of the right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son.",
"75. There has accordingly been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"76. The applicant further complained, under Article 13 of the Convention, of the respondent State’s continuing failure to provide her with any redress for the continuing breach of her right to respect for her “family life”.",
"77. The Government contested the merits of this complaint (see paragraph 58 above).",
"78. The Court considers that this complaint falls to be examined under Article 13 of the Convention taken in conjunction with Article 8.",
"79. The former provision reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"80. Given that the applicant’s Article 13 complaint is effectively the same as her complaint under Article 8, and having regard to its finding in respect of the latter (see, in particular, paragraph 73 above), the Court declares the Article 13 complaint admissible but considers that it need not be examined separately on its merits.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"81. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"82. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.",
"83. The Government contested that claim.",
"84. The Court considers that the applicant has certainly suffered some non-pecuniary damage. Having regard to the nature of the violation found in the present case and making its assessment on an equitable basis, the Court therefore awards her EUR 10,000 under this head.",
"B. Costs and expenses",
"85. The applicant also claimed EUR 2,750 for the costs and expenses incurred before the Court.",
"86. The Government contested that claim.",
"87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the fact that the applicant has already been granted EUR 850 under the Council of Europe’s legal aid scheme, the Court considers it reasonable to award her the additional sum of EUR 1,800 for the costs incurred before it.",
"C. Default interest",
"88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.",
"IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION",
"89. Article 46 of the Convention provides:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.",
"...”",
"90. Given these provisions, it follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned any sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress, in so far as possible, the effects thereof (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).",
"91. In that connection the applicant requested that the respondent State be ordered to amend its legislation so as to increase the penalties for the relevant criminal offences, extend the applicable limitation period and, subsequently, reopen the criminal proceedings in her case.",
"92. In view of the above, as well as the significant number of potential applicants, the respondent State must, within one year from the date on which the present judgment becomes final in accordance with Article 44 § 2 of the Convention, take all appropriate measures, preferably by means of a lex specialis (see the Ombudsman’s report of 29 July 2010 at paragraph 29 above), to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant’s (see paragraph 26 above). This mechanism should be supervised by an independent body, with adequate powers, which would be capable of providing credible answers regarding the fate of each child and awarding adequate compensation as appropriate.",
"93. As regards all similar applications already pending before it, the Court decides to adjourn these during the said interval. This decision is without prejudice to the Court’s power at any moment to declare inadmissible any such case or to strike it out of its list in accordance with the Convention."
] |
65 | Rasmussen v. Denmark | 28 November 1984 | This case concerned the fact that the applicant was prevented from bringing proceedings to challenge his paternity of a child, following his separation from his wife, because of a 1960 Act that placed a time-limit on a father’s right to challenge paternity of a child born in wedlock but permitted the mother to challenge the paternity of a child at any time. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) combined with Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the Convention, finding that the difference of treatment established on this point between husbands and wives was based on the notion that time-limits for challenging filiation were less necessary for wives than for husbands since the mother’s interests usually coincided with those of the child, she being awarded custody in most cases of divorce or separation. The rules in force had been modified by the Danish Parliament in 1982 because it considered that the thinking underlying the 1960 Act was no longer consistent with the developments in society; it could not be inferred from this that the manner in which it had evaluated the situation twenty-two years earlier was not tenable. | Gender equality | Action for disavowal of paternity | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"8. The applicant, Mr. Per Krohn Rasmussen, is a Danish citizen, born in 1945. He currently works as a clerk and resides in Nyborg.",
"He was married in 1966. During the marriage, two children were born, a boy in 1966 and a girl, Pernille, on 20 January 1971. The applicant had grounds, even before the latter's birth, for assuming that another man might be the father; however, in order to save the marriage, he took no steps to have paternity determined.",
"9. In June 1973, Mr. Rasmussen and his wife applied for a separation (separation ved bevilling), which they obtained on 9 August. In accordance with their agreement, Mrs. Rasmussen retained custody of the children and the competent authority issued a decision to the effect that Mr. Rasmussen should pay maintenance for them from 1 September 1973. He in fact did so from that date until 1 June 1975.",
"10. In March 1975, the applicant, who had previously still nurtured hopes of preserving the marriage, took some steps to institute proceedings to challenge his paternity of Pernille. To this end, he applied for legal aid. However, he did not pursue the matter since, on 28 April 1975, he and his wife signed an agreement whereby she waived all claims for maintenance for the child and he undertook to refrain from bringing any such proceedings.",
"11. In June 1975, the applicant and his wife applied for a divorce (skilmisse ved bevilling), which was granted on 16 July. On this occasion, he reaffirmed before the authorities that the mother should have sole custody of the children and was once more ordered to pay maintenance for them. He did not raise any objection.",
"12. On 16 January 1976, four days before Pernille's fifth birthday, the applicant's former wife wrote to him asserting that she was not bound by the agreement of 28 April 1975. She later lodged with the public authorities a renewed petition for maintenance, which was granted by order effective from 1 March 1976. Since then, Mr. Rasmussen has regularly paid the maintenance.",
"13. On 27 January 1976, Mr. Rasmussen sought leave from the Eastern Court of Appeal (Østre Landsret) to institute proceedings out of time to determine the paternity of the girl (see paragraph 19 below).",
"In accordance with the normal procedure, the police, at the Court of Appeal's request, interviewed Mr. Rasmussen and his former wife in March 1976 and recorded their statements in a report.",
"14. The Court of Appeal refused the application on 12 April 1976, for the reason that the statutory conditions for granting leave at that time were not satisfied (see paragraph 19 below).",
"The applicant did not appeal against the decision within the statutory time-limit. However, on 27 July 1976, he petitioned the Ministry of Justice for leave to appeal out of time to the Supreme Court (Højesteret), but this was refused on 3 September 1976.",
"15. On 20 November 1978, Mr. Rasmussen applied again to the Court of Appeal for leave to institute paternity proceedings. His former wife opposed the application, on the ground that such proceedings would have a detrimental effect on the child.",
"By a decision of 11 December 1978, the Court of Appeal refused the application for the reason that the applicant had not brought the action contesting paternity within the time-limits provided for in section 5(2) of the 1960 Act on the Legal Status of Children (\"the 1960 Act\" - Lov nr. 200 af 18.5.1960 om børns retsstilling; see paragraph 19 below) and that there was no cause to grant him any exemption since the conditions laid down in section 5(3) were not met. A similar decision was given by the Supreme Court on 12 January 1979."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Background to the 1960 Act on the Legal Status of Children",
"16. Prior to the enactment of the 1960 Act, which applied in Mr. Rasmussen's case, the status of children was regulated in the Illegitimacy Act of 1937 and the Legitimacy Act of the same year. Section 3 of the latter provided that proceedings to contest paternity of a legitimate child could be instituted by the mother, the husband, the child or a person appointed guardian of the child. No time-limit was laid down for the institution of such proceedings.",
"17. According to Danish case-law and legal writing, however, a husband could be estopped from contesting paternity of a child born in wedlock if, knowing that his wife had had sexual intercourse with another man during the relevant period, he had expressly or tacitly acknowledged after the child's birth that he was the father. The \"doctrine of acknowledgement\" (anerkendelseslaeren) was first established in 1956 by a judgment of the Supreme Court, reported in Ugeskrift for Retsvaesen (U.f.R.) 1956, p. 107. Although there was no case-law on the point, legal writers expressed the view that this doctrine applied also to mothers (see, for instance, Ernst Andersen, Aegteskabsret I, 1954, p. 95).",
"18. In December 1949, the Ministry of Justice set up a committee, called the \"Paternity Committee\", to consider, inter alia, certain aspects of the status of children born in wedlock. In June 1955, the Committee submitted its report (no. 126/1955) on the amendment of the rules regarding determination of paternity.",
"As to the husband's right to institute proceedings to challenge paternity of a child born in wedlock, the Committee recommended the institution of a double time-limit of six months from the time when the husband became aware of the facts affording grounds for contesting his paternity and not later than three years from the birth of the child; but that the Ministry of Justice should be empowered to grant exemption from these time-limits in special circumstances. The Committee took the view that the welfare of the child (and of the marriage) required that his status should be established as soon as possible and that the husband's interests should yield to these considerations (page 60 of the report). One of the reasons given by the Committee for this recommendation was that a paternity suit instituted by the husband several years after the child's birth would place the child in a worse position than if proceedings had been instituted earlier: the court would possibly have to give judgment in the husband's favour on the basis of the blood-group determination, while it would be difficult to obtain a paternity and a maintenance order against another man.",
"On the other hand, the Committee found that the child's right to institute proceedings should not be subject to any time-limit, since the views which might lead to restricting the husband's right to institute proceedings were not of relevance in the case of an action brought by the child. For the same reasons, there should likewise be no time-limit with regard to actions brought by the child's guardian or the mother (page 59 of the report).",
"The Committee also discussed the question whether the doctrine of acknowledgement should be embodied in legislation. However, it considered that this was a matter which was better left to the courts to decide on a case-by-case basis.",
"B. The 1960 Act",
"19. The Government subsequently introduced a Bill which incorporated in part the recommendations of the Paternity Committee but increased the time-limits to twelve months and five years respectively and conferred competence to grant exemption on the Courts of Appeal. This legislation entered into force, as the 1960 Act, on 1 January 1961. It provided in section 5(1) that proceedings to challenge paternity of a child could be brought by the husband, the mother, the child or a guardian of the child. Sub-sections 2 and 3 of section 5 read as follows:",
"\"(2) Paternity proceedings must be instituted by the husband within twelve months after he becomes cognizant of the circumstances which may give grounds for his renunciation of paternity, and not later than five years after the birth of the child.",
"(3) However, a Court of Appeal may, on the conditions set out in section 456r, sub-section 4, of the Administration of Justice Act, grant leave to institute proceedings after the expiry of the time-limits set out in sub-section 2 above.\"",
"Section 456r, sub-section 4, of the Administration of Justice Act concerns re-opening of a paternity case after the expiry of the applicable time-limit or time-limits. It provides that leave may be granted by a Court of Appeal if quite exceptional reasons are given as to why a review was not sought earlier, if the particular circumstances of the case especially warrant it and if it can be assumed that the re-opening will not cause the child any great inconvenience.",
"The 1960 Act did not impose any restriction on the mother's right to institute paternity proceedings, nor did it refer to the doctrine of acknowledgement (see paragraph 17 above).",
"20. In case-law, however, the \"doctrine of acknowledgement\" continued to be applied and there were Court of Appeal and Supreme Court decisions confirming the earlier view that the doctrine also applied to mothers.",
"21. The circumstances which, under the doctrine of acknowledgement, estop the husband from contesting paternity will, as a general rule, also militate against granting him leave to institute proceedings out of time. However, a decision to grant leave is without prejudice to the outcome of the subsequent procedure (see the Eastern Court of Appeal's judgment of 1977, U.f.R. 1977, p. 907).",
"C. Amendments to the 1960 Act",
"22. In 1969, the Ministry of Justice set up a committee, called the \"Matrimonial Committee\", to consider whether the evolution of social conditions, and notably the changes in the social status of women and the resultant changes in the conception of the institution of marriage since the introduction of the 1960 Act, called for amendment of, inter alia, the provisions governing the legal status, during marriage and after separation or divorce, of children born in wedlock. In fact, the proportion of women working outside their homes has increased to about 60 per cent. As a result, men are, to a much higher degree than before, looking after the children and are more frequently granted their custody in the event of separation or divorce. Mothers are therefore now more likely to challenge paternity in order to prevent custody being given to the husband. In a report on cohabitation without marriage (samliv uden aegteskab I - no 915/1980, p. 72), published in January 1981, the Matrimonial Committee stated:",
"\"There is consensus in the Committee that also the mother's right to institute paternity proceedings and request re-opening should be subject to a relatively short time-limit, for example corresponding to the time-limits which today apply to the father. Furthermore, the Committee is to some degree in favour of an absolute time-limit, applicable to all, for instituting and re-opening paternity proceedings.\"",
"23. On the basis of the recommendations of the Matrimonial Committee, the Government tabled a Bill before Parliament in March 1982, proposing certain amendments to the 1960 Act.",
"The explanatory memorandum to this Bill referred to the Rasmussen case, then pending before the European Commission. On page 4, it mentioned that the Agent of the Government had declared in evidence before the Commission that new legislation on the matter would be introduced, establishing uniform time-limits within which both men and women could contest the husband's paternity; the memorandum added that the Ministry of Justice considered such legislation \"desirable in the interest of the child's needs\" (af hensyn til barnets tarv).",
"24. On 26 May 1982, the Danish legislature passed an Act amending the 1960 Act, which entered into force on 1 July 1982.",
"Following this amendment, sub-sections 2 and 3 of section 5 of the 1960 Act now provide:",
"\"(2) Paternity proceedings must be instituted not later than three years after the birth of the child. This provision shall not apply, however, where proceedings are instituted by the child after having attained the age of 18.",
"(3) A Court of Appeal may grant leave to institute proceedings after the expiry of the time-limit set out in the first sentence of sub-section 2 of this section where quite exceptional grounds are given as to why proceedings were not instituted at an earlier stage, in circumstances where institution of proceedings is especially warranted, and where it can be presumed that the proceedings will not cause the child any great inconvenience.\"",
"The \"doctrine of acknowledgement\" is still applied by the Danish courts to estop spouses from contesting paternity of a child (see the Supreme Court's judgment of 17 January 1984 ).",
"PROCEEDINGS BEFORE THE COMMISSION",
"25. In his application of 21 May 1979 to the Commission (no. 8777/79), Mr. Rasmussen alleged that he had been subjected to discrimination based on sex in that, under the relevant Danish law applicable at the time, his former wife had an unlimited right of access to court to challenge his paternity, whilst he did not.",
"26. The Commission declared the application admissible on 8 December 1981. In its report adopted on 5 July 1983 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that there had been a breach of Article 14 taken in conjunction with Articles 6 and 8 (art. 14+6, art. 14+8) (eight votes against five). The full text of the Commission's opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment.",
"AS TO THE LAW",
"27. Mr. Rasmussen complained of the fact that, under the 1960 Act (see paragraph 19 above), his right to contest his paternity of a child born during the marriage was subject to time-limits, whereas his former wife was entitled to institute paternity proceedings at any time. He alleged that he had been the victim of discrimination on the ground of sex, contrary to Article 14 of the Convention, taken in conjunction with Article 6 (art. 14+6) (right to a fair trial, including the right of access to court) and with Article 8 (art. 14+8) (right to respect for private and family life).",
"28. Article 14 (art. 14) of the Convention reads as follows:",
"\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"",
"I. DO THE FACTS OF THE CASE FALL WITHIN THE AMBIT OF ONE OR MORE OF THE OTHER SUBSTANTIVE PROVISIONS OF THE CONVENTION?",
"29. Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it has an autonomous meaning -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, inter alia, the Van der Mussele judgment of 23 November 1983, Series A no. 70, p. 22, para. 43).",
"30. The applicant submitted that Article 6 (art. 6) was applicable to paternity proceedings and, further, that a husband's wish to have his family status determined fell within the scope of Article 8 (art. 8). These contentions were accepted by the Commission.",
"31. For the Government, it was questionable whether the object of a paternity suit was a determination of \"civil rights and obligations\", within the meaning of Article 6 para. 1 (art. 6-1), mainly because of the strong public interest involved in proceedings of this kind. They also contested the applicability of Article 8 (art. 8), maintaining that its object was the protection of the family and not the dissolution of existing family ties.",
"32. Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). It is true that the public interest may be affected by proceedings of the kind which Mr. Rasmussen wished to institute, but, in the Court's view, this factor cannot exclude the applicability of Article 6 (art. 6) to litigation which, by its very nature, is \"civil\" in character. And an action contesting paternity is a matter of family law; on that account alone, it is \"civil\" in character.",
"33. Article 8 (art. 8), for its part, protects not only \"family\" but also \"private\" life. Even though the paternity proceedings which the applicant wished to institute were aimed at the dissolution in law of existing family ties, the determination of his legal relations with Pernille undoubtedly concerned his private life. The facts of the case accordingly also fall within the ambit of Article 8 (art. 8).",
"II. WAS THERE A DIFFERENCE OF TREATMENT?",
"34. Under the 1960 Act, the husband, unlike the child, its guardian or the mother, had to institute paternity proceedings within prescribed time-limits (see paragraph 19 above).",
"The Government pointed out that this difference which appeared on the face of the Act was reduced in scope by two factors: firstly, it was open to the husband to seek leave from the Court of Appeal to institute proceedings out of time (see paragraph 19 above); secondly, not only the husband but also the mother might be debarred from contesting paternity by virtue of the \"doctrine of acknowledgement\" (see paragraphs 17 and 20 above). However, the Government did not suggest that these factors were sufficient to eliminate the difference laid down by statute. Indeed, the mother would not, like her husband, be estopped solely for being out of time; her action might simply fail as a result of her previous attitude.",
"For the purposes of Article 14 (art. 14), the Court accordingly finds that there was a difference of treatment as between Mr. Rasmussen and his former wife as regards the possibility of instituting proceedings to contest the former's paternity. There is no call to determine on what ground this difference was based, the list of grounds appearing in Article 14 (art. 14) not being exhaustive (see the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 30, para. 72).",
"III. WERE THE APPLICANT AND HIS FORMER WIFE PLACED IN ANALOGOUS SITUATIONS?",
"35. Article 14 (art. 14) safeguards individuals who are \"placed in analogous situations\" against discriminatory differences of treatment (see the above-mentioned Van der Mussele judgment, Series A no. 70, p. 22, para. 46).",
"36. The Government supported the conclusion of the minority of the Commission that husband and wife were not placed in analogous situations as far as a paternity suit was concerned, there being a number of distinguishing characteristics between their respective positions and interests. The majority of the Commission, on the other hand, found that those characteristics were not sufficiently fundamental to warrant that conclusion.",
"37. The Court does not consider that it has to resolve this issue, especially as the positions and interests referred to are also of relevance in determining whether the difference of treatment was justified. It will proceed on the assumption that the difference was made between persons placed in analogous situations.",
"IV. DID THE DIFFERENCE OF TREATMENT HAVE AN OBJECTIVE AND REASONABLE JUSTIFICATION?",
"38. For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it \"has no objective and reasonable justification\", that is, if it does not pursue a \"legitimate aim\" or if there is not a \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, p. 16, para. 33).",
"39. The Government pleaded that the limited difference of treatment that existed had an objective and reasonable justification. They relied, inter alia, on the following points:",
"(i) the respective interests of the husband and of the mother in paternity proceedings were different: unlike the husband's interests, the mother's generally coincided with those of the child; and it was natural that, in weighing the interests of the different family members, the Danish legislature should in 1960 have taken the view that the interests of the weaker party, namely the child, should prevail (see paragraph 18 above);",
"(ii) the legislature had also regarded it as necessary to lay down time-limits for the institution of paternity proceedings by a husband because of the risk that he might use them as a threat against the mother, in order to escape maintenance obligations;",
"(iii) in deciding whether the national authorities have acted within the \"margin of appreciation\" which they enjoy in this area, regard should be had to the economic and social circumstances prevailing at the relevant time in the country concerned and to the background to the legislation in question;",
"(iv) Denmark had undoubtedly amended the 1960 Act when this proved to be warranted by subsequent developments (see paragraphs 22-24 above), but it could not be said that the former Danish legislation on this matter was at the relevant time less progressive than that of the other Contracting Parties to the Convention.",
"The Commission found that the only legitimate purpose for the difference of treatment complained of by the applicant was the desire to avoid the child's being placed in a worse position by the institution of paternity proceedings several years after its birth. However, since this aim could have been achieved through the \"doctrine of acknowledgement\" (see paragraphs 17 and 20 above), there was no reasonable relationship of proportionality between the means employed - the laying-down of time-limits solely for the husband - and the aim sought to be realised.",
"40. The Court has pointed out in several judgments that the Contracting States enjoy a certain \"margin of appreciation\" in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 35, para. 10; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 20, para. 47, and pp. 21-22, para. 49; the Swedish Engine Drivers'Union judgment of 6 February 1976, Series A no. 20, p. 17, para. 47; the above-mentioned Engel and Others judgment, Series A no. 22, p. 31, para. 72; and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 87, para. 229). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 36, para. 59).",
"41. Examination of the Contracting States'legislation regarding paternity proceedings shows that there is no such common ground and that in most of them the position of the mother and that of the husband are regulated in different ways.",
"The Danish legislation complained of was based on recommendations made, after a careful study of the problem, by the Paternity Committee set up by the Ministry of Justice in 1949 (see paragraph 18 above). The Court has had close regard to the circumstances and the general background and has borne in mind the margin of appreciation which must be allowed to the authorities in the matter. In its view, they were entitled to think that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child. In this respect, the legislation complained of did not differ substantially from that of most other Contracting States or from that currently in force in Denmark. The difference of treatment established on this point between husbands and wives was based on the notion that such time-limits were less necessary for wives than for husbands since the mother's interests usually coincided with those of the child, she being awarded custody in most cases of divorce or separation. The rules in force were modified by the Danish Parliament in 1982 because it considered that the thinking underlying the 1960 Act was no longer consistent with the developments in society (see paragraphs 22-24 above); it cannot be inferred from this that the manner in which it had evaluated the situation twenty-two years earlier was not tenable.",
"It is true that an equivalent result might have been obtained through the \"doctrine of acknowledgement\" (see paragraphs 17 and 20 above), but, for the reasons already indicated, the competent authorities were entitled to think that as regards the husband the aim sought to be realised would be most satisfactorily achieved by the enactment of a statutory rule, whereas as regards the mother it was sufficient to leave the matter to be decided by the courts on a case-by-case basis. Accordingly, having regard to their margin of appreciation, the authorities also did not transgress the principle of proportionality.",
"42. The Court thus concludes that the difference of treatment complained of was not discriminatory, within the meaning of Article 14 (art. 14)."
] |
66 | Kroon and Others v. the Netherlands | 27 October 1994 | This case concerned the authorities’ refusal to acknowledge the applicant’s partner as the father of her child. The applicant had had no contact with her husband for several years, but her divorce had not come through until a year after her son was born, so the child had been registered as her husband’s son. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, pointing out that the notion of “family life” was not confined solely to marriage-based relationships and might encompass other “family ties”. Where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth or as soon as practicable thereafter the child’s integration in his family. | Parental Rights | Filiation | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"7. The first applicant, Catharina Kroon, is a Netherlands national born in 1954. The second applicant, Ali Zerrouk, born in 1961, was a Moroccan national at the time of the events complained of; he subsequently obtained Netherlands nationality. Although they were not living together at the time, they had a stable relationship from which the third applicant, Samir M ’ Hallem-Driss, was born in 1987; he has both Moroccan and Netherlands nationality. All three applicants live in Amsterdam.",
"8. In 1979, Mrs Kroon had married Mr Omar M ’ Hallem-Driss, a Moroccan national.",
"The marriage broke down towards the end of 1980. Thereafter, Mrs Kroon lived apart from her husband and lost contact with him. It appears from official records that he left Amsterdam in January 1986 and his whereabouts have remained unknown ever since.",
"9. Samir was born on 18 October 1987. He was entered in the register of births as the son of Mrs Kroon and Mr M ’ Hallem-Driss.",
"Mrs Kroon instituted divorce proceedings in the Amsterdam Regional Court ( arrondissementsrechtbank ) one month after Samir ’ s birth. The action was not defended and the divorce became final when the Regional Court ’ s judgment was entered in the register of marriages on 4 July 1988.",
"10. On 13 October 1988, relying on section 1:198 (1) of the Civil Code ( Burgerlijk Wetboek - \"CC\" - see paragraph 19 below), Mrs Kroon and Mr Zerrouk requested the Amsterdam registrar of births, deaths and marriages ( ambtenaar van de burgerlijke stand) to allow Mrs Kroon to make a statement before him to the effect that Mr M ’ Hallem-Driss was not Samir ’ s father and thus make it possible for Mr Zerrouk to recognise the child as his.",
"The registrar refused this request on 21 October 1988. While expressing sympathy, he noted that Samir had been born while Mrs Kroon was still married to Mr M ’ Hallem-Driss, so that unless the latter brought proceedings to deny paternity (see paragraphs 18 and 21 below) recognition by another man was impossible under Netherlands law as it stood.",
"11. On 9 January 1989 Mrs Kroon and Mr Zerrouk applied to the Amsterdam Regional Court for an order directing the registrar to add to the register of births Mrs Kroon ’ s statement that Mr M ’ Hallem-Driss was not Samir ’ s father and with Mr Zerrouk ’ s recognition of Samir. They relied on Article 8 (art. 8) of the Convention, taken both alone and together with Article 14 (art. 14+8), pointing out that while it would have been possible for Mrs Kroon ’ s former husband to deny the paternity of Samir, it was not possible for her to deny her former husband ’ s paternity of the child.",
"The Regional Court refused this request on 13 June 1989. It held that in spite of the justified wish of Mrs Kroon and Mr Zerrouk to have biological realities officially recognised, their request had to be refused since, under the law as it stood, Samir was the legitimate child of Mr M ’ Hallem-Driss. There were only limited exceptions to the rule that the husband of the mother was presumed to be the father of a child born in wedlock. This was justified in the interests of legal certainty, which were of great importance in this field, and by the need to protect the rights and freedoms of others. The law as it stood was therefore not incompatible with Articles 8 and 14 (art. 8, art. 14) of the Convention.",
"12. Relying again on Articles 8 and 14 (art. 8, art. 14), Mrs Kroon and Mr Zerrouk appealed to the Amsterdam Court of Appeal ( gerechtshof ).",
"The Court of Appeal rejected the appeal on 8 November 1989. It held that Article 8 (art. 8) was applicable but had not been violated. The restrictions imposed on the mother ’ s right to deny the paternity of her husband satisfied the requirements of Article 8 para. 2 (art. 8-2). There had, however, been a violation of Article 14 taken together with Article 8 (art. 14+8), since there was no sound reason for the difference of treatment which the law established between husband and wife by not granting the latter the possibility, available to the former, of denying the husband ’ s paternity. Nevertheless the appeal could not be allowed; it was not open to the court to grant the applicants ’ request, as that would require the creation of new Netherlands law, including administrative procedure, and would therefore go beyond the limits of the judiciary ’ s powers to develop the law. Only the legislature could decide how best to comply with Article 14 (art. 14) of the Convention as regards the possibility of denying paternity of a child born in wedlock.",
"13. Mrs Kroon and Mr Zerrouk then lodged an appeal on points of law with the Supreme Court ( Hoge Raad ).",
"They argued, firstly, that the Court of Appeal had violated Article 8 (art. 8) of the Convention by holding that the limitations imposed by section 1:198 CC on the mother ’ s possibility of denying her husband ’ s paternity - more particularly the fact that she might do so only in respect of a child born after the dissolution of the marriage - satisfied the requirements of Article 8 para. 2 (art. 8-2). The Court of Appeal had not properly weighed up the interests involved. It ought to have considered the relative weight of, on the one hand, the interests of the biological father and his child and, on the other, the interests protected by the legislation. The Court of Appeal should have given priority to the former interests, which in the case before it were best served by severing the legal ties between Samir and Mr M ’ Hallem-Driss and establishing such ties between Samir and Mr Zerrouk, who were entitled, under Article 8 (art. 8) of the Convention, to have their family relationship recognised.",
"In addition, they suggested that it followed from the Court of Appeal ’ s finding of a violation of Article 14 (art. 14) that the interference concerned could not under any circumstances be covered by Article 8 para. 2 (art. 8-2).",
"Secondly, they argued that, by holding that it was not empowered to grant the applicants ’ request as that would require the creation of new Netherlands law, the Court of Appeal had violated Articles 14 and 8 (art. 14+8) taken together. In the applicants ’ submission, there was no reason to consider that only the legislature was able to remove the discrimination which the Court of Appeal had rightly found to exist; it was sufficient to disregard the requirement that the child must have been born after the dissolution of the mother ’ s marriage.",
"14. Following the advisory opinion of the Advocate General, the Supreme Court rejected the appeal on 16 November 1990.",
"The Supreme Court did not rule on the question whether section 1:198 CC violated Article 8 (art. 8), or Article 14 taken together with Article 8 (art. 14+8). It considered that it was not necessary to do so, because it agreed with the Court of Appeal that, even if there had been such a violation, solving the problem of what should replace section 1:198 CC went beyond the limits of the judiciary ’ s powers to develop the law. This finding was based on the following reasoning:",
"\"In this connection, it should not be overlooked that if a possibility were to be created for the mother to deny [her husband ’ s] paternity [of a child born] during marriage, the question would immediately arise as to what other limitations should apply in order not to jeopardise the child ’ s interest in certainty regarding its descent from its legitimate parents, which interest the child generally has and which is part of the basis for the present system. Such limitations have therefore also been written into the Bill to Reform the Law of Descent ( Wetsvoorstel Herziening Afstammingsrecht; Bijlage bij de Handelingen van de Tweede Kamer der Staten- Generaal - Annex to the Records of the Lower House of Parliament -, 1987-88, 20626, sections 201 et seq.), which is now before Parliament ... [I]t is not certain whether [these limitations] will be retained, added to or withdrawn in the course of the further parliamentary discussion, many variations being conceivable, regard also being had to the need to ensure equal treatment of the father and the mother, in so far, at any rate, that unequal treatment is not justified.\"",
"The judgment of the Supreme Court was reported in Nederlandse Jurisprudentie (Netherlands Law Reports - \"NJ\"), 1991, 475.",
"15. Three more children were born to Mrs Kroon and Mr Zerrouk after the birth of Samir : a daughter, Nadia, in 1989 and twins, Jamal and Jamila, in 1992. They were all recognised by Mr Zerrouk.",
"Mrs Kroon and Mr Zerrouk do not cohabit. The applicants claim, however, that Mr Zerrouk contributes to the care and upbringing of their children."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The register of births",
"16. Every municipality has a separate register for births (section 1:16 (1) CC); this is kept by one or more registrars of births, deaths and marriages (section 1:16 (2)).",
"An entry in the register of births, or birth certificate, mentions the mother ’ s husband as the father if the mother was married at the time of the birth or within a period of 306 days immediately preceding the birth; in all other cases, the name of the father is mentioned only if he recognises the child before or at the time the entry is made (section 1:17 (1) (c) CC).",
"17. An interested party or the public prosecutor ( officier van justitie ) can apply to the Regional Court within the jurisdiction of which the register in question is located for an order to correct or add to the register of births. The Regional Court ’ s decision is forwarded to the registrar of births, deaths and marriages; the correction or addition is made in the form of a note in the margin or at the foot of the certificate (section 1:29 (1)-(3) CC).",
"B. Establishment of paternity and recognition",
"18. Section 1:197 CC reads as follows:",
"\"The husband shall be the father of a child born in wedlock. Where a child is born before the 307th day following dissolution of the marriage, the former husband shall be its father, unless the mother has remarried.\"",
"Section 1:197 CC thus creates two legal presumptions. Firstly, a child born during marriage is presumed to be the issue of the mother ’ s husband; secondly, a child born before the 307th day following the dissolution of the mother ’ s marriage is presumed to be the progeny of the mother ’ s former husband. The first presumption may be rebutted only by the mother ’ s husband, who to that end must provide proof to the contrary (sections 1:199-200 CC - see paragraph 21 below). The second presumption may be rebutted by either the mother or her former husband; the mother ’ s former husband will, however, have to adduce proof, whereas for the mother a statement is sufficient (section 1:198 CC - see following paragraph).",
"19. Section 1:198 CC reads as follows:",
"\"1. The mother may deny that a child born to her within 306 days following the dissolution of the marriage is the child of her former husband by making a statement to that effect before the registrar of births, deaths and marriages, provided that another man recognises the child by the instrument in which that statement is recorded ...",
"2. The mother ’ s statement and the recognition must take place within one year of the child ’ s birth.",
"3. The [mother ’ s] statement and the recognition shall take effect only if the mother and the man who recognises the child marry each other within one year of the birth of the child ... 4. If a judgment annulling the recognition in an action brought by the former husband becomes final, the mother ’ s statement shall also lose its force.",
"5. ...\"",
"20. In its judgment of 17 September 1993 (NJ 1994, 373), the Supreme Court deprived section 1:198 (3) CC of its effect.",
"In the case in question - in which a child had been born within 306 days of the dissolution of its mother ’ s marriage - it was established, firstly, that there was a relationship between the child and its biological father which qualified as \"family life\" for the purposes of Article 8 (art. 8) of the Convention and, secondly, that the mother and the biological father, who did not wish to marry, wanted the paternity of the mother ’ s former husband to be denied and the child to be recognised by its biological father.",
"The Supreme Court found that section 1:198 (3) CC constituted an \"interference\" within the meaning of Article 8 (art. 8), since it obstructed the formation of legally recognised family ties unless the mother and the biological father got married.",
"In deciding whether such interference was permissible under the terms of Article 8 para. 2 (art. 8-2), the Supreme Court noted that when section 1:198 (3) CC had been enacted it was considered more important to protect a child from being deprived of its \"legitimate\" status than to enable it to establish ties with its biological father. Since then, however, the relative importance of these two opposing interests had changed; in particular, following the judgment of the European Court in the Marckx v. Belgium case (13 June 1979, Series A no. 31), legal differences between \"legitimate\" and \"illegitimate\" children had to a large extent disappeared. In view of these developments, it could no longer be said that in cases where, for the purposes of Article 8 (art. 8) of the Convention, there was a relationship between the child and its biological father amounting to \"family life\", the importance of maintaining a child ’ s \"legitimate\" status overrode the interest protected by section 1:198 (3) CC.",
"21. Section 1:199 CC reads as follows:",
"\"The husband can only deny paternity of the child by bringing an action to this end against the mother as well as against the child, which, unless it has come of age, shall be represented in the proceedings by a guardian ad litem appointed for that purpose by the District Court ( kantonrechter ).\"",
"Section 1:200 CC reads:",
"\"1. The court shall allow the action to deny paternity if the husband cannot be the father of the child.",
"2. If during the period in which the child was conceived the husband did not have intercourse with the mother, or if they lived apart during that time, the court shall also declare the action to deny paternity well-founded, unless facts are established which make it appear possible that the husband is the father of the child.\"",
"Such proceedings must be brought within six months from the day on which the father became aware of the fact that the child had been born; however, if the mother has made a statement of the kind provided for in section 1:198 CC (see paragraph 19 above), this time-limit does not expire until eighteen months after the birth of the child (section 1:203 CC).",
"22. According to section 1:205 CC, legitimacy is proved by a person ’ s parentage ( afstamming ) and the marriage of his or her parents. If there is no birth certificate, the parentage of a \"legitimate\" child is proved by the undisturbed possession of the status of \"legitimate\" child.",
"23. Section 1:221 (1) CC reads as follows:",
"\"An illegitimate child has the status of natural child ( natuurlijk kind) of its mother. Upon recognition it acquires the status of natural child of its father.\"",
"Section 1:222 CC reads as follows:",
"\"An illegitimate child and its descendants have legally recognised family ties ( familierechtelijke betrekkingen ) with the child ’ s mother and her blood relations and, after the child has been recognised, also with the father and his blood relations.\"",
"Section 1:223 CC reads as follows:",
"\"Recognition may be effected: (a) on the child ’ s birth certificate; (b) by an instrument of recognition drawn up by a registrar of births, deaths and marriages; (c) by any notarial deed ( notariële akte ).\"",
"There is no requirement that the man recognising an \"illegitimate\" child should be the biological father. Moreover, it is not possible for a man to recognise a \"legitimate\" child, even if he is the biological father.",
"Recognition under section 1:198 CC (see paragraph 19 above) may be annulled on application by the mother ’ s former husband if the man who has recognised the child is not the child ’ s biological father (section 1:225 para. 3 CC).",
"C. Adoption by a parent and a stepparent of the child ( stiefouderadoptie )",
"24. Section 1:227 CC reads as follows:",
"\"1. Adoption is effected by a decision of the Regional Court at the request of a married couple who wish to adopt a child.",
"2. The request can only be granted if the adoption is in the apparent best interests of the child, as regards both breaking the ties with the [natural] parents and reinforcing the ties with the adoptive parents, or - in the case of adoption of a legitimate or natural child of one of the adoptive parents - as regards both breaking the ties with the other parent and reinforcing the ties with the stepparent, and provided that the conditions laid down in the following section are satisfied.",
"3. ...",
"4. ...\"",
"Section 1:228 CC reads as follows:",
"\"1. Adoption shall be subject to the following conditions:",
"(a) ...",
"(b) that the child is not the legitimate or natural child of a legitimate or natural child of one of its adoptive parents;",
"(c) that neither adoptive parent is less than eighteen or more than fifty years older than the child;",
"(d) that the request is not opposed by a parent or the parents with legally recognised family ties with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on the occasion of a similar request by the same couple that was refused, although the conditions laid down in paragraphs (e) to (g) below were satisfied;",
"(e) ...",
"(f) ...",
"(g) that the adoptive parents were married at least five years before the day the request was filed.",
"2. In the case of adoption of a legitimate or natural child of one of the adoptive parents, the conditions set forth in paragraphs (c) and (g) of the preceding subsection shall not apply. In the case of adoption of a legitimate child of one of the adoptive parents, the condition specified in paragraph (d) shall be replaced by the condition that the former spouse, whose marriage with the spouse of the stepparent has been terminated [by divorce or dissolution of the marriage after judicial separation], if he or she has legally recognised family ties with the child, does not oppose the request.",
"3. ...\"",
"Section 1:229 (1) CC reads as follows:",
"\"By adoption the adopted person acquires the status of legitimate child of the adoptive parents. However, if the adopted person already had the status of legitimate child of one of the spouses who adopted him or her, he or she shall retain it and by adoption acquire the status of legitimate child of the other spouse.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"25. Mrs Kroon, Mr Zerrouk and Samir M ’ Hallem-Driss applied to the Commission on 15 May 1991. They complained that they were unable under Netherlands law to obtain recognition of Mr Zerrouk ’ s paternity of Samir and that while a married man might deny the paternity of a child born in wedlock, it was not open to a married woman to do so; they relied on Article 8 (art. 8) of the Convention, both taken alone and in conjunction with Article 14 (art. 14+8). They further argued that by not accepting these claims the Supreme Court had denied them an effective remedy within the meaning of Article 13 (art. 13).",
"26. On 31 August 1992 the Commission declared the application (no. 18535/91) admissible as to the complaints relating to Articles 8 and 14 (art. 8, art. 14) of the Convention and inadmissible as to the remainder. In its report of 7 April 1993 (Article 31) (art. 31), it expressed the opinion, by twelve votes to six, that there had been a violation of Article 8 (art. 8) taken alone and, unanimously, that there had been no violation of Article 14 in conjunction with Article 8 (art. 14+8). The full text of the Commission ’ s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS TO THE COURT",
"27. In their memorial, the Government concluded",
"\"that in the present case:",
"- Article 8 (art. 8) was not applicable, or",
"- Article 8 para. 1 (art. 8-1) had not been violated, or",
"- the restriction of the rights referred to in Article 8 para. 1 (art. 8-1) was justifiable in accordance with Article 8 para. 2 (art. 8-2), and that",
"- Article 14 in conjunction with Article 8 (art. 14+8) had not been violated\".",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION",
"28. The applicants complained that under Netherlands law it was not possible for Mrs Kroon to have entered in the register of births any statement that Mr M ’ Hallem-Driss was not Samir ’ s father, with the result that Mr Zerrouk was not able to recognise Samir as his child. They relied on Article 8 (art. 8) of the Convention, which reads:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"The Government denied that any violation had taken place, whereas the Commission agreed with the applicants.",
"A. Applicability of Article 8 (art. 8)",
"29. The Government argued that the relationship between Mr Zerrouk on the one hand and Mrs Kroon and Samir on the other did not amount to \"family life\". Since Samir had been born of an extramarital relationship, there was no family tie ipso jure between him and Mr Zerrouk. Moreover, Mrs Kroon and Mr Zerrouk had chosen not to marry and it was from choice that the latter did not reside with Mrs Kroon and Samir. In addition, the Government alleged that Mr Zerrouk did not contribute to Samir ’ s care and upbringing in any way and that there was nothing to show that he fulfilled the role of Samir ’ s \"social father\".",
"The Commission noted the long-standing relationship between Mrs Kroon and Mr Zerrouk and the fact that it was not disputed that not only was the latter the biological father of Samir but also three other children had been born of that relationship.",
"The applicants noted that Netherlands law did not require a man to live with a child and its mother in order to have the right to recognise the child as his and thereby create legally recognised family ties. They also claimed that Mr Zerrouk did in fact spend half his time on Samir ’ s care and upbringing and made financial contributions from his modest income.",
"30. Throughout the domestic proceedings it was assumed by all concerned, including the registrar of births, deaths and marriages, that the relationship in question constituted \"family life\" and that Article 8 (art. 8) was applicable; this was also accepted by the Netherlands courts.",
"In any case, the Court recalls that the notion of \"family life\" in Article 8 (art. 8) is not confined solely to marriage-based relationships and may encompass other de facto \"family ties\" where parties are living together outside marriage (see as the most recent authority, the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 17-18, para. 44). Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto \"family ties\"; such is the case here, as since 1987 four children have been born to Mrs Kroon and Mr Zerrouk.",
"A child born of such a relationship is ipso jure part of that \"family unit\" from the moment of its birth and by the very fact of it (see the Keegan judgment, ibid.). There thus exists between Samir and Mr Zerrouk a bond amounting to family life, whatever the contribution of the latter to his son ’ s care and upbringing.",
"Article 8 (art. 8) is therefore applicable.",
"B. General principles",
"31. The Court reiterates that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective \"respect\" for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, as the most recent authority, the above-mentioned Keegan judgment, p. 19, para. 49).",
"32. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth or as soon as practicable thereafter the child ’ s integration in his family (see, mutatis mutandis, the above-mentioned Keegan judgment, p. 19, para. 50).",
"C. Compliance with Article 8 (art. 8)",
"33. The applicants argued that Article 8 para. 1 (art. 8-1) placed the Netherlands under a positive obligation to enable Mr Zerrouk to recognise Samir as his child and so establish legally recognised family ties between the two.",
"In the alternative, the applicants suggested that the existence of legislation which made impossible such recognition constituted an \"interference\" with their right to respect for their family life and that such interference was not necessary in a democratic society.",
"34. The Government argued that, even assuming \"family life\" to exist, the Netherlands had complied fully with any positive obligations it might have as regards the applicants.",
"They pointed, firstly, to the possibility of \"stepparent adoption\" (see paragraph 24 above), i.e. adoption of Samir by Mrs Kroon and Mr Zerrouk. It was true that this possibility was contingent on there being no opposition from Mr Omar M ’ Hallem-Driss and on Mrs Kroon and Mr Zerrouk marrying each other. However, the possibility of any objection on the part of Mr M ’ Hallem-Driss could be discounted; if, for reasons of their own, Mrs Kroon and Mr Zerrouk did not wish to marry, that was not a state of affairs for which the State could be held responsible, since it placed no obstacles in the way of their marriage.",
"Further, under legislation in the course of preparation, an unmarried parent who had previously exercised sole parental authority over his or her child would be allowed joint custody with his or her partner; this would give the partner complete legal authority, on an equal footing with the parent.",
"In the alternative, the Government argued that if there was an \"interference\" with the applicants ’ right to respect for their family life then this was \"necessary in a democratic society\" in the interests of legal certainty.",
"35. In the Commission ’ s view the fact that it was impossible under Netherlands law for anyone but Mr Omar M ’ Hallem-Driss to deny his paternity and for Mr Zerrouk to recognise Samir as his child constituted a lack of respect for the applicants ’ private and family life, in breach of a positive obligation imposed by Article 8 (art. 8).",
"36. The Court recalls that in the instant case it has been established that the relationship between the applicants qualifies as \"family life\" (see paragraph 30 above). There is thus a positive obligation on the part of the competent authorities to allow complete legal family ties to be formed between Mr Zerrouk and his son Samir as expeditiously as possible.",
"37. Under Netherlands law the ordinary instrument for creating family ties between Mr Zerrouk and Samir was recognition (see paragraph 23 above). However, since Samir was the \"legitimate\" child of Mr Omar M ’ Hallem-Driss, Mr Zerrouk would only be in a position to recognise Samir after Mr M ’ Hallem-Driss ’ s paternity had been successfully denied. Except for Mr M ’ Hallem-Driss himself, who was untraceable, only Mrs Kroon could deny Mr Omar M ’ Hallem-Driss ’ s paternity. However, under section 1:198 CC the possibility for the mother of a \"legitimate\" child to deny the paternity of her husband was, and is, only open in respect of a child born within 306 days of dissolution of the marriage (see paragraph 19 above). Mrs Kroon could not avail herself of that possibility since Samir was born when she was still married. Indeed, this was not contested by the Government.",
"38. The Government, however, suggested that there were other ways of achieving an equivalent result.",
"The first such alternative suggested by the Government, step-parent adoption, would make Samir the \"legitimate\" child of Mr Zerrouk and Mrs Kroon. However, it would require Mrs Kroon and Mr Zerrouk to marry each other. For whatever reason, they do not wish to do so.",
"A solution which only allows a father to create a legal tie with a child with whom he has a bond amounting to family life if he marries the child ’ s mother cannot be regarded as compatible with the notion of \"respect\" for family life.",
"39. The second alternative suggested by the Government, namely that of joint custody, is not an acceptable solution either. Even if the legislation being prepared comes into force as the Government anticipate, joint custody will leave the legal ties between Samir and Mr Omar M ’ Hallem-Driss intact and will continue to preclude the formation of such ties between Samir and Mr Zerrouk.",
"40. In the Court ’ s opinion, \"respect\" for \"family life\" requires that biological and social reality prevail over a legal presumption which, as in the present case, flies in the face of both established fact and the wishes of those concerned without actually benefiting anyone. Accordingly, the Court concludes that, even having regard to the margin of appreciation left to the State, the Netherlands has failed to secure to the applicants the \"respect\" for their family life to which they are entitled under the Convention.",
"There has accordingly been a violation of Article 8 (art. 8).",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)",
"41. The applicants also complained that, while Netherlands law made it possible for the husband of a child ’ s mother to deny being the father of the child, the mother ’ s right to challenge her husband ’ s paternity was much more limited. They relied on Article 14 (art. 14) of the Convention, which reads:",
"\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status.\"",
"42. The Court finds that this complaint is essentially the same as the one under Article 8 (art. 8). Having found a violation of that provision taken alone, the Court does not consider that any separate issue arises under that Article in conjunction with Article 14 (art. 14+8).",
"III. PPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION",
"43. Under Article 50 (art. 50) of the Convention,",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of the decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"A. Damage",
"44. The applicants maintained that they had suffered non-pecuniary damage as a result of the Netherlands ’ failure to allow the establishment of legal family ties according to their wishes. Since there was no possibility under Netherlands law of obtaining restitutio in integrum, they claimed compensation in the amount of 30,000 Netherlands guilders (NLG).",
"45. The Court considers it likely that the impossibility of obtaining legal recognition of their family ties has caused the applicants some frustration. However, this is sufficiently compensated by the finding of a violation of the Convention.",
"B. Costs and expenses",
"46. As to costs and expenses incurred in the Strasbourg proceedings, the applicants claimed NLG 26,000, plus value-added tax, for lawyer ’ s fees (65 hours at NLG 400), NLG 250 for out-of-pocket expenses and an unspecified amount for travel and subsistence in connection with their representative ’ s attendance at the Court ’ s hearing.",
"47. The Court reiterates that it allows claims for costs and expenses only to the extent to which they were actually and necessarily incurred and reasonable as to quantum.",
"In the instant case the Court finds it reasonable to award NLG 20,000 for lawyer ’ s fees, less 13,855.85 French francs (FRF) paid by the Council of Europe in legal aid; any value-added tax that may be due is to be added to the resulting figure. However, it rejects the claims for out-of-pocket expenses and Mr Willems ’ s travel and subsistence, since these have been covered by the Council of Europe ’ s legal-aid scheme."
] |
67 | X, Y and Z v. the United Kingdom | 22 April 1997 | The first applicant, X, a female-to-male transsexual, was living in a permanent and stable union with the second applicant, Y, a woman. The third applicant, Z, was born to the second applicant as a result of artificial insemination by donor. The applicants complained that X’s role as Z’s father was not recognised and that their situation amounted to discrimination. | The Court, considering that de facto family ties linked the three applicants, held that Article 8 (right to respect for private and family life) of the Convention was applicable in this case. It further found that, in the present case, there had been no violation of Article 8 of the Convention: given that transsexuality raised complex scientific, legal, moral and social issues, in respect of which there was no generally shared approach among the Contracting States, the Court was of the opinion that Article 8 could not, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z did not amount to a failure to respect family life within the meaning of that provision. | Parental Rights | Filiation | [
"I. Circumstances of the case",
"12. The applicants are British citizens, resident in Manchester, England.",
"The first applicant, \"X\", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns \"he\", \"him\" and \"his\".",
"Since 1979 he has lived in a permanent and stable union with the second applicant, \"Y\", a woman born in 1959. The third applicant, \"Z\", was born in 1992 to the second applicant as a result of artificial insemination by donor (\"AID\"). Y has subsequently given birth to a second child by the same method.",
"13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to \"masculine\" roles of behaviour. This discrepancy caused him to suffer suicidal depression during adolescence.",
"In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing.",
"14. In 1990, X and Y applied through their general practitioner (\"GP\") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused.",
"15. They appealed, making representations which included reference to a research study in which it was reported that in a study of thirty-seven children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect (R. Green, \"Sexual identity of 37 children raised by homosexual or transsexual parents\", American Journal of Psychiatry, 1978, vol. 135, pp. 692-97).",
"In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990 (see paragraph 21 below).",
"16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992.",
"17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y ’ s child. In a reply dated 4 June 1992 to X ’ s Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X ’ s surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child.",
"18. Nonetheless, following Z ’ s birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child ’ s father and that part of the register was left blank. Z was given X ’ s surname in the register (see paragraph 24 below).",
"19. In November 1995, X ’ s existing job contract came to an end and he applied for approximately thirty posts. The only job offer which he received was from a university in Botswana. The conditions of service included accommodation and free education for the dependants of the employee. However, X decided not to accept the job when he was informed by a Botswanan official that only spouses and biological or adopted children would qualify as \"dependants\". He subsequently obtained another job in Manchester where he continues to work."
] | [
"II. Relevant domestic law and practice",
"A. Definition of gender in domestic law",
"20. English law defines a person ’ s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery (Corbett v. Corbett [1971] Probate Reports 83 and R. v. Tan [1983] Queen ’ s Bench Reports 1053 (Court of Appeal)).",
"As a result of this principle, a female-to-male transsexual is not permitted to marry a woman and cannot be regarded as the father of a child.",
"B. Children conceived by artificial insemination",
"21. The Human Fertility and Embryology Act 1990 (\"the 1990 Act\") provides, inter alia, that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section 28 (3)).",
"C. Registration of births",
"22. Section 1 (1) of the Births and Deaths Registration Act 1953 (\"the 1953 Act\") requires that certain prescribed details concerning the birth of every child born in England and Wales, including the names of the parents, be entered in a register. The Registrar General is the official ultimately responsible for the administration of this scheme.",
"23. If the child ’ s father (or the person regarded by law as the father - see paragraph 21 above) is not married to the mother, his name shall not automatically be entered on the register in the space provided for the father. However, it will be entered if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987).",
"24. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it. A certificate of the latter kind, known as a \"short certificate of birth\", is in a prescribed form and contains such particulars as are prescribed by regulations made under the 1953 Act. These particulars are the name, surname, sex and date and place of birth of the individual concerned. Under English law, a child may be given any first name or surname as the parents see fit, and may change his or her name or surname at any time, without restriction.",
"D. Parental responsibility",
"25. \"Parental responsibility\" in respect of a child automatically vests in the mother and, where she is married, in her husband. It may, additionally, be granted to certain other persons (see paragraphs 26-27 below).",
"\"Parental responsibility\" means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his or her property (section 3 of the Children Act 1989 - \"the 1989 Act\").",
"It does not, without more, confer on the child any rights in the property of the person granted parental responsibility, such as the right to inherit on intestacy or to financial support. Similarly, it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions, from nationality and immigration measures or from rights accruing from that person ’ s citizenship in the European Union.",
"26. The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement, in a prescribed form, with the mother (section 4 of the 1989 Act).",
"27. Parental responsibility cannot vest in any other person, unless a \"residence order\" in respect of the child is made in his or her favour.",
"A residence order is \"an order settling the arrangements to be made as to the person with whom the child is to live\" (section 8 of the 1989 Act). Any person may apply for such an order (although individuals outside certain defined categories must first seek the leave of the court in order to apply).",
"Where the court makes a residence order in respect of any person who is not the parent or guardian of the child, that person is automatically vested with parental responsibility for the child as long as the residence order remains in force (section 12 (2) of the 1989 Act).",
"28. Thus, although the first applicant could not apply directly for parental responsibility of the third applicant, he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force. On 24 June 1994, Mr Justice Douglas-Brown in the Manchester High Court made a joint residence order in favour of two cohabiting lesbian women in respect of the child of one of them (unreported).",
"PROCEEDINGS BEFORE THE COMMISSION",
"29. In their application to the Commission of 6 May 1993 (no. 21830/93) as declared admissible, the applicants complained that, contrary to Article 8 of the Convention (art. 8), they were denied respect for their family and private life as a result of the lack of recognition of the first applicant ’ s role as father to the third applicant and that the resulting situation in which they were placed was discriminatory, in violation of Articles 8 and 14 taken together (art. 14+8).",
"30. On 1 December 1994, the Commission declared admissible the complaints under Articles 8 and 14 of the Convention (art. 8, art. 14), and declared inadmissible complaints under Articles 12 and 13 (art. 12, art. 13). In its report of 27 June 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (art. 8) (thirteen votes to five) and that it was not necessary to examine whether there had been a violation of Article 14 in conjunction with Article 8 (art. 14+8) (seventeen votes to one). The full text of the Commission ’ s opinion and of the five separate opinions contained in the report are reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"31. At the hearing on 27 August 1996 the Government, as they had done in their memorial, asked the Court to hold that there had been no violation of Articles 8 or 14 of the Convention (art. 8, art. 14).",
"On the same occasion, the applicants requested the Court to reach a finding of violation and to award them just satisfaction under Article 50 (art. 50).",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ( art. 8)",
"32. The applicants, with whom the Commission agreed, submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of Article 8 of the Convention (art. 8), which provides:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"The Government denied that Article 8 (art. 8) was applicable and, in the alternative, claimed that there had been no violation.",
"A. The existence of \"family life\"",
"33. The applicants submitted that they had shared a \"family life\" within the meaning of Article 8 (art. 8) since Z ’ s birth. They emphasised that, according to the jurisprudence of the Commission and the Court, social reality, rather than formal legal status, was decisive. Thus, it was important to note that X had irrevocably changed many of his physical characteristics and provided financial and emotional support to Y and Z. To all appearances, the applicants lived as a traditional family.",
"34. The Government did not accept that the concept of \"family life\" applied to the relationships between X and Y or X and Z. They reasoned that X and Y had to be treated as two women living together, because X was still regarded as female under domestic law and a complete change of sex was not medically possible. Case-law of the Commission indicated that a \"family\" could not be based on two unrelated persons of the same sex, including a lesbian couple (see the Commission ’ s decisions on admissibility in X and Y v. the United Kingdom, application no. 9369/81, Decisions and Reports 32, p. 220, and Kerkhoven and Others v. the Netherlands, application no. 15666/89). Nor could X be said to enjoy \"family life\" with Z since he was not related to the child by blood, marriage or adoption.",
"At the hearing before the Court, counsel for the Government accepted that if X and Y applied for and were granted a joint residence order in respect of Z (see paragraph 27 above), it would be difficult to maintain that there was no \"family life\" for the purposes of Article 8 (art. 8).",
"35. The Commission considered that the relationship between X and Y could not be equated with that of a lesbian couple, since X was living in society as a man, having undergone gender reassignment surgery. Aside from the fact that X was registered at birth as a woman and was therefore under a legal incapacity to marry Y or be registered as Z ’ s father, the applicants ’ situation was indistinguishable from the traditional notion of \"family life\".",
"36. The Court recalls that the notion of \"family life\" in Article 8 (art. 8) is not confined solely to families based on marriage and may encompass other de facto relationships (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 14, para. 31; the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 17, para. 44; and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, para. 30). When deciding whether a relationship can be said to amount to \"family life\", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see, for example, the above-mentioned Kroon and Others judgment, loc. cit.).",
"37. In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z ’ s \"father\" in every respect since the birth (see paragraphs 14-16 above). In these circumstances, the Court considers that de facto family ties link the three applicants.",
"It follows that Article 8 is applicable (art. 8).",
"B. Compliance with Article 8 (art. 8)",
"1. The arguments as to the applicable general principles",
"38. The applicants pointed out that the Court had recognised in its Rees v. the United Kingdom judgment (17 October 1986, Series A no. 106, p. 19, para. 47), that the need for appropriate legal measures affecting transsexuals should be kept under review having regard in particular to scientific and societal developments. They maintained that there had been significant development since that decision: in particular, the European Parliament and the Parliamentary Assembly of the Council of Europe had called for comprehensive recognition of transsexual identity (Resolution OJ 1989 C256 and Recommendation 1117 of 29 September 1989 respectively); the Court of Justice of the European Communities had decided that the dismissal of a transsexual for a reason related to gender reassignment amounted to discrimination contrary to Community Directive 76/207 (P. v. S. and Cornwall County Council, C-13/94, 30 April 1996); and scientific research had been published which suggested that transsexuality was not merely a psychological disorder, but had a physiological basis in the structure of the brain (see, for example, \"Biological Aspects of Transsexualism\" by Professor L.J.G. Gooren, Council of Europe document no. CJ-DE/XXIII (93) 5, and Zhou, Hofman, Gooren and Swaab, \"A sex difference in the human brain and its relation to transsexuality \", Nature, 2 November 1995, vol. 378, p. 68). These developments made it appropriate for the Court to re-examine the principles underlying its decisions in the above-mentioned Rees case and in Cossey v. the United Kingdom (27 September 1990, Series A no. 184), in so far as they had an impact on the present problem. The Court should now hold that the notion of respect for family and/or private life required States to recognise the present sexual identity of post-operative transsexuals for legal purposes, including parental rights.",
"However, they also emphasised that the issue in their case was very different from that in Rees and Cossey, since X was not seeking to amend his own birth certificate but rather to be named in Z ’ s birth certificate as her father. They submitted that the margin of appreciation afforded to the respondent State should be narrower in such a case and the need for positive action to ensure respect much stronger, having regard to the interests of the child in having her social father recognised as such by law.",
"39. The Government contended that Contracting States enjoyed a wide margin of appreciation in relation to the complex issues raised by transsexuality, in view of the lack of a uniform approach to the problem and the transitional state of the law. They denied that there had been any significant change in the scientific or legal position with regard to transsexuals: despite recent research, there still remained uncertainty as to the essential nature of the condition and there was not yet any sufficiently broad consensus between the member States of the Council of Europe (see, for example, the Report of the Proceedings of the XXIIIrd Colloquy on European Law, Transsexualism, Medicine and the Law, Council of Europe, 1993, and S.M. Breedlove, \"Another Important Organ\", Nature, 2 November 1995, vol. 378, p. 15). The judgment of the Court of Justice of the European Communities in P. v. S. and Cornwall County Council (cited at paragraph 38 above) did not assist the applicants because it was not concerned with the extent to which a State was obliged to recognise a person ’ s change of sex for legal purposes.",
"Like the applicants, the Government stressed that the present case was not merely concerned with transsexuality. Since it also raised difficult and novel questions relating to the treatment of children born by AID, the State should enjoy a very broad margin of appreciation.",
"40. The Commission referred to a clear trend within the Contracting States towards the legal recognition of gender reassignment. It took the view that, in the case of a transsexual who had undergone gender reassignment surgery in the Contracting State and who lived there as part of a family relationship, there had to be a presumption in favour of legal recognition of that relationship, the denial of which required special justification.",
"2. The Court ’ s general approach",
"41. The Court reiterates that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interferences by the public authorities, there may in addition be positive obligations inherent in an effective respect for private or family life. The boundaries between the State ’ s positive and negative obligations under this provision (art. 8) do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation (see, for example, the above-mentioned Rees judgment, p. 14, para. 35, and the above-mentioned Kroon and Others judgment, p. 56, para. 31).",
"42. The present case is distinguishable from the previous cases concerning transsexuals which have been brought before the Court (see the above-mentioned Rees judgment, the above-mentioned Cossey judgment and the B. v. France judgment of 25 March 1992, Series A no. 232-C), because here the applicants ’ complaint is not that the domestic law makes no provision for the recognition of the transsexual ’ s change of identity, but rather that it is not possible for such a person to be registered as the father of a child; indeed, it is for this reason that the Court is examining this case in relation to family, rather than private, life (see paragraph 37 above).",
"43. It is true that the Court has held in the past that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible, from the moment of birth or as soon as practicable thereafter, the child ’ s integration in his family (see for example the above-mentioned Marckx judgment, p. 15, para. 31; the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 29, para. 72; the above-mentioned Keegan judgment, p. 19, para. 50; and the above-mentioned Kroon and Others judgment, p. 56, para. 32). However, hitherto in this context it has been called upon to consider only family ties existing between biological parents and their offspring. The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual.",
"44. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. In addition, it has not been established before the Court that there exists any generally shared approach amongst the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law. Indeed, according to the information available to the Court, although the technology of medically assisted procreation has been available in Europe for several decades, many of the issues to which it gives rise, particularly with regard to the question of filiation, remain the subject of debate. For example, there is no consensus amongst the member States of the Council of Europe on the question whether the interests of a child conceived in such a way are best served by preserving the anonymity of the donor of the sperm or whether the child should have the right to know the donor ’ s identity.",
"Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation (see, mutatis mutandis, the above mentioned Rees judgment, p. 15, para. 37, and the above-mentioned Cossey judgment, p. 16, para. 40).",
"3. Whether a fair balance was struck in the instant case",
"45. The applicants, with whom the Commission agreed, argued that a number of consequences flowed from the lack of legal recognition of X ’ s role as father. Perhaps most importantly, the child ’ s sense of security within the family might be undermined. Furthermore, the absence of X ’ s name on her birth certificate might cause distress on those occasions when a full-length certificate had to be produced, for example on registration with a doctor or school, if an insurance policy was taken out on her life or when she applied for a passport. Although Z was a British citizen by birth and could trace connection through her mother in immigration and nationality matters, problems could still arise if X sought to work abroad. For example, he had already had to turn down an offer of employment in Botswana because he had been informed that Y and Z would not have been recognised as his \"dependants\" and would not, therefore, have been entitled to receive certain benefits (see paragraph 19 above). Moreover, in contrast to the position where a parent-child relationship was recognised by law, Z could not inherit from X on intestacy or succeed to certain tenancies on X ’ s death. The possibility of X obtaining a residence order in respect of Z (see paragraph 27 above) did not satisfy the requirement of respect, since this would entail the incurring of legal expense and an investigation by a court welfare officer which might distress the child.",
"In their submission, it was apparent that the legal recognition sought would not interfere with the rights of others or require any fundamental reorganisation of the United Kingdom system of registration of births, since the Human Fertility and Embryology Act 1990 allowed a man who was not a transsexual to be registered as the father of a child born to his female partner by AID (see paragraph 21 above).",
"46. The Government pointed out that the applicants were not restrained in any way from living together as a \"family\" and they asserted that the concerns expressed by them were highly theoretical. Furthermore, X and Y could jointly apply for a residence order, conferring on them parental rights and duties in relation to Z (see paragraph 27 above).",
"47. First, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront. In this respect, the Court notes that, whilst it has not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by AID in general, it is not clear that it would necessarily be to the advantage of such children.",
"In these circumstances, the Court considers that the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have undesirable or unforeseen ramifications for children in Z ’ s position. Furthermore, such an amendment might have implications in other areas of family law. For example, the law might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a \"father\" in law while still being treated for other legal purposes as female and capable of contracting marriage to a man.",
"48. Against these general interests, the Court must weigh the disadvantages suffered by the applicants as a result of the refusal to recognise X in law as Z ’ s \"father\".",
"The applicants identify a number of legal consequences flowing from this lack of recognition (see paragraph 45 above). For example, they point to the fact that if X were to die intestate, Z would have no automatic right of inheritance. The Court notes, however, that the problem could be solved in practice if X were to make a will. No evidence has been adduced to show that X is the beneficiary of any transmissible tenancies of the type referred to; similarly, since Z is a British citizen by birth and can trace connection through her mother in immigration and nationality matters, she will not be disadvantaged in this respect by the lack of a legal relationship with X.",
"The Court considers, therefore, that these legal consequences would be unlikely to cause undue hardship given the facts of the present case.",
"49. In addition, the applicants claimed that Z might suffer various social or developmental difficulties. Thus, it was argued that she would be caused distress on those occasions when it was necessary to produce her birth certificate.",
"In relation to the absence of X ’ s name on the birth certificate, the Court notes, first, that unless X and Y choose to make such information public, neither the child nor any third party will know that this absence is a consequence of the fact that X was born female. It follows that the applicants are in a similar position to any other family where, for whatever reason, the person who performs the role of the child ’ s \"father\" is not registered as such. The Court does not find it established that any particular stigma still attaches to children or families in such circumstances.",
"Secondly, the Court recalls that in the United Kingdom a birth certificate is not in common use for administrative or identification purposes and that there are few occasions when it is necessary to produce a full length certificate (see paragraph 24 above).",
"50. The applicants were also concerned, more generally, that Z ’ s sense of personal identity and security within her family would be affected by the lack of legal recognition of X as father.",
"In this respect, the Court notes that X is not prevented in any way from acting as Z ’ s father in the social sense. Thus, for example, he lives with her, providing emotional and financial support to her and Y, and he is free to describe himself to her and others as her \"father\" and to give her his surname (see paragraph 24 above). Furthermore, together with Y, he could apply for a joint residence order in respect of Z, which would automatically confer on them full parental responsibility for her in English law (see paragraph 27 above).",
"51. It is impossible to predict the extent to which the absence of a legal connection between X and Z will affect the latter ’ s development. As previously mentioned, at the present time there is uncertainty with regard to how the interests of children in Z ’ s position can best be protected (see paragraph 44 above) and the Court should not adopt or impose any single viewpoint.",
"52. In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 (art. 8) cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision (art. 8).",
"It follows that there has been no violation of Article 8 of the Convention (art. 8).",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)",
"53. In addition, the applicants complained of discrimination contrary to Article 14 of the Convention (art. 14), which provides:",
"\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"",
"54. The applicants did not develop this complaint in their memorial, since they adopted the findings of the Commission (see paragraph 55 below). However, at the hearing before the Court, their counsel referred in particular to the fact that had X been born a man he could have been registered as Z ’ s father under the provisions of the Human Fertility and Embryology Act 1990 (see paragraph 21 above).",
"55. The Government submitted that no separate issue arose in connection with Article 14 (art. 14). In view of its finding of a violation of Article 8 of the Convention (art. 8), the Commission did not find it necessary to examine this complaint.",
"56. The Court considers that the complaint under Article 14 (art. 14) is tantamount to a restatement of the complaint under Article 8 (art. 8), and raises no separate issue. In view of its finding in respect of the latter provision (art. 8) (see paragraph 52 above), there is no need to examine the issue again in the context of Article 14 (art. 14).",
"Accordingly, it is not necessary to consider this complaint."
] |
68 | X, Y and Z v. the United Kingdom | 22 April 1997 | The first applicant, X, a female-to-male transsexual, was living in a permanent and stable union with the second applicant, Y, a woman. The third applicant, Z, was born to the second applicant as a result of artificial insemination by donor. The applicants submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of their right to respect for family life. | Whilst the Court concluded that here had been no violation of Article 8 (right to respect for private and family life) of the Convention in the present case, it did nonetheless acknowledge the existence of family life between a transsexual and his partner’s child: “X ha[d] acted as Z’s “father” in every respect” since the birth. In these circumstances the Court consider[ed] that the [de facto] family ties link[ed] the three applicants.” (§ 37 of the judgment). | Gender identity issues | From the ReesChristine Goodwin | [
"I. Circumstances of the case",
"12. The applicants are British citizens, resident in Manchester, England.",
"The first applicant, \"X\", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns \"he\", \"him\" and \"his\".",
"Since 1979 he has lived in a permanent and stable union with the second applicant, \"Y\", a woman born in 1959. The third applicant, \"Z\", was born in 1992 to the second applicant as a result of artificial insemination by donor (\"AID\"). Y has subsequently given birth to a second child by the same method.",
"13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to \"masculine\" roles of behaviour. This discrepancy caused him to suffer suicidal depression during adolescence.",
"In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing.",
"14. In 1990, X and Y applied through their general practitioner (\"GP\") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused.",
"15. They appealed, making representations which included reference to a research study in which it was reported that in a study of thirty-seven children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect (R. Green, \"Sexual identity of 37 children raised by homosexual or transsexual parents\", American Journal of Psychiatry, 1978, vol. 135, pp. 692-97).",
"In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990 (see paragraph 21 below).",
"16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992.",
"17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y ’ s child. In a reply dated 4 June 1992 to X ’ s Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X ’ s surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child.",
"18. Nonetheless, following Z ’ s birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child ’ s father and that part of the register was left blank. Z was given X ’ s surname in the register (see paragraph 24 below).",
"19. In November 1995, X ’ s existing job contract came to an end and he applied for approximately thirty posts. The only job offer which he received was from a university in Botswana. The conditions of service included accommodation and free education for the dependants of the employee. However, X decided not to accept the job when he was informed by a Botswanan official that only spouses and biological or adopted children would qualify as \"dependants\". He subsequently obtained another job in Manchester where he continues to work."
] | [
"II. Relevant domestic law and practice",
"A. Definition of gender in domestic law",
"20. English law defines a person ’ s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery (Corbett v. Corbett [1971] Probate Reports 83 and R. v. Tan [1983] Queen ’ s Bench Reports 1053 (Court of Appeal)).",
"As a result of this principle, a female-to-male transsexual is not permitted to marry a woman and cannot be regarded as the father of a child.",
"B. Children conceived by artificial insemination",
"21. The Human Fertility and Embryology Act 1990 (\"the 1990 Act\") provides, inter alia, that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section 28 (3)).",
"C. Registration of births",
"22. Section 1 (1) of the Births and Deaths Registration Act 1953 (\"the 1953 Act\") requires that certain prescribed details concerning the birth of every child born in England and Wales, including the names of the parents, be entered in a register. The Registrar General is the official ultimately responsible for the administration of this scheme.",
"23. If the child ’ s father (or the person regarded by law as the father - see paragraph 21 above) is not married to the mother, his name shall not automatically be entered on the register in the space provided for the father. However, it will be entered if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987).",
"24. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it. A certificate of the latter kind, known as a \"short certificate of birth\", is in a prescribed form and contains such particulars as are prescribed by regulations made under the 1953 Act. These particulars are the name, surname, sex and date and place of birth of the individual concerned. Under English law, a child may be given any first name or surname as the parents see fit, and may change his or her name or surname at any time, without restriction.",
"D. Parental responsibility",
"25. \"Parental responsibility\" in respect of a child automatically vests in the mother and, where she is married, in her husband. It may, additionally, be granted to certain other persons (see paragraphs 26-27 below).",
"\"Parental responsibility\" means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his or her property (section 3 of the Children Act 1989 - \"the 1989 Act\").",
"It does not, without more, confer on the child any rights in the property of the person granted parental responsibility, such as the right to inherit on intestacy or to financial support. Similarly, it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions, from nationality and immigration measures or from rights accruing from that person ’ s citizenship in the European Union.",
"26. The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement, in a prescribed form, with the mother (section 4 of the 1989 Act).",
"27. Parental responsibility cannot vest in any other person, unless a \"residence order\" in respect of the child is made in his or her favour.",
"A residence order is \"an order settling the arrangements to be made as to the person with whom the child is to live\" (section 8 of the 1989 Act). Any person may apply for such an order (although individuals outside certain defined categories must first seek the leave of the court in order to apply).",
"Where the court makes a residence order in respect of any person who is not the parent or guardian of the child, that person is automatically vested with parental responsibility for the child as long as the residence order remains in force (section 12 (2) of the 1989 Act).",
"28. Thus, although the first applicant could not apply directly for parental responsibility of the third applicant, he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force. On 24 June 1994, Mr Justice Douglas-Brown in the Manchester High Court made a joint residence order in favour of two cohabiting lesbian women in respect of the child of one of them (unreported).",
"PROCEEDINGS BEFORE THE COMMISSION",
"29. In their application to the Commission of 6 May 1993 (no. 21830/93) as declared admissible, the applicants complained that, contrary to Article 8 of the Convention (art. 8), they were denied respect for their family and private life as a result of the lack of recognition of the first applicant ’ s role as father to the third applicant and that the resulting situation in which they were placed was discriminatory, in violation of Articles 8 and 14 taken together (art. 14+8).",
"30. On 1 December 1994, the Commission declared admissible the complaints under Articles 8 and 14 of the Convention (art. 8, art. 14), and declared inadmissible complaints under Articles 12 and 13 (art. 12, art. 13). In its report of 27 June 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (art. 8) (thirteen votes to five) and that it was not necessary to examine whether there had been a violation of Article 14 in conjunction with Article 8 (art. 14+8) (seventeen votes to one). The full text of the Commission ’ s opinion and of the five separate opinions contained in the report are reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"31. At the hearing on 27 August 1996 the Government, as they had done in their memorial, asked the Court to hold that there had been no violation of Articles 8 or 14 of the Convention (art. 8, art. 14).",
"On the same occasion, the applicants requested the Court to reach a finding of violation and to award them just satisfaction under Article 50 (art. 50).",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ( art. 8)",
"32. The applicants, with whom the Commission agreed, submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of Article 8 of the Convention (art. 8), which provides:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"The Government denied that Article 8 (art. 8) was applicable and, in the alternative, claimed that there had been no violation.",
"A. The existence of \"family life\"",
"33. The applicants submitted that they had shared a \"family life\" within the meaning of Article 8 (art. 8) since Z ’ s birth. They emphasised that, according to the jurisprudence of the Commission and the Court, social reality, rather than formal legal status, was decisive. Thus, it was important to note that X had irrevocably changed many of his physical characteristics and provided financial and emotional support to Y and Z. To all appearances, the applicants lived as a traditional family.",
"34. The Government did not accept that the concept of \"family life\" applied to the relationships between X and Y or X and Z. They reasoned that X and Y had to be treated as two women living together, because X was still regarded as female under domestic law and a complete change of sex was not medically possible. Case-law of the Commission indicated that a \"family\" could not be based on two unrelated persons of the same sex, including a lesbian couple (see the Commission ’ s decisions on admissibility in X and Y v. the United Kingdom, application no. 9369/81, Decisions and Reports 32, p. 220, and Kerkhoven and Others v. the Netherlands, application no. 15666/89). Nor could X be said to enjoy \"family life\" with Z since he was not related to the child by blood, marriage or adoption.",
"At the hearing before the Court, counsel for the Government accepted that if X and Y applied for and were granted a joint residence order in respect of Z (see paragraph 27 above), it would be difficult to maintain that there was no \"family life\" for the purposes of Article 8 (art. 8).",
"35. The Commission considered that the relationship between X and Y could not be equated with that of a lesbian couple, since X was living in society as a man, having undergone gender reassignment surgery. Aside from the fact that X was registered at birth as a woman and was therefore under a legal incapacity to marry Y or be registered as Z ’ s father, the applicants ’ situation was indistinguishable from the traditional notion of \"family life\".",
"36. The Court recalls that the notion of \"family life\" in Article 8 (art. 8) is not confined solely to families based on marriage and may encompass other de facto relationships (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 14, para. 31; the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 17, para. 44; and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, para. 30). When deciding whether a relationship can be said to amount to \"family life\", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see, for example, the above-mentioned Kroon and Others judgment, loc. cit.).",
"37. In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z ’ s \"father\" in every respect since the birth (see paragraphs 14-16 above). In these circumstances, the Court considers that de facto family ties link the three applicants.",
"It follows that Article 8 is applicable (art. 8).",
"B. Compliance with Article 8 (art. 8)",
"1. The arguments as to the applicable general principles",
"38. The applicants pointed out that the Court had recognised in its Rees v. the United Kingdom judgment (17 October 1986, Series A no. 106, p. 19, para. 47), that the need for appropriate legal measures affecting transsexuals should be kept under review having regard in particular to scientific and societal developments. They maintained that there had been significant development since that decision: in particular, the European Parliament and the Parliamentary Assembly of the Council of Europe had called for comprehensive recognition of transsexual identity (Resolution OJ 1989 C256 and Recommendation 1117 of 29 September 1989 respectively); the Court of Justice of the European Communities had decided that the dismissal of a transsexual for a reason related to gender reassignment amounted to discrimination contrary to Community Directive 76/207 (P. v. S. and Cornwall County Council, C-13/94, 30 April 1996); and scientific research had been published which suggested that transsexuality was not merely a psychological disorder, but had a physiological basis in the structure of the brain (see, for example, \"Biological Aspects of Transsexualism\" by Professor L.J.G. Gooren, Council of Europe document no. CJ-DE/XXIII (93) 5, and Zhou, Hofman, Gooren and Swaab, \"A sex difference in the human brain and its relation to transsexuality \", Nature, 2 November 1995, vol. 378, p. 68). These developments made it appropriate for the Court to re-examine the principles underlying its decisions in the above-mentioned Rees case and in Cossey v. the United Kingdom (27 September 1990, Series A no. 184), in so far as they had an impact on the present problem. The Court should now hold that the notion of respect for family and/or private life required States to recognise the present sexual identity of post-operative transsexuals for legal purposes, including parental rights.",
"However, they also emphasised that the issue in their case was very different from that in Rees and Cossey, since X was not seeking to amend his own birth certificate but rather to be named in Z ’ s birth certificate as her father. They submitted that the margin of appreciation afforded to the respondent State should be narrower in such a case and the need for positive action to ensure respect much stronger, having regard to the interests of the child in having her social father recognised as such by law.",
"39. The Government contended that Contracting States enjoyed a wide margin of appreciation in relation to the complex issues raised by transsexuality, in view of the lack of a uniform approach to the problem and the transitional state of the law. They denied that there had been any significant change in the scientific or legal position with regard to transsexuals: despite recent research, there still remained uncertainty as to the essential nature of the condition and there was not yet any sufficiently broad consensus between the member States of the Council of Europe (see, for example, the Report of the Proceedings of the XXIIIrd Colloquy on European Law, Transsexualism, Medicine and the Law, Council of Europe, 1993, and S.M. Breedlove, \"Another Important Organ\", Nature, 2 November 1995, vol. 378, p. 15). The judgment of the Court of Justice of the European Communities in P. v. S. and Cornwall County Council (cited at paragraph 38 above) did not assist the applicants because it was not concerned with the extent to which a State was obliged to recognise a person ’ s change of sex for legal purposes.",
"Like the applicants, the Government stressed that the present case was not merely concerned with transsexuality. Since it also raised difficult and novel questions relating to the treatment of children born by AID, the State should enjoy a very broad margin of appreciation.",
"40. The Commission referred to a clear trend within the Contracting States towards the legal recognition of gender reassignment. It took the view that, in the case of a transsexual who had undergone gender reassignment surgery in the Contracting State and who lived there as part of a family relationship, there had to be a presumption in favour of legal recognition of that relationship, the denial of which required special justification.",
"2. The Court ’ s general approach",
"41. The Court reiterates that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interferences by the public authorities, there may in addition be positive obligations inherent in an effective respect for private or family life. The boundaries between the State ’ s positive and negative obligations under this provision (art. 8) do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation (see, for example, the above-mentioned Rees judgment, p. 14, para. 35, and the above-mentioned Kroon and Others judgment, p. 56, para. 31).",
"42. The present case is distinguishable from the previous cases concerning transsexuals which have been brought before the Court (see the above-mentioned Rees judgment, the above-mentioned Cossey judgment and the B. v. France judgment of 25 March 1992, Series A no. 232-C), because here the applicants ’ complaint is not that the domestic law makes no provision for the recognition of the transsexual ’ s change of identity, but rather that it is not possible for such a person to be registered as the father of a child; indeed, it is for this reason that the Court is examining this case in relation to family, rather than private, life (see paragraph 37 above).",
"43. It is true that the Court has held in the past that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible, from the moment of birth or as soon as practicable thereafter, the child ’ s integration in his family (see for example the above-mentioned Marckx judgment, p. 15, para. 31; the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 29, para. 72; the above-mentioned Keegan judgment, p. 19, para. 50; and the above-mentioned Kroon and Others judgment, p. 56, para. 32). However, hitherto in this context it has been called upon to consider only family ties existing between biological parents and their offspring. The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual.",
"44. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. In addition, it has not been established before the Court that there exists any generally shared approach amongst the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law. Indeed, according to the information available to the Court, although the technology of medically assisted procreation has been available in Europe for several decades, many of the issues to which it gives rise, particularly with regard to the question of filiation, remain the subject of debate. For example, there is no consensus amongst the member States of the Council of Europe on the question whether the interests of a child conceived in such a way are best served by preserving the anonymity of the donor of the sperm or whether the child should have the right to know the donor ’ s identity.",
"Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation (see, mutatis mutandis, the above mentioned Rees judgment, p. 15, para. 37, and the above-mentioned Cossey judgment, p. 16, para. 40).",
"3. Whether a fair balance was struck in the instant case",
"45. The applicants, with whom the Commission agreed, argued that a number of consequences flowed from the lack of legal recognition of X ’ s role as father. Perhaps most importantly, the child ’ s sense of security within the family might be undermined. Furthermore, the absence of X ’ s name on her birth certificate might cause distress on those occasions when a full-length certificate had to be produced, for example on registration with a doctor or school, if an insurance policy was taken out on her life or when she applied for a passport. Although Z was a British citizen by birth and could trace connection through her mother in immigration and nationality matters, problems could still arise if X sought to work abroad. For example, he had already had to turn down an offer of employment in Botswana because he had been informed that Y and Z would not have been recognised as his \"dependants\" and would not, therefore, have been entitled to receive certain benefits (see paragraph 19 above). Moreover, in contrast to the position where a parent-child relationship was recognised by law, Z could not inherit from X on intestacy or succeed to certain tenancies on X ’ s death. The possibility of X obtaining a residence order in respect of Z (see paragraph 27 above) did not satisfy the requirement of respect, since this would entail the incurring of legal expense and an investigation by a court welfare officer which might distress the child.",
"In their submission, it was apparent that the legal recognition sought would not interfere with the rights of others or require any fundamental reorganisation of the United Kingdom system of registration of births, since the Human Fertility and Embryology Act 1990 allowed a man who was not a transsexual to be registered as the father of a child born to his female partner by AID (see paragraph 21 above).",
"46. The Government pointed out that the applicants were not restrained in any way from living together as a \"family\" and they asserted that the concerns expressed by them were highly theoretical. Furthermore, X and Y could jointly apply for a residence order, conferring on them parental rights and duties in relation to Z (see paragraph 27 above).",
"47. First, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront. In this respect, the Court notes that, whilst it has not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by AID in general, it is not clear that it would necessarily be to the advantage of such children.",
"In these circumstances, the Court considers that the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have undesirable or unforeseen ramifications for children in Z ’ s position. Furthermore, such an amendment might have implications in other areas of family law. For example, the law might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a \"father\" in law while still being treated for other legal purposes as female and capable of contracting marriage to a man.",
"48. Against these general interests, the Court must weigh the disadvantages suffered by the applicants as a result of the refusal to recognise X in law as Z ’ s \"father\".",
"The applicants identify a number of legal consequences flowing from this lack of recognition (see paragraph 45 above). For example, they point to the fact that if X were to die intestate, Z would have no automatic right of inheritance. The Court notes, however, that the problem could be solved in practice if X were to make a will. No evidence has been adduced to show that X is the beneficiary of any transmissible tenancies of the type referred to; similarly, since Z is a British citizen by birth and can trace connection through her mother in immigration and nationality matters, she will not be disadvantaged in this respect by the lack of a legal relationship with X.",
"The Court considers, therefore, that these legal consequences would be unlikely to cause undue hardship given the facts of the present case.",
"49. In addition, the applicants claimed that Z might suffer various social or developmental difficulties. Thus, it was argued that she would be caused distress on those occasions when it was necessary to produce her birth certificate.",
"In relation to the absence of X ’ s name on the birth certificate, the Court notes, first, that unless X and Y choose to make such information public, neither the child nor any third party will know that this absence is a consequence of the fact that X was born female. It follows that the applicants are in a similar position to any other family where, for whatever reason, the person who performs the role of the child ’ s \"father\" is not registered as such. The Court does not find it established that any particular stigma still attaches to children or families in such circumstances.",
"Secondly, the Court recalls that in the United Kingdom a birth certificate is not in common use for administrative or identification purposes and that there are few occasions when it is necessary to produce a full length certificate (see paragraph 24 above).",
"50. The applicants were also concerned, more generally, that Z ’ s sense of personal identity and security within her family would be affected by the lack of legal recognition of X as father.",
"In this respect, the Court notes that X is not prevented in any way from acting as Z ’ s father in the social sense. Thus, for example, he lives with her, providing emotional and financial support to her and Y, and he is free to describe himself to her and others as her \"father\" and to give her his surname (see paragraph 24 above). Furthermore, together with Y, he could apply for a joint residence order in respect of Z, which would automatically confer on them full parental responsibility for her in English law (see paragraph 27 above).",
"51. It is impossible to predict the extent to which the absence of a legal connection between X and Z will affect the latter ’ s development. As previously mentioned, at the present time there is uncertainty with regard to how the interests of children in Z ’ s position can best be protected (see paragraph 44 above) and the Court should not adopt or impose any single viewpoint.",
"52. In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 (art. 8) cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision (art. 8).",
"It follows that there has been no violation of Article 8 of the Convention (art. 8).",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)",
"53. In addition, the applicants complained of discrimination contrary to Article 14 of the Convention (art. 14), which provides:",
"\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"",
"54. The applicants did not develop this complaint in their memorial, since they adopted the findings of the Commission (see paragraph 55 below). However, at the hearing before the Court, their counsel referred in particular to the fact that had X been born a man he could have been registered as Z ’ s father under the provisions of the Human Fertility and Embryology Act 1990 (see paragraph 21 above).",
"55. The Government submitted that no separate issue arose in connection with Article 14 (art. 14). In view of its finding of a violation of Article 8 of the Convention (art. 8), the Commission did not find it necessary to examine this complaint.",
"56. The Court considers that the complaint under Article 14 (art. 14) is tantamount to a restatement of the complaint under Article 8 (art. 8), and raises no separate issue. In view of its finding in respect of the latter provision (art. 8) (see paragraph 52 above), there is no need to examine the issue again in the context of Article 14 (art. 14).",
"Accordingly, it is not necessary to consider this complaint."
] |
69 | Mizzi v. Malta | 12 January 2006 | In 1966, the applicant’s wife became pregnant. The following year, the couple separated. The applicant, under Maltese law, was automatically considered to be the father of the child born in the meantime and was registered as her natural father. Following a DNA test which, according to the applicant, established that he was not the child’s father, he tried unsuccessfully to bring civil proceedings to repudiate his paternity of the child. The applicant complained that he had been denied access to a court and that the irrefutable presumption of paternity applied in his case had amounted to a disproportionate interference with his right for respect of private and family life. He also complained that he had suffered discrimination, because other parties with an interest in establishing paternity in the case had not been subject to the same strict conditions and time limits. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the practical impossibility for the applicant to deny his paternity from the day the child was born until the present day had impaired, in essence, his right of access to a court. It further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, considering that a fair balance had not been struck between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. Lastly, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 6 and 8 of the Convention: observing that in bringing an action to contest his paternity the applicant had been subject to time-limits which did not apply to other “interested parties”, it found that the rigid application of the time-limit along with the Maltese Constitutional Court’s refusal to allow an exception had deprived the applicant of the exercise of his rights guaranteed by Articles 6 and 8 which had been and still were, on the contrary, enjoyed by the other interested parties. | Parental Rights | Filiation | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicant was born in 1936 and lives in Bidnija ( Malta ).",
"A. The background of the case",
"9. The applicant is a well-known businessman in Malta. On 29 December 1963 he married a Maltese national, X, in a Catholic ceremony. In 1966 X became pregnant; at that time she was still living together with the applicant, who was aware of the pregnancy. In March 1967 the applicant and X separated and stopped living together. On 4 July 1967 X gave birth to a child, Y.",
"10. The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, although such a test would not have been conclusive under Maltese law, which did not allow him to institute an action to rebut the legal presumption that he was Y ’ s father. He was registered as the natural father of the child.",
"11. A few months after Y ’ s birth, X refused to carry out the blood test. This behaviour intensified the applicant ’ s suspicions regarding the child ’ s paternity. He alleged that he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the age of majority, he had no relationship with her. This is disputed by Y (see “D. The statements by Y and by the applicant” below ).",
"12. The applicant legally separated from X on 2 March 1968 by means of a contract of voluntary separation. Subsequently the marriage was annulled by a decree of the Court of Appeal of the Vicariate of the City of Rome on 24 April 1972.",
"13. According to the applicant ’ s version of events, on an unspecified date after 199 3 Y contacted him and volunteered to undergo a blood test. Scientific examinations were carried out in Switzerland and concluded that the applicant was not Y ’ s biological father. However, in a written statement attached to the Government ’ s observations on the merits, Y declared that the DNA test had been carried out in 1990 and not in 1993. She further stated that the results of this test had never been shown to her.",
"B. The constitutional proceedings before the Civil Court",
"14. On 1 November 1996 the applicant lodged an application with the Civil Court ( First Hall ), seeking a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action for disavowal of paternity.",
"15. The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts. He considered that the lack of any remedy in that respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and Others v. the Netherlands (judgment of 27 October 1994, Series A no. 297-C).",
"16. In submissions filed with the Civil Court the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his right of access to a court and his right not to be discriminated against vis-à-vis the mother of the child, the child herself or any third parties who, unlike the betrayed husband, were free to deny legitimacy without being subject to any time-limit.",
"17. In a judgment of 30 May 1997 the Civil Court allowed the applicant ’ s application. It observed that Articles 70 and 73 of the Civil Code had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter. Therefore, there had been a violation of Article 8 of the Convention.",
"18. The Civil Court considered that the status of father was intimately linked with private life. Therefore, laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by Article 8 of the Convention. It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption. In fact, under Article 70 of the Civil Code, as in force at the relevant time, the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception. Moreover, the husband could not repudiate a child on the ground of adultery, except where the birth had been concealed from him. As the applicant had been cohabiting with X at the time of Y ’ s conception and had been aware of her birth, no action for disavowal could have been brought within the period of three months from the date of the birth as set forth in the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that under the new Article 70 § 1 (d), the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence, including genetic tests, ruling out his paternity of the child. However, under Article 73 of the Civil Code, such an action should have been brought within six months from the date of the birth, and by 1993 that period had already expired.",
"19. In the Civil Court ’ s view, such interference could not be justified in terms of paragraph 2 of Article 8 of the Convention. It emphasised that in the case of Kroon and Others v. the Netherlands the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights relied on by the applicant had also been infringed.",
"C. The proceedings before the Constitutional Court",
"20. The Attorney General appealed against the judgment of 30 May 1997 to the Constitutional Court. A third - party appeal was also lodged by Y.",
"21. In a judgment of 15 January 2002 the Constitutional Court allowed the appeals by the Attorney General and Y and set aside the impugned judgment.",
"22. It observed that even before the 1993 amendments the Civil Code had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not. In fact, Article 73 of the Code simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity, the presence of another element being necessary, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had been established could the “father” produce other evidence, including scientific material. The reason for this limitation of the husband ’ s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy, summed up by the presumption “ pater is est quem iustae nuptiae demonstrant ”. The ratio legis remained the same even after the 1993 amendments, which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone merely constituted evidence corroborating other elements, and they had never been sufficient and decisive to disavow paternity, the husband being obliged to prove the adultery or the concealment of the birth.",
"23. The Constitutional Court noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof, independently of any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, whose results were apparently ascertainable and accessible, could be the most conclusive; however, in the Constitutional Court ’ s view, this was not a good reason to exclude certainty reached by means of other evidence.",
"24. The Constitutional Court examined whether the domestic law had struck a fair balance between the husband ’ s right to know whether or not he was the child ’ s father and the interests of the child in enjoying certainty as to his or her legal status. It considered that according to today ’ s social trends, the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy. The issue raised by the applicant concerned a conflict between factual reality and legal certainty, a matter which was the subject of debate in many other countries. The Constitutional Court noted that the Kroon and Others judgment did not deny a margin of appreciation to the State authorities and that the European Court had not made a statement on the conformity of the provisions of Dutch law with the Convention, preferring to rule solely on the particular circumstances of the case before it. The contested judgment had simply followed the position taken in the Kroon and Others judgment, the facts of which, however, were completely different from those of the present case, in which both X and Y disagreed with the action taken by the applicant and the “social reality” enjoyed by Y corresponded to her birth certificate.",
"25. The Constitutional Court moreover pointed out that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87) the Court had considered that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child, and had consequently found no violation of Article 8 of the Convention. That approach had subsequently been confirmed by the European Commission of Human Rights in the cases of B.H. v. Austria (application no. 19345/92, decision of 14 October 1992) and M.B. v. the United Kingdom, concerning the refusal to order a blood test (application no. 22920/93, decision of 6 April 1994), as well as by the Court in the case of Yildirim v. Austria ( (dec.), no. 34308/96, 19 October 1999).",
"26. In the light of the above, the Constitutional Court considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of society. This vindicated the right of the State to impose, within its margin of appreciation, certain limits on the use of an action to deny paternity, which the Constitutional Court could review only if they amounted to serious interference with the husband ’ s fundamental rights.",
"27. The Constitutional Court finally observed that the ideal situation was one in which legal certainty corresponded to factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator ’ s scrutiny to be refined and updated as and when necessary, taking into account developments in science, changes in the family and social trends.",
"D. The statements by Y and by the applicant",
"28. Attached to their observations on the merits, the Government produced a statement by Y, in which she declared that she had used the applicant ’ s name for thirty-seven years and would like to continue to do so for the rest of her life. Y also stated that the applicant used to visit her during the first year of her life; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses. Y had been invited several times to parties at the applicant ’ s house and on one occasion she had been asked to go upstairs to greet the applicant ’ s father. On another occasion, Y had played tennis with the applicant at his private house in Bidnija. At some point between 1990 and 1996 the applicant had invited Y and her son to spend a day at his house by the pool. On that occasion, he had given her son a present.",
"29. Y declared that she had undergone the blood test in March 1990 at the applicant ’ s request. At that time she had had no doubt that the applicant was her father. Her intentions were based on purely emotional factors and not on financial considerations. Y alleged that she did not believe the applicant ’ s statement that she was not his daughter and added that she had never been shown the results of the DNA test. She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter. The reasons behind the applicant ’ s legal actions were probably of a merely financial nature. The allegations made in court had caused Y further suffering.",
"30. In response to Y ’ s arguments, the applicant produced a written statement in which he declared that, having suspected that his wife was having affairs during their marriage, he had not been happy when he had been informed that X was pregnant. The applicant had separated from X several months before Y ’ s birth and had been informed of the birth a few weeks after it had happened. The applicant had not wanted to sign the declaration of birth and had delayed the matter for months. He had eventually been incorrectly led to believe that as the presumed father, he was the only person who could declare the birth; moreover, pressure had been put on him by X and her father, who had promised that a blood test would be carried out. The applicant had asked whether the blood test could be included as a condition in the contract of separation, but he had abandoned that idea in order not to damage X ’ s reputation. Four months after the signature of the contract of separation, the applicant had been informed that X had changed her mind as to the blood test. He had therefore declared that he would not regard Y as his own daughter.",
"31. The applicant had included access rights in the separation contract and had actually visited Y during the first year of her life because he had not been sure about the results of the blood test. However, he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home. The applicant had not seen Y again until she was about twenty years old, when a friend of his had brought her to one of his parties without informing him beforehand. There had been around one hundred guests at the party. The applicant had not recognised Y on that occasion. She had come to parties organised by the applicant three or four more times, always as an uninvited guest. The applicant did not remember whether he had invited her to greet his father, but pointed out that it had been common for his guests to visit his father, who was living with him.",
"32. The applicant submitted that he had shown the results of the blood tests to Y; however, he had kept the documents for himself. He would have given her a copy had she so requested.",
"33. On one occasion, “as a matter of courtesy”, the applicant had invited Y for lunch. Y had asked whether she could bring her son and the applicant had replied that that was possible. On that occasion, the applicant and Y had discussed Y ’ s real father ’ s identity.",
"34. The applicant had not seen Y again after this lunch. She had never been treated as a granddaughter by the applicant ’ s parents and the members of the applicant ’ s family had not had any direct contact with her. She had never attended family parties or family funerals and had not been given the applicant ’ s deceased mother ’ s jewellery (as would be customary in Malta if she were the applicant ’ s daughter). The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him. They had seen each other a few times in nearly thirty years and always in the company of third persons. Y had never called the applicant “ dad ”.",
"35. The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it. The applicant had also felt obliged to contribute to Y ’ s marriage expenses, but had not been invited to the wedding."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. The action for disavowal brought by the husband",
"36. Before the 1993 amendments, the relevant Articles of the Maltese Civil Code read as follows:",
"Article 67",
"“A child conceived in wedlock is held to be the child of the mother ’ s husband. ”",
"Article 70",
"“The husband can repudiate a child conceived in wedlock",
"(a) if he proves that during the time from the three hundredth day to the one - hundred - and - eightieth day before the birth of the child, he was in the physical impossibility of cohabiting with his wife on account of his being away from her, or some other accident; or",
"(b) if he proves that during the said time he was legally separated from his wife ...”",
"Article 72 § 1",
"“The husband may not repudiate a child on the ground of adultery, except where the birth shall have been concealed from him, in which case he shall be allowed to prove, even in the action for disavowal, both the adultery and the concealment, as well as all other circumstances tending to show that he is not the father of the child ...”",
"Article 73",
"“Where it is competent to the husband to bring an action to disown a child, he must bring such action",
"(a) within three months from the day of the birth, if he was then in Malta;",
"(b) within three months of his return to Malta, if he was absent at the time of the birth;",
"(c) within three months of the discovery of the fraud, if the birth was concealed from him ...”",
"37. From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the Civil Code. In particular, to the cases in which the husband may repudiate a child conceived in wedlock was added the following (Article 70 § 1 (d) of the Civil Code):",
"“if he proves that during the ... time [from the three hundredth day to the one hundred and eightieth day before the birth of the child] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child, and further produces evidence of any other fact (which may also be genetic and scientific tests and data) that tends to exclude such paternity. ”",
"38. Moreover, the periods set down in Article 73 of the Civil Code were raised to six months.",
"B. Impeachment of the legitimacy of a child by other persons",
"39. By Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that, during the time from the three hundredth day to the one hundred and eightieth day before the birth of the child, it was physically impossible for the husband to have been cohabiting with his wife. This action is not subject to any time-limit.",
"40. According to the case-law of the domestic courts, a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in the case of Antonio Scerri Gauci v. Dr G. Scicluna ).",
"C. The inheritance and maintenance rights of legitimate children",
"41. By Articles 616 and 620 of the Civil Code, the applicant ’ s daughter is entitled, as a legitimate descendant, to inherit at least one - third of the applicant ’ s estate, which is due in full ownership and cannot be encumbered by any burden or condition. As a consequence of the amendments introduced in the Civil Code by Act XVIII of 2004, which entered into force on 1 March 2005, if the applicant dies without having made a will or if his will is declared invalid for any reason, Y, as his only child, will be entitled to his entire estate.",
"42. Until the child ’ reached the age of majority, the applicant was obliged to provide maintenance for his daughter. Should the latter in future become unable to maintain herself, alone or with the help of her husband and children, the applicant would once again become liable to the obligation of maintenance.",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS",
"43. In their observations of 29 March 2005 on the merits the Government submitted that the application was out of time, that the applicant ’ s complaints under Articles 6 and 14 of the Convention had not been properly brought before the domestic courts, that the applicant had failed to adduce evidence showing his interest in the case and that he could not claim to be a “victim”, within the meaning of Article 34 of the Convention, of the facts complained of.",
"44. The Government alleged, in particular, that the applicant should have lodged his application within six months from 30 April 1987, the date of the entry into force of the European Convention Act. Moreover, the applicant had carried out acts which were incompatible with the wish to disavow Y. He had acknowledged that he was the father of the child born of his wife and had agreed to have access rights and to pay his former wife a monthly sum “for their common daughter”.",
"45. The applicant challenged the Government ’ s arguments. He alleged that the situation complained of was a continuing one, that the application had been lodged within six months from the date of the delivery of the final domestic decision, that he had raised all his complaints in substance before the domestic courts and that by reason of a legal presumption the authorities had been obliged to enter his name on Y ’ s birth certificate. Furthermore, he considered it “surprising” that these objections had not been raised by the Government in their main submissions on the admissibility and merits of the case.",
"46. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted under Rule 51 or 54, as the case may be (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X ). In the present case, in their written observations at the admissibility stage the Government objected that the applicant had lodged his constitutional application more than six months after the adoption of the 1993 amendments and that he had failed to bring an action to determine the paternity of Y. In its decision of 9 December 2004 on admissibility the Court held that the final decision, within the meaning of Article 35 § 1 of the Convention, was the Constitutional Court ’ s judgment of 15 January 2002. It therefore considered that the application could not be rejected as being out of time. It moreover held that the accessibility and effectiveness of an action to determine paternity was linked to the substance of the applicant ’ s complaint under Article 6 § 1 of the Convention.",
"47. The Court notes that the pleas of inadmissibility put forward in the observations of 29 March 2005 on the merits were not made by the Government in their written statements before the adoption of the decision of 9 December 2004. These new submissions referred to events that had occurred before the application was lodged with the Court. There are no exceptional circumstances which would have absolved the Government from the obligation to raise all their preliminary objections before the Court ’ s decision as to the admissibility of the application (see Prokopovich v. Russia, no. 58255/00, § 29, 18 November 2004 ).",
"48. Consequently, the Government are estopped from raising the preliminary objections set out in their observations of 29 March 2005 at the present stage of the proceedings. The Government ’ s objections must therefore be dismissed.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"49. The applicant submitted that he had not been able to have his action for disavowal of paternity examined by a domestic tribunal. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides :",
"“1. In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”",
"A. The parties ’ submissions",
"1. The Government",
"50. The Government first submitted that Article 6 was not applicable to the facts of the present case. They alleged that this provision only covered disputes over rights which existed at domestic level. However, the applicant, who had not been separated from his wife and had known about the birth of Y, did not have any right to disavow his paternity of the child. The Government referred, on this point, to the cases of Nylund v. Finland ( (dec.), no. 27110/95, ECHR 1999 -VI ) and Yildirim v. Austria ( (dec.), no. 34308/96, 19 October 1999 ).",
"51. The Government furthermore observed that the applicant had never filed any case in Malta to determine the paternity of Y. He could not therefore claim that he had been denied access to a court in respect of such an action. The applicant had merely lodged a constitutional application on 1 November 1996, more than three years after the enactment of the 1993 amendments and more than six months after the date on which Y had agreed to undergo the DNA test.",
"52. The Government noted that the “concealment of birth” requirement was a measure that favoured legitimacy and the stability of the family and maintained a proper balance between various rights in cases such as the present one in which the husband chose to continue cohabitating and having relations with the wife despite his knowledge that the wife was having other relationships. In such circumstances, it was proportionate to provide that the husband should accept children whom he might not have fathered as his own. In the Government ’ s view, the effects of the concealment requirement were very similar to those of the “doctrine of acknowledgment” under Danish law, as examined by the Court in the case of Rasmussen v. Denmark ( cited above ).",
"53. Under Maltese law, adultery was a ground for separation, which could have been proved by any means. Had the applicant sought a separation from his wife, he could have done so at any time, even after the birth of Y. In the event of refusal to undergo blood tests to determine paternity, the domestic court would have taken this factor into account and considered it to be an indication of adultery. However, the applicant had chosen a completely different course of action: he had acknowledged the child and signed a contract of consensual separation with X, in which adultery was not mentioned.",
"54. Moreover, the concealment requirement was not relevant in the applicant ’ s case: even if such a requirement was not provided for by law, an action for disavowal would have had little prospect of success, as the applicant did not have any proof of his wife ’ s adultery or – before the DNA test – of the fact that Y had not been fathered by him. Consequently, the applicant was affected only by the fact that the law fixed a time-limit for bringing an action to deny paternity and required proof of adultery before admitting scientific evidence.",
"55. The Government emphasised that in the domestic proceedings the applicant had failed to produce the DNA test or any evidence of X ’ s adultery. In the absence of any proof of the factual basis of his allegations, he could not be considered a victim of the facts complained of.",
"56. In any case, there were good reasons for establishing a legal presumption that a child born or conceived in wedlock was the offspring of the husband, for requiring certain preconditions before admitting evidence in rebuttal and for subjecting an action for disavowal to time-limits.",
"57. In relation to the latter point, the Government observed that in the case of Rasmussen v. Denmark ( cited above ) the Court had accepted such time-limits, which were provided for by practically all European countries ’ legislation on the matter, in order to protect the children ’ s right to legal certainty as to their status.",
"58. Furthermore, it should be taken into account that when Y was born, DNA testing had not been available. The only available test at the time had been the ABO blood grouping test, which could in some cases definitely rule out paternity, but left the matter open in most cases. It would be unreasonable to reopen settled issues of paternity every time a new scientific test was developed.",
"59. In the Government ’ s opinion, the three - month limitation period – which had recently been extended to six months – was not unreasonably short. In fact, the law took into account the fact that both infidelity and reconciliation after adultery were not uncommon. It was therefore wise to rule out the possibility of an action for disavowal being brought at any time when the spouses might have had a fight. In order to avoid “conditional reconciliations”, Maltese law had chosen to give to the husband a limited time to decide whether to forgive his wife and forget his doubts as to the paternity of his children.",
"60. Finally, as jealousy was a recurring theme in life, the Maltese legislator had protected wives and their children from the antics of jealous husbands or fathers. In particular, before 1993 the husband had been required to prove both the adultery and the concealment of birth before adducing other evidence (including scientific tests ) showing that a child born in wedlock was not his. After 1993, he had been required to prove either adultery or concealment in order to be allowed to produce other evidence. The more rigid requirements before 1993 had been attributable to the fact that scientific tests at that time had been less reliable.",
"61. In view of the foregoing, the Government concluded that the preconditions for bringing an action for disavowal were necessary and acceptable limitations on the right of access to a tribunal. They referred to the case of Mikulić v. Croatia (no. 53176/99, ECHR 2002-I ), in which the Court had concluded that leaving a child born on 25 November 1996 in a state of prolonged uncertainty as to her personal identity constituted a failure to secure her right to respect for her private life.",
"2. The applicant",
"62. In the applicant ’ s submission, the concealment requirement and the limitation period under the relevant provisions of the Civil Code constituted an unjustified and disproportionate interference with his right of access to a court.",
"63. He observed that he had brought proceedings before the Civil Court, seeking a declaration that those legal limitations were contrary to Articles 6, 8 and 14 of the Convention. He had also sought a declaration that he had a right to proceed with an action for disavowal of paternity notwithstanding the limits laid down in the Civil Code.",
"64. As to the Government ’ s argument that he could not claim to be the victim of the alleged violations as no evidence of the wife ’ s adultery or of the DNA test had been adduced, the applicant noted that his complaint in Strasbourg concerned the preconditions for bringing an action for denial of paternity in the domestic legal system. He therefore submitted that for the purposes of the present application there was no need for the Court to consider evidence of paternity or adultery.",
"65. The applicant observed that the Government had acknowledged, in substance, that the six - month limitation period for bringing an action for disavowal and the concealment requirement were prima facie interferences with his right to access to court. However, the Government had failed to provide adequate justification satisfying the test of proportionality under Article 6 of the Convention.",
"66. In the first place, the Government had not explained why an absolute six - month requirement, allowing for no exceptions, was needed. After the 1993 amendments, it was that time-limit which had prevented the applicant, who was able to comply with the substantive requirements of an action for disavowal, from bringing his case before a court.",
"67. The applicant submitted that in the case of Mikulić v. Croatia, cited by the Government, the Court had emphasised the importance, for a child, of the elimination of uncertainty as to the identity of her natural father. It was, however, similarly important for the applicant that the erroneous legal presumption that he was Y ’ s father should be eliminated.",
"68. The delay in challenging paternity had not been due to the applicant ’ s lack of action, but to the operation of the concealment requirement, which until 1993, would have been an obstacle to any action for disavowal. When the law had been amended and the requirement in question was removed, the inflexible six-month time-limit had prevented the applicant from instituting court proceedings. Against this background, the fact that he had waited until 1 November 1996 to lodge his constitutional application was irrelevant.",
"69. The applicant considered that the reasons advanced by the Government in order to justify the concealment requirement were not convincing. It had not been explained, in particular, why before 1993 it had been necessary to prove not only the wife ’ s adultery but also the concealment of the birth. This requirement had prevented a husband who had evidence of his wife ’ s adultery from instituting proceedings to deny paternity where there was still common marital life or where the wife had decided to reveal the birth. This rendered an action for disavowal practically impossible in many cases and overlooked the role played in children ’ s life by the biological father. Nor had the Government explained why proof of adultery, where properly established, was not sufficient to protect wives and children from groundless allegations. Furthermore, there was no valid reason why the Maltese courts did not have the power to compel the parties to undergo blood tests to establish paternity. It was also to be noted that the power to invite the parties to undergo such tests and to draw inferences from any refusal had been introduced only with the 1993 amendments. It was therefore a course of action which had never been open to the applicant.",
"70. The applicant also submitted that his case was distinguishable from those of Nylund v. Finland and Yildirim v. Austria, cited by the Government in support of their claim that Article 6 was not applicable. Unlike Mr Nylund, the applicant would have had, under domestic law, a right to disavow his paternity of the child had the concealment requirement and the six-month time-limit not existed. As to Mr Yildirim, the latter had had the possibility, not impaired by any concealment requirement, of bringing an action to deny paternity within one year from the birth of his child, but had omitted to do so.",
"B. The Court ’ s assessment",
"1. Applicability of Article 6 § 1 of the Convention",
"71. The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy ( no. 1), no. 40877/98, § 48, ECHR 2003-I ). This right extends only to disputes (“ contestations ”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2507, § 34).",
"72. In the present case, the applicant wished to bring an action for disavowal with regard to Y, his wife ’ s daughter. Under the relevant domestic provisions, a husband could repudiate a child conceived in wedlock under certain circumstances, which were listed in Articles 70 and 72 of the Maltese Civil Code. According to the latter provision, an action for disavowal was admissible if the husband could prove both the adultery of his wife and the concealment of the birth, as well as any other circumstances tending to show that he was not the father of the child (see paragraph 36 above).",
"73. It is not contested that the birth of Y was not concealed from the applicant. However, the relevant Maltese law was amended in 1993. Under the new rules ( Article 70 § 1 (d) of the Civil Code), evidence of adultery and of any other fact tending to rule out paternity was sufficient to bring an action for disavowal (see paragraph 37 above).",
"74. In the light of the above, the Court considers not only that the domestic legal system allowed a husband to deny paternity of the offspring of his wife, but also that after the 1993 amendments a person in the applicant ’ s situation was, in principle, capable of bringing such an action with reasonable prospects of success. In the Court ’ s view, the fact that a time-limit precluded the applicant from benefiting from the 1993 amendments did not impair the actual existence of the right in the domestic legal system. Such a time-limit was only a procedural precondition for having access to the domestic courts.",
"75. The present case is therefore distinguishable from those of Nylund (cited above), in which the Court found that the domestic law did not provide for any “right to have mere biological paternity examined by scientific methods ”, and Yildirim (cited above), in which the domestic law did not confer on a husband a right to have an action contesting legitimacy brought by the public prosecutor.",
"76. In the Court ’ s view, having regard to the scientific evidence obtained in Switzerland (see paragraph 13 above), it cannot be said that the applicant ’ s allegations that he was not the biological father of Y were manifestly devoid of substance. Under these circumstances, the Court considers that the right claimed by the applicant to deny paternity was at least arguable and that the dispute that he wished to bring before the domestic courts, which was directly decisive for this right, was genuine and serious. Finally, the Court reiterates that an action contesting paternity is a matter of family law; on that account alone, it is “civil” in character (see Rasmussen, cited above, pp. 12-13, § 32).",
"77. It follows that Article 6 of the Convention applies to the facts of the present case. It remains to be ascertained whether there was an interference with the applicant ’ s right to bring an action for disavowal before the domestic courts.",
"Whether there was an interference with the applicant ’ s right of access to a court",
"78. The Court notes that at the time of Y ’ s birth, any action which the applicant could have brought in order to deny paternity would have had little prospect of success, as he would not have been able to prove one of the elements required by former Article 72 § 1 of the Civil Code, namely that the birth of the child had been concealed from him. After the 1993 amendments, when, as noted above, the concealment requirement became only one of the alternative preconditions for bringing such an action, the applicant was time-barred from raising his claim before a court. In fact, in accordance with Article 73(a) of the Civil Code, a husband wishing to disavow a child had to bring his judicial claim within six months from the date of the birth (see paragraphs 36 and 38 above). As Y was born on 4 July 1967, by 1993 this period had expired.",
"79. It is true that the applicant was able to lodge an application with the Civil Court, seeking a declaration that notwithstanding the provisions of the Civil Code, he had a right to proceed with an action for disavowal of paternity (see paragraphs 14-19).",
"80. However, it is to be recalled that the Civil Court ’ s decision in his favour was set aside by the Constitutional Court (see paragraphs 20-27 above), and that a degree of access to a court limited to the right to ask a preliminary question cannot be considered sufficient to secure the applicant ’ s “right to a court”, having regard to the rule of law in a democratic society (see Cordova, cited above, § 52, and, mutatis mutandis, Waite and Kennedy v. Germany [GC], no. 26083/94, § 58, ECHR 1999-I). In this connection, it should be borne in mind that, in order for the right of access to be effective, an individual must have a clear and practical opportunity to challenge an act interfering with his rights (see De Jorio v. Italy, no. 73936/01, § 45, 3 June 2004, and Bellet v. France, judgment of 4 December 1995, Series A no. 333-B, p. 42, § 36). In the present case, as a result of the wording of the relevant provisions of the Civil Code coupled with the Constitutional Court ’ s refusal to grant the applicant leave to bring an action for disavowal, Mr Mizzi was deprived of the possibility of obtaining a judicial determination of his claim that he was not Y ’ s biological father.",
"81. In these circumstances, the Court considers that there has been an interference with the applicant ’ s right of access to a court.",
"82. This right is not absolute, but may be subject to implied limitations. Nonetheless, such limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Cordova, cited above, § 54; Khalfaoui v. France, no. 34791/97, §§ 35-36, ECHR 1999-IX; and Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also a recapitulation of the relevant principles in Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, § 65).",
"3. Aim of the interference",
"83. The Court reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty ( see Pérez de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 45, and Miragall Escolano and Others v. Spain, no. 38366/97, § 33, CEDH 2000-I ). Furthermore, they may protect the interests of the child, who has a right to have his or her uncertainty as to his or her personal identity eliminated without unnecessary delay (see Rasmussen, cited above, p. 15, § 41, and Mikulić, cited above, § 65 ).",
"84. The aim pursued by the concealment requirement is less apparent. However, the Court is prepared to accept as a starting - point for its analysis that it might have served interests similar to those protected by the statutory time-limit.",
"85. It remains to be determined whether the consequences for the applicant were proportionate to the legitimate aims pursued.",
"4. Proportionality of the interference",
"86. The Court observes that it must assess the contested interference with the right of access to a court in the light of the particular circumstances of the case (see Waite and Kennedy, cited above, § 64 ). It reiterates in this connection that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 24 ). In particular, it is not the Court ’ s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention ( see Cordova, cited above, § 57 ).",
"87. As observed above (see paragraphs 78-80 ), in the present case the applicant never had the possibility, with reasonable prospects of success, of bringing an action for disavowal. Until 1993 he was prevented from doing so by the concealment requirement, whereas after the 1993 amendments any such judicial claim would have been time-barred.",
"88. The Court has already accepted that under certain circumstances, the institution of time-limits for bringing an action for disavowal may serve the interests of legal certainty and the interests of the children (see Rasmussen, cited above, p. 15, § 41). Therefore, the consequent limitations on the presumed father ’ s right of access to a court are not, as such, incompatible with the Convention.",
"89. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Osu v. Italy, no. 36534/97, § 32, 11 July 2002 ). The Court is of the opinion that in the present case the practical impossibility of denying paternity from the date of Y ’ s birth until the present day has impaired the essence of the applicant ’ s right to a court. Therefore, the interference complained of has put an excessive burden on the applicant, failing to strike a fair balance between the latter ’ s legitimate interest in obtaining a judicial ruling as to his presumed paternity and the protection of legal certainty and of the interests of the other persons involved in his case.",
"90. The Court emphasises that the above finding does not conflict with the conclusions reached in the case of Mikulić v. Croatia, cited by the Government. It notes that Ms Mikulić, a child born out of wedlock, wished to obtain a judicial decision with regard to her real father ’ s identity. However, her judicial claim was not decided within a reasonable time. In the absence of procedural measures to compel the presumed father to undergo a DNA test and of alternative means enabling an independent authority to determine the paternity claim speedily, the Court found that there had been a violation of Ms Mikulić ’ s right to have her uncertainty as to her personal identity eliminated without unnecessary delay (see Mikulić, cited above, §§ 56-66). The position of Ms Mikulić is therefore not comparable to that of Y, a child born in wedlock who did not wish to institute court proceedings to determine her real father ’ s identity and whose status as a legitimate child could never be successfully challenged by the applicant.",
"91. In the light of the foregoing, the Court finds that there has been a violation of the applicant ’ s right of access to a court as guaranteed by Article 6 § 1 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"92. The applicant alleged that the legal presumption of the husband ’ s paternity of the child, combined with the absence of any domestic remedy by which he could have challenged it, violated his right to respect for his private and family life, guaranteed by Article 8 of the Convention.",
"This provision reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. The parties ’ submissions",
"1. The Government",
"93. Referring to the Commission ’ s decisions in the cases of X v. the United Kingdom (no. 5269/71, Yearbook 15, pp. 564- 74, and no. 2991/64, Yearbook 15, pp. 478-500), the Government alleged that the relationship between the applicant and his 29 - year - old daughter did not constitute “family life”. They moreover observed that there had been no interference by the State with the applicant ’ s private life with X and Y. Mr Mizzi himself had declared that he had developed a friendship with Y and that he “hoped” that she was his daughter.",
"94. In the Government ’ s submission, the potential or rather theoretical reciprocal right of maintenance between the applicant and Y and the inheritance rights of the latter did not constitute interferences with the applicant ’ s private life, but only with his possessions. They therefore concerned family property and not family life.",
"95. The Government furthermore challenged the applicant ’ s argument that Article 8 guaranteed the right not to be compelled to establish relationships with other human beings. Such a right would deny the whole basis of the family. Moreover, the interests of society, of the child and of legal certainty might justify the establishment of a parental relationship with a person who was not the biological father. A legal presumption of this kind would be incompatible with the Convention only when, as in the case of Kroon and Others ( cited above ), it clashed with social reality and did not benefit anyone.",
"96. In the present case, Y had always enjoyed the “social reality” of being the applicant ’ s daughter and it would be detrimental to her to take away her identity and expel her from the applicant ’ s family.",
"97. In the light of the above, the Government submitted that, even assuming that Article 8 could apply to the facts of the present case, the interference complained of was provided by law and necessary in a democratic society to secure legal certainty and to protect the rights of others.",
"2. The applicant",
"98. The applicant alleged that the amendments introduced in the Civil Code in 1993 were aimed at protecting persons in a position comparable to his; however, no derogation was provided for in respect of the six - month time-limit set forth in Article 73 of the Civil Code, thus preventing him from instituting an action on the basis of adultery and scientific tests. The legislation in question had failed to ensure, in his case, that biological reality prevailed over the legal assumption of legitimacy, to which the Maltese legal system attributed disproportionate importance. Moreover, this legal assumption had serious financial consequences: even if not biologically related to the applicant, Y would inherit one - third of his estate and could not be treated less favourably than any other children that the applicant might have in future. Thus, the presumption of paternity had not only emotional but also financial consequences, which were disproportionate and extended substantially beyond the point at which Y ’ had reached the age of majority.",
"99. The applicant moreover observed that the case-law quoted by the Government in order to show that there was no family life between him and Y and that there had been no interference on the part of the State with his rights under Article 8 was not relevant. In that connection, he noted that he was not seeking to establish family life with a relative who might otherwise be considered independent, but to distance himself from a relationship which had been established by the Maltese Civil Code and which had existed since the birth of his presumed daughter.",
"100. In any case, the institution of paternity proceedings was clearly covered by Article 8 of the Convention. In fact, respect for private life, which was intended to mean the right to establish relationships with other human beings, should also comprise the right not to be compelled to establish such relationships. In the present case, the applicant had, against his wishes, been publicly compelled to be associated “with a woman with whom he ha[d] no biological or social relationship”.",
"101. In the applicant ’ s view, the Government had failed to explain how the requirements for bringing an action for disavowal were strictly necessary to meet a pressing social need. The recognition of biological reality would not cause Y any prejudice other than the loss of inheritance rights. She would not be “expelled” from the applicant ’ s family as she had never been part of it.",
"B. The Court ’ s assessment",
"1. Applicability of Article 8 of the Convention",
"102. The Court has already examined cases in which a husband wished to institute proceedings to contest the paternity of a child born in wedlock. In those cases the question was left open whether paternity proceedings aimed at the dissolution in law of existing family ties concerned the applicant ’ s “family life” because of the finding that, in any event, the determination of the father ’ s legal relations with his putative child concerned his “private life” ( see Yildirim, cited above, and Rasmussen, cited above, § 33).",
"103. In the instant case the applicant sought, by means of judicial proceedings, to rebut the legal presumption of his paternity of Y on the basis of biological evidence. The purpose of those proceedings was to determine his legal relationship with Y, who was registered as his daughter.",
"104. Accordingly, the facts of the case fall within the ambit of Article 8 of the Convention.",
"2. General principles",
"105. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in ensuring effective “respect” for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Mikulić, cited above, § 57).",
"106. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Kroon and Others, cited above, p. 56, § 31).",
"107. The Court reiterates that its task is not to substitute itself for the competent domestic authorities in regulating paternity disputes at national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Mikulić, cited above, § 59, and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). It will therefore examine whether the respondent State, in handling the applicant ’ s action for disavowal, has complied with its positive obligations under Article 8 of the Convention.",
"3. Compliance with Article 8 of the Convention",
"108. The applicant did not dispute that the impossibility of bringing an action for disavowal was “in accordance with the law”. Indeed, his complaint was based on the assumption that Articles 72 and 73 of the Civil Code, as in force before and after the 1993 amendments, prevented him from bringing any successful claim before the national courts. The Court has agreed in substance with this analysis and concluded that the wording of the relevant domestic provisions, coupled with the Constitutional Court ’ s refusal to grant leave to bring such an action, deprived the applicant of the possibility of obtaining a judicial determination of his claim that he was not Y ’ s biological father (see paragraphs 80 and 87 above).",
"109. The Court notes that the applicant and Y underwent a blood test in Switzerland in order to establish whether he was ‘ her biological father. According to the applicant, the results of this test showed that he was not Y ’ s father (see paragraph 13 above). However, the applicant never had the possibility of having the results of the test in question examined by a tribunal. It was only after the 1993 amendments that he would have had a right under domestic law to contest his paternity of Y on the basis of scientific evidence and proof of adultery had he lodged the action within six months after ‘ her birth.",
"110. The Court notes that the legal systems of the Contracting States have produced different solutions to the problem which arises when the requirements for substantiating a claim for disavowal are fulfilled only after the expiry of the prescribed period. In some States, in certain exceptional cases a court may grant leave to institute proceedings out of time ( see Rasmussen, cited above, § 24). In others the authority to do so is vested in the public prosecutor (see Yildirim, cited above).",
"111. In the applicant ’ s case, the only means of redress was apparently to lodge a constitutional application seeking a declaration that notwithstanding the provisions of the Civil Code, the husband had a right to proceed with an action for disavowal of paternity. The Government failed to indicate any other effective domestic remedies by which to obtain the reopening of the time allowed for bringing such an action. Had the Civil Court and the Constitutional Court accepted the application lodged by the applicant to that effect, they would have adequately secured his interests, as he had legitimate reasons to believe that Y might not be his daughter and wished to challenge in court the legal presumption that he was her father. However, his application was rejected and, as noted above, the applicant was never afforded the possibility of bringing, with reasonable prospects of success, an action aimed at rebutting the presumption in question.",
"112. The Court is not convinced by the Government ’ s argument that such a radical restriction of the applicant ’ s right to institute proceedings to deny paternity was “necessary in a democratic society”. In particular, it has not been shown why society as a whole would benefit from such a situation. The potential interest of Y in enjoying the “social reality” of being the daughter of the applicant cannot outweigh the latter ’ s legitimate right to have at least the opportunity to deny paternity of a child who, according to scientific evidence, was not his own. As to the interests of legal certainty, the Court cannot but reiterate the observations developed under Article 6 § 1 of the Convention (see paragraphs 87-90 above).",
"113. According to the Court ’ s case-law, a situation in which a legal presumption is allowed to prevail over biological reality might not be compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life ( see, mutatis mutandis, Kroon and Others, cited above, § 40 ).",
"114. The Court considers that the fact that the applicant was never allowed to contest his paternity of Y was not proportionate to the legitimate aims pursued. It follows that a fair balance has not been struck between the general interest in the protection of legal certainty of family relationships and the applicant ’ s right to have the legal presumption of his paternity reviewed in the light of biological evidence. Therefore, despite the margin of appreciation afforded to them, the domestic authorities have failed to secure respect for the applicant ’ s private life, to which he is entitled under the Convention.",
"115. Accordingly, the Court finds that there has been a violation of Article 8.",
"116. This finding dispenses the Court from establishing whether this provision has also been violated on account of the reciprocal right of maintenance existing between the applicant and Y and the ‘ inheritance rights enjoyed by the latter.",
"IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 AND ARTICLE 8",
"117. The applicant complained of discrimination on the ground of his status as the legally presumed father in the exercise of his rights under Article 6 § 1 and/or Article 8 of the Convention. He invoked Article 14 of the Convention, which reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. The parties ’ submissions",
"1. The Government",
"118. The Government submitted that the applicant ’ s complaint was similar to that examined by the Court in the case of Rasmussen v. Denmark ( cited above ). They further observed that under Maltese law the circumstances under which any interested person could challenge a child ’ s legitimacy without a specific time-limit were rather exceptional (in particular, when it had been physically impossible for the husband to have cohabitated with his wife or when the child was born three hundred days after the dissolution or annulment of the marriage). These circumstances had not occurred in the present case and the applicant had therefore not been treated differently from other persons. Moreover, an action by an “interested person” would be limited by the provisions of the Civil Code protecting the status of a child conceived or born in wedlock and the status assigned by the birth certificate.",
"119. The Government also submitted that the applicant was not in a situation analogous to that of the other persons in relation to whom he alleged to have been discriminated against. In any event, the time-limits for bringing an action for disavowal were aimed at protecting legal certainty, at avoiding the possibility that a child might have his or her paternity determined a long time after birth and at preventing the action from being used by the husband as a tool for blackmailing the child or the mother. Any difference in treatment was therefore objectively and reasonably justified.",
"120. As to the applicant ’ s allegation that in other Contracting States (notably Austria and Denmark at the time of the Rasmussen judgment) it was possible to bring an action for disavowal after the legally prescribed time-limit, the Government pointed out that leave for bringing the action out of time was subject to strict conditions. There was no evidence that in other Contracting States a father would be allowed to deny paternity if he obtained scientific evidence twenty-seven years after the birth of the child and wished to start proceedings six years after obtaining that evidence. It was shown by a report on “The establishment and consequences of maternal and paternal affiliation” that the average limitation period for bringing an action for disavowal in Europe was one year (notably in Switzerland, Austria and Italy) and that a six-month period was by no means exceptional ( being applied, for instance, in France, Poland and Spain). The report also indicated that in some countries ( such as Germany, Switzerland, Austria and Hungary) the time started to run from the date on which the husband became aware of the circumstances suggesting that he might not be the father of the child. However, such a provision would not have benefited the applicant, who had already had doubts as to his paternity of Y at the time of ‘ her birth.",
"121. In view of the above, the Government submitted that in providing for a shorter period for the husband to bring an action for disavowal, the national authorities had not exceeded their margin of appreciation. They had treated differently situations which were not analogous and which could not form the basis for a claim of discrimination.",
"The applicant",
"122. The applicant alleged that contrary to other individuals in an analogous situation (namely X, Y and Y ’ s real father), he was subject, in bringing an action for disavowal, to the limitation period set forth in Article 73 of the Civil Code. If Y wished to bring an action to determine her paternity, she would be in an even more preferential position, as she would not be required to establish any of the grounds set out in Article 70 § 1 and Article 77 of the Civil Code and would not be subject to any limitation period.",
"123. As to the Government ’ s contention that ‘ the paternity of Y could not be challenged by reason of the irrebuttable presumption that a person conceived in wedlock possessed a status in conformity with his or her birth certificate, the applicant submitted that it was far from clear that Y possessed such a status. In fact, she had never been treated as a child by the applicant and had never been acknowledged as such by his family.",
"124. The applicant considered that the impugned difference in treatment had no justification. The importance of legal certainty and the need to prevent blackmail applied equally to all the parties and not only to the presumed father. In any event, the Government had failed to explain why it was necessary to apply a limitation period which was inflexible, subject to no exceptions and shorter than those applied by many other High Contracting Parties. Moreover, in many countries the period did not start to run from the birth, as in Malta, and leave could be granted to bring the action outside the normal requirements.",
"125. The applicant lastly pointed out that in a judgment of 2 June 2005 the Spanish Constitutional Court had declared that the one-year time-limit provided for by domestic law was unconstitutional in circumstances where it prevented a husband from bringing an action for disavowal where he had obtained proof that a child born in wedlock was not his only after the expiry of that period. This conclusion had been considered a corollary of the principle of the dignity of the person, both from the perspective of the right of the son to know his identity as well as from that of paternity as a projection of the person.",
"B. The Court ’ s assessment",
"1. Applicability of Article 14",
"126. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 184, § 33, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22).",
"127. The Court has found that the facts of the case fall within the ambit of Article 6 § 1 and Article 8 of the Convention (see paragraphs 77 and 10 4 above). Moreover, it has found a breach of these two provisions (see paragraphs 90 and 115 above).",
"128. Accordingly, Article 14 is applicable in conjunction with Article 6 § 1 and Article 8.",
"Compliance with Article 14 of the Convention",
"129. The Court observes that in the present case, in bringing an action for disavowal the applicant was subject to time-limits which did not apply to other “interested parties”. In particular, pursuant to Article 73 (a) of the Civil Code, a husband had to bring an action to disavow a child within three months from the date of the birth. This period was extended to six months in 1993 (see paragraphs 36 and 38 above). On the contrary, any person interested may impeach the legitimacy of a child born in wedlock by means of an action which is not subject to any time-limit (see Article 77 of the Civil Code, paragraph 39 above). Moreover, the domestic courts have held that a child has the right to challenge his or her paternity without restrictions when the status assigned by the birth certificate conflicts with the factual reality (see paragraph 40 above ).",
"130. The Court reiterates that Article 14 safeguards individuals who are \"placed in analogous situations\" against discriminatory differences of treatment (see Rasmussen, cited above, p. 13, § 35).",
"131. The Court accepts that there might have been differences between the applicant and the other interested parties – namely X, Y and Y ’ s biological father. However, the fact that there are some differences between two or more individuals does not preclude them from being in sufficiently comparable positions and interests. The Court considers that with regard to their interest in contesting a status relating to paternity, the applicant and “other interested parties” were in analogous situations within the meaning of Article 14 of the Convention (see, mutatis mutandis, Rasmussen v. Denmark, no. 8777/79, Commission ’ s report of 5 July 1983, Series A no. 87, p. 24, § 75).",
"132. According to the Court ’ s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 61, ECHR 2004 -VIII ). In this connection, the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, among other authorities, Fretté v. France, no. 36515/97, § 34, ECHR 2002-I, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53).",
"133. In the Rasmussen case, the Court, having regard to the lack of common ground in the Contracting States ’ legislation and to the margin of appreciation enjoyed by the domestic authorities, held that the institution of different time-limits between husbands and wives could be justified by the desire to ensure legal certainty and to protect the interests of the child, and that it did not exceed a reasonable relationship of proportionality ( Rasmussen, cited above, pp. 15-16, §§ 41-42).",
"134. The present case is, however, distinguishable from that of Rasmussen, in which the applicant had an opportunity to disavow the child during the five years subsequent to the birth and within twelve months after he had become cognisant of the circumstances affording grounds for contesting paternity. As noted above (see paragraphs 80, 87 and 10 8 ), Mr Mizzi never had such an opportunity. The rigid application of the time-limit, coupled with the Constitutional Court ’ s refusal to allow an exception, deprived him of the possibility of exercising the rights guaranteed by Articles 6 and 8 of the Convention, which, on the contrary, were and still are enjoyed by the other interested parties.",
"135. Under these circumstances, the Court cannot conclude that the difference in treatment complained of was proportionate to the aims sought to be achieved.",
"136. It follows that there has been a violation of Article 14, read in conjunction with Article 6 § 1 and Article 8 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"137. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"138. The applicant alleged that his inability to disavow his paternity of Y and his participation in the subsequent domestic litigation had caused him anxiety, frustration and distress. He sought 3, 500 Maltese liras ( MTL – approximately 8,431 euros (EUR)) for non-pecuniary damage. He referred, in that connection, to the sums awarded by the Court in the cases of Keegan v. Ireland (judgment of 26 May 1994, Series A no. 290, p. 23, § 68) and L. v. the Netherlands ( § 48, no. 45582/99, ECHR 2004-IV ).",
"139. The Government considered that the applicant ’ s claim was “misplaced” and that the finding of a violation would constitute sufficient just satisfaction. They submitted that it was likely that anyone who tried to reverse a declaration of paternity which he had himself made would suffer some anxiety and frustration, as a normal side-effect of legal proceedings. Moreover, the cases cited by the applicant concerned denial of access to a natural daughter and not disavowal of paternity.",
"140. The Court finds, in the circumstances, that the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.",
"B. Costs and expenses",
"141. The applicant sought the reimbursement of the costs incurred before the Court, which, according to the bills he had produced, amounted to MTL 3 6, 8 2 6. 3 4 (approximately EUR 88, 718 ).",
"142. The Government considered that the amount claimed by the applicant was manifestly excessive and that it had no relation to normal legal costs in human -rights litigation in Malta. Moreover, the applicant had not provided any proof that the expenses incurred in Malta had been taxed according to law. Without being obliged to do so, he had engaged the services of celebrity London barristers, whose fees were notoriously higher than those of Maltese lawyers. Under these circumstances, the Government were of the opinion that the applicant should bear most of the fees he had incurred and that a fair assessment of the costs and expenses should be made in accordance with the legal aid rates applicable in Strasbourg proceedings.",
"143. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, inter alia, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Craxi v. Italy, no. 34896/97, § 115, 5 December 2002).",
"144. The Court considers the amount claimed to be excessive. It is therefore appropriate to reimburse only in part the costs and expenses alleged by the applicant (see, mutatis mutandis, Nikolova v. Bulgaria, no. 31195/96, § 79, ECHR 1999-II; Sakkopoulos v. Greece, no. 61828/00, § 59, 15 January 2004; and Cianetti v. Italy, no. 55634/00, § 56, 22 April 2004 ). Having regard to the elements at its disposal and on the basis of an equitable assessment, the Court awards the applicant EUR 40,000 under this head, plus any tax that may be chargeable on this amount.",
"C. Default interest",
"145. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
70 | Krušković v. Croatia | 21 June 2011 | The applicant complained that he had been denied the right to be registered as the father of his biological child, born out of wedlock. As he suffered from personality disorders as a result of long-term drug abuse, he had been deprived of legal capacity on the recommendation of a psychiatrist. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that, by ignoring the applicant’s claims that he was the biological father of the child, the Croatian State had failed to discharge its positive obligation to guarantee his right to respect for private and family life. It observed in particular that in the two and a half years between the moment when the applicant had made his statement to the registry and the launching of the proceedings before the national courts to establish paternity, he had been left in a legal void; his claim had been ignored for no apparent reason. The Court could not accept that this was in the best interests of either the father, who had a vital interest in establishing the biological truth about an important aspect of his private life, or of the child to be informed about her personal identity. | Parental Rights | Filiation | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1966 and lives in Jurdani.",
"5. On 25 February 2003 the applicant was divested of his legal capacity ( poslovna sposobnost ) by a decision of the Opatija Municipal Court ( Općinski sud u Opatiji ). The decision was based on a report by a psychiatrist, who established that the applicant suffered from organic personality disorder and antisocial personality disorder as a result of his long-term drug abuse. The psychiatrist recommended that the applicant be divested of his legal capacity for a period of at least five years in order to undergo psychiatric treatment.",
"6. On 2 April 2003 the Opatija Social Welfare Centre ( Centrar za socijalnu skrb Opatija ) appointed the applicant ’ s mother, Lj.I.G., as his guardian.",
"7. On 29 September 2006 the Opatija Social Welfare Centre appointed the applicant ’ s father, D.K., as his guardian since his mother had fallen ill. On an unspecified date the same centre appointed its employee J.L as the applicant ’ s guardian.",
"8. On 30 June 2007 K.S. gave birth to a daughter, K., and named the applicant as the child ’ s father. On 17 August 2007 the applicant, with the consent of the child ’ s mother, gave a statement at the Rijeka Birth Registry ( Matični ured Rijeka ) saying that he was the father of the child, and he was subsequently registered as such on the child ’ s birth certificate. On 14 September 2007 the applicant gave the same statement before the Rijeka Welfare Centre ( Centar za socijalnu skrb Rijeka ).",
"9. On 19 October 2007 the Rijeka Social Welfare Centre informed the Birth Registry that the applicant had been divested of his legal capacity.",
"10. The Rijeka Birth Registry instituted proceedings in the Primorsko-goranska County Office of State Administration ( Ured državne uprave u Primorsko-goranskoj županiji ) for the annulment of the registration of the applicant as K. ’ s father. On 29 October 2007 the County Office gave a decision ordering that an amendment be made to the child ’ s birth certificate annulling the previous note stating that the applicant was the father of the child, on the ground that as a person divested of his legal capacity he did not have the right to recognise K. as his child before the law.",
"11. This decision was not served on the applicant, since he had been divested of his legal capacity. It was served on his mother.",
"12. On 21 March 2010 the Opatija Welfare Centre brought a civil action in the Opatija Municipal Court against the applicant, K.S., and K., seeking that the Municipal Court establish that the applicant was K. ’ s father. The proceedings are still pending."
] | [
"II. RELEVANT DOMESTIC LAW",
"13. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:",
"Section 56",
"“(1) ... paternity may be recognised before a registrar of a registry office, a social welfare centre or a court ...",
"... ”",
"Section 61",
"“(1) The child ’ s mother shall give consent to the registering of the recognition of paternity.",
"... ”",
"Section 73",
"“A social welfare centre may lodge a civil claim seeking ... to establish paternity up until the child ’ s eighteenth birthday.”",
"Section 1 59",
"“(1) An adult who, owing to mental illness or for other reasons, is not able to care for his or her own needs, rights and interests, or who presents a risk for the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-contentious proceedings.",
"(2) Before adopting a decision under paragraph 1 of this section, a court shall obtain the expert opinion of a medical expert about the health conditions of the person concerned ... ”",
"Section 162",
"“ The competent social welfare centre shall place under guardianship any person ... divested of his or her legal capacity ... ”",
"Section 179",
"“ (1) The guardian shall take care of the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures to enable the ward to have an independent working and personal life.",
"... ”",
"Section 184",
"“(1) The guardian represents the ward.",
"... ”",
"Section 185",
"“In order to undertake more extensive measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"14. The applicant complained that he had been denied the right to be registered as the father of his biological child. He relied on Article 8 of the Convention, the relevant part of which reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. Applicability of Article 8",
"15. The Government argued that the applicant ’ s statement that he was the father of K. could not produce any legal consequences and that therefore there had been no violation of his right to respect for his private life. Consequently, Article 8 was not applicable to the facts of the present case.",
"16. The applicant contested that argument.",
"17. The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect” for “private and family life” set forth in Article 8 of the Convention.",
"18. As regards the issue of paternity, the Court has held on numerous occasions that paternity proceedings do fall within the scope of Article 8 (see, for example, Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87, and Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In this connection, the Court has held that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships but may also encompass other de facto “family ties” where sufficient constancy is present (see, for example, Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C).",
"19. The present case differs from the paternity cases cited above in so far as the applicant himself has not instituted any proceedings before the national courts to establish his paternity, but simply claims, with the consent of the child ’ s mother, that he is the biological father of the child K.",
"20. The Court has already held that the legal relationship between a child born out of wedlock and his or her natural father falls within the ambit of Article 8 of the Convention (see Mikulić v. Croatia, no. 53176/99, §§ 50 ‑ 55, ECHR 2002 ‑ I. ). There is no reason to hold otherwise in the present case.",
"21. The facts of the case accordingly fall within the ambit of Article 8.",
"2. Exhaustion of domestic remedies",
"22. The Government argued that the complaint under Article 8 of the Convention was premature because the proceedings concerning his paternity were still pending.",
"23. The applicant argued that these proceedings had been instituted only after the present application had been communicated to the respondent Government and that his legal position, irrespective of the proceedings the Government referred to, was incompatible with the requirements of Article 8 of the Convention.",
"24. The Court considers that the question of exhaustion of domestic remedies should be joined to the merits, since it is closely linked to the substance of the applicant ’ s complaint about the State ’ s alleged failure to ensure that his paternity was promptly recognised in law.",
"25. The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Moreover, it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"26. The applicant argued that he had no possibility of having his paternity of K. established and that in that respect he was left in a legal void. The fact that a competent social welfare centre could institute court proceedings to establish his paternity was irrelevant since there was no obligation or time-limit for a centre to do so. Nor was his guardian obliged to take any action in that regard. He had repeatedly asked the Opatija Social Welfare Centre to take legal action in order to have his paternity of K. registered, but to no avail. A situation where his paternity had not been registered for more than two and a half years could not be in the interests of the child either.",
"27. The Government argued that the applicant had been divested of his legal capacity because it had been established that he could not care for his own interests and, therefore, placing the applicant under guardianship was in his best interests. A person divested of his legal capacity could not undertake any legal act and it was in the best interests of the applicant and K. that he could not give any legally binding statement concerning his paternity of K. His paternity could only be established in court proceedings by DNA analysis. Proceedings for establishing the applicant ’ s paternity before a regular court had been instituted and were still pending. Such proceedings could be instituted up until the child ’ s eighteenth birthday.",
"28. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998 ‑ I; and Mikulić, cited above, § 57 ).",
"29. However, the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see Mikulić, cited above, § 58 ). Nevertheless, Article 8 does not give the Contracting States an unlimited power of appreciation. The Court is responsible for ensuring the observance of those States ’ engagements and is empowered to give the final ruling on whether a “restriction” is reconcilable with the guarantees of Article 8 of the Convention. The domestic margin of appreciation thus goes hand in hand with European supervision.",
"30. As regards the issues pertinent to the present case, the Court accepts that restrictions on the rights of persons divested of legal capacity, even when they occur in the sphere of their private and family life, are not in principle in contradiction with the requirements of Article 8 of the Convention.",
"31. However, these restrictions should, in principle, be subject to the relevant procedural safeguards. At this juncture the Court reiterates the fundamentally subsidiary role of the Convention. Under the system of protection established by the Convention it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of restriction of the personal rights and of the remedial action to be taken (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24, and James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). In line with the same principle, it is also primarily for the national authorities to ensure by whatever means they deem appropriate compliance with their obligations under the Convention. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention.",
"32. Thus, the Court ’ s task is not to substitute itself for the competent Croatian authorities in determining the most appropriate methods for establishing paternity through judicial proceedings in Croatia, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Croatia, in its handling of the issue of the applicant ’ s paternity of K., is in breach of its positive obligation under Article 8 of the Convention (see, for instance, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and, mutatis mutandis, Handyside v. the United Kingdom, cited above, § 49 ).",
"33. The Court notes in the present case that under the relevant domestic law the applicant has no possibility of giving any statement as to his paternity of K. As a person divested of his legal capacity he is not allowed to institute any proceedings to have his paternity established. In that respect he is entirely dependent on the actions of the competent social welfare centre.",
"34. In the Court ’ s opinion, persons in the applicant ’ s situation have a vital interest, protected by the Convention, in establishing the biological truth about an important aspect of their private and family life and having it recognised in law.",
"35. As to the position of the applicant in this regard, the Court notes that there was no possibility for the applicant to recognise his paternity before the national authorities or to institute any proceedings in order to prove his paternity. While this position might be seen as justified in respect of persons who have been divested of their legal capacity in order to protect them from giving legally binding statements which run contrary to their interests or even contrary to the facts, the Court is mindful of the following.",
"36. In the present case both the applicant and the child ’ s mother agree that the applicant is K. ’ s biological father.",
"37. Soon after K. ’ s birth on 30 June 2007 the applicant gave a statement that he was the father of K. However, that statement could not have legal effect because the applicant had been divested of his legal capacity. The relevant authorities, however, did not invite the applicant ’ s father, who appears to have been his legal guardian at that time, to give his consent to the applicant ’ s recognition of his paternity. If J.L. had already been appointed as the applicant ’ s guardian at that time, it was her duty, as an employee of the Opatija Social Welfare Centre, to take care of the applicant ’ s interests. There is no doubt that the recognition and registration of his paternity of K. was of vital interest for the applicant. However, the competent social welfare centre at the time when K. was born and the applicant was making attempts to have his paternity registered took no steps to assist the applicant in his attempt to have his paternity recognised in law.",
"38. According to the Government, the only possible means for the applicant to have his paternity established is by the institution of civil proceedings to that end by the competent social welfare centre. In the proceedings instituted by the social welfare centre claiming that the applicant is the biological father of K, the applicant has the status only of defendant. The Court notes, however, that the applicant has never denied his paternity and that it is he who actually wants his paternity to be established.",
"39. Furthermore, while proceedings for establishing paternity may be instituted up until the child ’ s eighteenth birthday, there is no legal obligation under the national law on the relevant national authorities responsible for the applicant to institute such proceedings at all and consequently there are no time-limits for the competent authorities to answer the applicant ’ s claim that he is the biological father of K. Thus, the social welfare centres enjoy unlimited discretion as to when to take any action in order to ensure that the paternity of persons divested of legal capacity is properly established and registered, or whether to take any action at all.",
"40. As a consequence of the above-described legal position, the applicant was left in a legal void until the proceedings for establishing his paternity were instituted. Furthermore, he had no means to compel the Opatija Social Welfare Centre to institute such proceedings. Thus, more than two and a half years passed between the time when the applicant gave his statement that he was the biological father of K. and the institution of the court proceedings in the matter by the Opatija Social Welfare Centre.",
"41. Contrary to the Government ’ s arguments, the Court cannot accept that this situation is in the best interests of either the applicant or the child. In this connection, the Court reiterates that a child born out of wedlock also has a vital interest in receiving the information necessary to uncover the truth about an important aspect of their personal identity, that is, the identity of their biological parents (see Mikulić, cited above, § 64).",
"42. Against the above background, the Court considers that a fair balance has not been struck between the public interest in protecting persons divested of their legal capacity from giving statements to the detriment of themselves or others, and the interest of the applicant in having his paternity of K. legally recognised.",
"43. Having regard to the Government ’ s objection that was joined to the merits of the complaint, the Court notes that the relevant national authorities instituted the court proceedings for the establishment of the applicant ’ s paternity only more than two and half years after the applicant had requested them to do so, thus allowing a situation to arise in which the claim by the applicant and the child ’ s mother that the applicant was the biological father of K. was ignored for no apparent reason.",
"44. In these circumstances, the Court finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant ’ s right to respect for his private and family life. Accordingly, the Court finds that there has been a violation of Article 8 of the Convention and dismisses the Government ’ s objections as to the exhaustion of domestic remedies.",
"II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"45. The applicant further complained under Articles 2 and 14 of the Convention that he had no means of subsistence and that he had been discriminated against.",
"46. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"47. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"48. The applicant claimed 1,200 euros (EUR) per month in respect of maintenance for himself and his child and EUR 300,000 in respect of non-pecuniary damage. He also sought the immediate registration of his paternity of K. in the birth register.",
"49. The Government argued that the amounts claimed for maintenance were not related to the present application and that the claim for non-pecuniary damage was excessive and unfounded.",
"50. The Court notes that in the present case a violation of Article 8 has been found solely on account of the applicant ’ s position as regards the recognition of his paternity of K. in law. Therefore, there is no causal link between the violation found and the claim for monthly maintenance.",
"51. On the other hand, the Court considers that the applicant must have suffered some non-pecuniary damage owing to the fact that his paternity has not been recognised. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"52. The applicant also claimed EUR 100 for postal expenses incurred before the Court.",
"53. The Government made no comment.",
"54. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full, plus any tax that may be chargeable on that amount.",
"C. Default interest",
"55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
71 | Mifsud v. Malta | 29 January 2019 | The applicant7 complained about being ordered by a court to undergo a DNA test in a contested paternity case. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the domestic courts had fairly balanced the applicant’s rights and those of the woman who was trying to establish that he was her father. In particular, the courts had examined the applicant’s objections to taking the test in a first-instance civil court and at two levels of constitutional jurisdiction, eventually finding against him and ordering the procedure to take place. | Parental Rights | Filiation | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1925 and at the time of the introduction of the application lived in Dublin.",
"A. Background to the case",
"8. On 20 December 2012 X (who was around 55 years old) instituted an action before the Civil Court (Family Section) requesting the court to declare the applicant to be her biological father and to order this to be reflected on her birth certificate.",
"9. On 11 February 2013 the Director of the Public Registry (also defendant in the proceedings) requested the court to order that the parties undergo the genetic testing provided for by Article 100A of the Civil Code, and for the applicant to submit his details, which would be required to make the relevant changes to X’s birth certificate if the court had to find in X’s favour.",
"10. On 11 February 2013 the applicant filed written submissions in reply, denying that he had been involved in the applicant’s conception and raising the plea of exceptio plurium concubentium (defence of several lovers) on the basis that X’s mother had had various partners.",
"11. On 7 May 2013 X filed her written statement confirmed on oath ( affidavit ), as well as that of her mother. In her affidavit X claimed that she had been born in London of a relationship between her mother (Y.) and the applicant, and that from an early age she had always been told that the applicant was her father. After her sixteenth birthday she had sent a letter to him, which remained unanswered. She claimed that in 1978, learning that the applicant was going to be in Malta, she went to meet him at the airport – on that day she had seen him arrive with his family, and noted the resemblance between herself and one of the applicant’s daughters. On that occasion she had not approached him, but they met some time later before a lawyer. She stated that the applicant greeted her warmly and that, after that, they met various times. She also met the applicant’s wife. According to X the applicant had told her that he would not inform his children about her in order not to disrupt their schooling and she agreed. X stated that the applicant started visiting Malta regularly on his own, and when she had become pregnant he had offered her one of his properties to live in, and in this way they lived there together on his visits to the island. On the birth of X’s daughter in 1979, the applicant had been the latter’s godparent as shown by relevant certification. She claimed that at the applicant’s suggestion she moved to the UK, only to return sixteen months later because she missed Malta. At that stage the applicant had given her the keys to another property for her to live in. She remained in close contact with him until 1985. In 1998 she was evicted from the property and thereafter their relationship deteriorated. X explained that during the eviction proceedings the applicant had promised her a sum of money to leave the premises peacefully and that she had accepted the deal, but he never paid up. Subsequently, she successfully issued proceedings against him to recover the sum in question (the relevant court judgments were also submitted).",
"12. According to Y’s affidavit, Y. had had a relationship with the applicant, for whom she worked, and had become pregnant. She claimed that the applicant had wanted to interrupt the pregnancy and brought a person home to give her an injection. She later miscarried. The applicant had bought her a place to stay, and they used to meet there, since he was married. Y claimed that she had always been faithful to him as she feared him, given that he was a powerful man involved in criminal activities. Y stated that she later gave birth to a child she had with him (X) and thereafter their relationship had deteriorated, to the extent that he had also wanted her to prostitute herself. She finally plucked up courage, left him, and returned to Malta with X",
"13. On 13 May 2013, relying on Article 100A of the Civil Code (see Relevant Domestic Law), X requested the court to order that genetic tests be undertaken by her and the applicant. Apart from her own affidavit and that of her mother, she declared that she had no further evidence to adduce. On 4 June 2013 the applicant cross-examined Y. The cross ‑ examination was to continue at a later date. It is unclear whether this happened.",
"14. On 22 May 2013 the applicant objected to the tests on the basis that such an order would breach his human rights. In particular, he argued that Article 100A of the Civil Code (which referred back to Article 70A of the same code) breached his rights under Article 8 of the Convention, and requested that the court refer the matter to the constitutional jurisdictions. He further questioned why the request had been lodged fifty ‑ three years after X’s birth and noted his advanced age, arguing that any intervention could have negative medical implications for him.",
"15. After hearing submissions from the parties on the matter, on 23 October 2013 the court referred the applicant’s claim to the constitutional jurisdictions.",
"B. Constitutional redress proceedings",
"16. In his submissions before the constitutional jurisdictions the applicant claimed that none of the aims mentioned in sub ‑ paragraph two of Article 8 applied in his case, and that the law in force did not allow for a fair balance of the competing interests at play. It also imposed an excessive burden in so far as it impeded his ability to contest a claim. Moreover, everyone was entitled to institute such proceedings without a shred of evidence, and an alleged father would be bound to submit to the test, with all its consequences, even though he was sure that he was not the father. He claimed that a positive result of the test would disrupt and create havoc in his life after so many years of silence [he was 88 years old]. He requested that the court balance X’s right (if any) to know who was her father against his right to respect for his private and family life.",
"1. At first instance",
"17. By a judgment of 30 October 2014 the Civil Court (First Hall), in its constitutional competence, found that there would be no violation of Article 8 if the Civil Court (in its ordinary competence) were to order the applicant to undergo a genetic test, for the specific purposes of that suit.",
"18. The court considered that the enactment of the impugned provisions reflected the State’s action in accordance with its positive obligations in respect of the right of individuals’ to know their parentage in the context of a judicial procedure. Citing Pascaud v. France (no. 19535/08, § 64, 16 June 2011), the court reiterated that “the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant [a person seeking to establish paternity] of her Article 8 rights”. According to the court, disproportionality would result if the person seeking paternity had acted negligently, by not requesting the test or not availing him or herself of an available remedy, or had renounced such right, but this was not the situation in the case in hand. Referring to the ECtHR case ‑ law the court noted that while it was true that the absence of an obligatory test did not necessarily entail a violation, it could not be said that making it obligatory was in violation of Article 8 because it was not proportionate.",
"19. Furthermore, X’s age was irrelevant to her quest to discover her genetic parent. This was even more so given that she had been trying to establish paternity for years and that the applicant had been part of her life for a period of time. In that light the applicant could not claim that his family life would now be in havoc.",
"20. Lastly, referring to Jäggi v. Switzerland (no. 58757/00, ECHR 2006 ‑ X) which concerned the same circumstances save that the putative father in that case was deceased – the court confirmed that a particularly rigorous scrutiny was necessary in weighing competing interests in cases of ascertaining parentage, and that a person’s right to ascertain parentage was a vital interest protected by the Convention.",
"2. Appeal",
"21. On 10 November 2014 the applicant appealed. He argued, in particular, that by assessing the case in the light of positive obligations, the first ‑ instance court had failed to assess proportionality. Nor had it looked at the lawfulness of the measure and the legitimate aim – in this connection he contended that since the requirement to order the test was mandatory (unless it concerned a minor), it deprived the judge making such order of any possibility of balancing all the interests at stake and deciding according to his or her discretion. Furthermore, the impugned law breached the equality-of-arms principle and was contrary to procedural rules (specifically Article 562 of the Civil Code – see Relevant Domestic Law).",
"22. By judgment of 26 June 2015, the Constitutional Court rejected the appeal and confirmed the first ‑ instance judgment.",
"23. The Constitutional Court considered that, as was clear from the first ‑ instance judgment, the court in question had looked into the proportionality of the measure. While it had focused mostly on the legal aspects of the case, that did not mean that it had not considered the factual elements pertinent to the case, and indeed its conclusions had specifically referred to the case at issue and were not general.",
"24. As had been noted by the first-instance court, the Constitutional Court referred to the fact that X for a number of years had been hoping to discover the truth about an important aspect of her personal identity; she also wished to amend her birth certificate, which read “unknown father” (and was thus, in her view, incorrect), in order to avoid the humiliation which she experienced every time she had to present such certification. She also wanted to establish a claim over the applicant’s property after his death, according to law. Thus, her compelling interest in determining paternity was clear. On the other hand, save for his old age, the humiliation of undergoing the test (a buccal swab), and the havoc the confirmation of such paternity would cause, the applicant had not referred to any other negative effects.",
"25. The Constitutional Court recognised X’s right to have her paternity established for the reasons which she had adduced, namely moral and patrimonial interests. On the other hand, the applicant had not put forward any sufficiently cogent reasons to consider that the application in his case of Article 100A would breach his rights under Article 8. Reiterating the findings in Pascaud (cited above), the Constitutional Court emphasised that the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant (a person seeking to establish paternity) of her Article 8 rights. Indeed, Article 8 paragraph 2 expressly allowed for a legitimate interference with a person’s private life where such interference was “for the protection of the rights and freedoms of others”. This was precisely the situation in the case in hand. Thus, the application of the relevant law to the applicant’s case would be justified given that the aim was precisely to establish X’s identity and to safeguard her patrimonial interest, if it were to emerge that she was the applicant’s daughter.",
"26. In that light, and bearing in mind the applicant’s submissions that Article 70A(2) of the Civil Code excluded any exercise of discretion by the court ordering the test, the Constitutional Court considered that while it could not be ruled out that there might be cases where the necessary application ( applikazzjoni tassativa ) of Article 70A(2) of the Civil Code resulted in a breach of Article 8, namely where a fair balance has not been reached between the interests at play, in the present case that was not so, given its factual circumstances. In the Constitutional Court’s view the applicant would not have suffered any humiliation in having to undergo a buccal swab, which was not an invasive action, and any turbulence which could be caused to his private and family life did not outweigh X’s interests.",
"27. Lastly, the complaint about equality of arms was frivolous in so far as the test was available to both parties, and also because the fact that a piece of evidence amounted to conclusive evidence in favour of one party did not mean that it should be discarded.",
"C. Continuation of the civil proceedings",
"28. Following the above ‑ mentioned Constitutional Court judgment, on 18 October 2015 the Civil Court (Family Section) ordered that the proceedings be continued and that the applicant undergo the genetic test. It appointed an expert to conduct that examination and invited her to submit a report by 28 January 2016.",
"29. On 24 May 2016 counsel for the applicant informed the court that inquiries were to be made with the applicant concerning the possibility of his tendering evidence by video conferencing given that he was residing abroad. On 6 October 2016 counsel informed the court that it was likely that the applicant would file an affidavit with his own evidence. However, no such written testimony was submitted.",
"30. The applicant underwent the test, and according to a report issued by the expert on 21 February 2017 (submitted to the ECtHR) the probability of paternity, namely of the applicant being X’s father, was 99.9998%.",
"31. From the minutes of the hearing of 6 April 2017, it appears that the expert could not attend that hearing, so the court granted her leave to submit the report, and confirm it on oath, at the court’s registry; the court also solicited the applicant’s details. The case was adjourned for judgment. On the same day a note was filed by the applicant indicating his personal details.",
"32. On 21 June 2017 Civil Court (Family Section) declared that X was the biological child of the applicant and ordered the Director for Public Registry to make the necessary changes in the act of birth of X so as to include the applicant’s details. The court judgment referred to the sworn statements of X and Y as well as to the DNA report, and the failure of the applicant to make submissions, opting to limit himself to submitting his personal details. The court noted that X and Y’s testimony had not been rebutted as the applicant had failed to submit his testimony, and the applicant’s initial objection had been contradicted by the result of the DNA test, which corroborated the witness testimony, particularly that of Y."
] | [
"II. RELEVANT DOMESTIC LAW",
"33. At the relevant time, the articles of the Civil Code, Chapter 16 of the Laws of Malta, pertinent to this case, read as follows:",
"Article 70A (Natural parentage)",
"“(1) Whenever the clarification of natural parentage of a child is required -",
"( a ) the father may require the mother and the child;",
"( b ) the mother may require the father and the child;",
"( c ) the child may require both parents; and",
"( d ) the alleged natural father may require the husband, the mother and the son,",
"to consent to a genetic paternity test and to acquiesce in the taking of a genetic sample appropriate for the test, which sample must be taken according to the then current provisions of the law.",
"(2) On the application of a person entitled to clarify, the Civil Court (Family Section) must substitute consent that has not been given and order acquiescence in the taking of a sample.",
"(3) The Civil Court (Family Section) shall dismiss the application if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to clarify.",
"(4) A person, who has consented to a genetic paternity test and has given a genetic sample, may require the person entitled to clarify who has had a paternity test made, to permit inspection of the genetic paternity test report or to provide a copy. The Civil Court (Family Section) shall decide disputes arising from the claim under sub ‑ article (1).",
"(5) The applications mentioned in this article shall be decided by virtue of decrees, which decrees may be appealed according to the procedure contemplated in article 229(2) of the Code of Organization and Civil Procedure.”",
"Article 86A",
"“(1) The mother of a child conceived or born out of wedlock who is not acknowledged by the father, and that same child, may at all times make a judicial demand to establish the paternity of the child and for the court to order the registration of such paternity in the relative acts of civil status.",
"(2) The judicial demand referred to in sub ‑ article (1) may also be sought by the heirs or the descendants of the child if the same circumstances as those which are referred to in article 85 will exist.”",
"Article 100",
"“A judicial demand for a declarator of paternity or maternity may also be contested by any party interested.”",
"Article 100A",
"“In causes to which this Sub-Title makes reference, the court may, without prejudice to any evidence that may be produced by the parties according to law, require the parties to submit to examinations as referred to in article 70A, and in the same manner and in the same circumstances.”",
"34. According to Article 229 (2) of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, an appeal from a decree in causes of natural parentage may be entered before the definitive judgment subject to the procedure laid down in sub-article (4) and (5) of the same Article 229 which read as follows:",
"“(4) In the case of any decree under sub-articles (2) and (3), provided that any application for an appeal has not been filed, the aggrieved party may file an application within six days from the date on which the decree is read out in open court, requested [ recte requesting] the court which delivered the decree to reconsider its decision. The application is [to] contain full and detailed reasons in support of the request and is to be served on the other party who shall have the right to file an answer thereto within six days from the date of service.",
"(5) The court shall decide, as expeditiously as possible by decree to be read out in open court, the application for special leave to appeal in terms of sub-article (3) or the application to reconsider its decision in terms of sub-article (4), expounding fully therein the reasons for the decision.”",
"35. Article 562 of the Code of Organisation and Civil Procedure reads as follows:",
"“Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"36. The applicant complained that Maltese law made it mandatory to provide a genetic sample in paternity proceedings, and that the imposition of such an order on him, contrary to his will, resulted in a breach of Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"37. The Government contested that argument.",
"A. Admissibility",
"1. As to the locus standi of Ms Margaret Mifsud",
"38. Following the introduction of the application, Mr Mifsud passed away and his widow Ms Mifsud expressed the wish to pursue the application.",
"39. In its case ‑ law, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those applications where he or she had already died before the lodging of the application. Where the applicant has died after the application was lodged, the Court has accepted that the next ‑ of ‑ kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014).",
"40. Having regard to the circumstances of the present case, the Court accepts that Ms Mifsud, the wife and heir of the direct victim (who had lodged the application before his death), has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at her request. For practical reasons, it will, however, continue to refer to Mr Mifsud as the applicant in the present judgment.",
"2. Other matters",
"41. The Government noted that in his submissions the applicant was repeatedly relying on Article 6 of the Convention, a matter which had not been raised before the domestic courts and which was therefore inadmissible for non ‑ exhaustion. Moreover, such complaint having only been raised in the applicant’s submissions of 6 April 2018, after the six-month time-limit, it was also out of time.",
"42. The Court notes that the application communicated to the Government concerned solely a complaint under Article 8 of the Convention, and therefore the scope of the case does not include an examination of Article 6 of the Convention per se, without prejudice, however, to any arguments which may be relevant to the assessment of the impugned measure under Article 8 of the Convention.",
"43. The Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicant",
"44. In his application the applicant submitted that Article 100A of the Civil Code, which referred to Article 70A of the same code, breached his rights under Article 8. He considered that the legislation failed to meet the quality-of-law requirement, given that it breached the equality-of-arms principle by making it compulsory for a party to filiation proceedings to adduce evidence against himself, despite the opposing party having been unable to fulfil the burden of proof necessary in civil proceedings. This, coupled with the fact that it was mandatory and therefore not subject to any assessment, or discretion, by the domestic courts, rendered it contrary to the rule of law. Moreover, the law was devoid of legal certainty as it was unforeseeable as to its consequences in the event of a person refusing to submit to such test. He questioned whether such a party could be coerced through the use of physical force to provide the sample in question.",
"45. In his observations the applicant emphasised that the admission of such a piece of evidence in the proceedings had hindered his defence and been a determining consideration in the outcome of his case. He argued that once that evidence had been adduced in the case ‑ file he could no longer offer his defence reiterating his original arguments without risking prosecution for the offence of perjury in civil proceedings. Thus, the very fact that the order issued to him to submit to the genetic test had been made out at the initial stage, before the applicant had been authorised to adduce his evidence, was contrary to the object of Article 8, as well as to that of Article 6 of the Convention. The applicant emphasised the early stage at which the test had been ordered – even before the applicant’s version of events had been heard – when he had not yet produced any submissions or evidence and no cross ‑ examinations had yet taken place, and argued that the factual circumstances referred to by the Constitutional Court had been “one ‑ dimensional” and prejudicial to his right to defend himself in the civil proceedings. This had been made worse by the ambiguous wording of Article 100A of the Civil Code, which stated “without prejudice to any evidence that may be produced by the parties”, which would result in a situation where the applicant could not defend himself at all. He considered that had the test been ordered after he had been allowed to submit evidence, then his defence rights would have been respected. Similarly, the judge would have been able to take a decision as to the necessity of the test on the basis of the evidence submitted by both parties. In his view, he had been coerced into adducing evidence against himself, contrary to the principle against self ‑ incrimination, and had thereafter been denied his right to defend himself, while X had been freed from her legal burden to adduce evidence in support of her civil claim, which was a cardinal rule of evidence. On the basis of the above, the applicant considered that the measure had not been in accordance with the law, since the implication arising from the application of the law itself were in themselves problematic in terms of natural justice.",
"46. The applicant further submitted that a reading of Article 100A at face value appeared to indicate that the court had had discretion to order the test. However, when read in combination with Article 70A(2) of the Civil Code this became mandatory. Relying on Malone v. the United Kingdom (2 August 1984, Series A no. 82) and Silver and Others v. the United Kingdom (25 March 1983, Series A no. 61), he noted that a law which conferred discretion had to indicate the scope of that discretion, which in the applicant’s view implied that a law which did not cater for the exercise of discretion, should not be deemed to be in accordance with the law.",
"47. Furthermore, he considered that such legislation did not pursue any legitimate aim within the meaning of Article 8 § 2. The applicant took the view that the mere fact that a law was enacted in pursuance of a State’s positive obligations did not mean that any resulting measure was automatically proportionate. Indeed, the domestic courts had not specified any pressing social need. In the light of the fact that the law provided for a burden of proof in civil cases (consisting of a balance of probabilities), in the applicant’s view, ordering the test could not have been considered “necessary” as the same result could be achieved by less restrictive means. The State’s positive obligation could have been fulfilled by allowing the court to invite a party to a filiation suit to submit to a genetic test, or allowing for inferences to be drawn from a refusal to undergo the test, which would have allowed the applicant to present his defence nonetheless.",
"48. The applicant also complained about the findings of the constitutional jurisdictions, specifically their failure to look in detail into the proportionality of the measure. On the contrary they had made a superficial analysis and failed to conduct a thorough and correct assessment of the relationship between the conflicting interests at stake. In the present case, those interests had concerned each party’s individual human rights, and both deserved protection. It was even more necessary for the constitutional jurisdictions to carry out such an assessment given that the law did not allow for a judge in filiation proceedings to consider the interests at play before ordering such tests, unless the person in question was a minor. He noted that while relying on the Court’s case ‑ law, the domestic court had failed to draw a distinction between the facts of the cases already decided by the ECtHR and those in the present case, which were intrinsically different. He also noted that the case of Canonne v. France ((dec.), no. 22037/13, 2 June 2015) as relied on by the Government was not comparable to the present case, given that in that case, Mr Canonne had refused to undergo the test.",
"(b) The Government",
"49. The Government acknowledged that the mandatory taking of the genetic sample in the context of the paternity suit could constitute an interference with the applicant’s Article 8 rights, but argued that it was justified. However, they also argued that in the present case there had been no interference, given that the applicant had not shown that he had been adversely affected. They noted that while the DNA testing had established his paternity, the applicant had continued to reside abroad with his family.",
"50. The Government submitted that the measure at issue had had a basis in domestic law, namely Article 100A of the Civil Code, which also allowed parties to produce additional evidence. The provision was clear and left no room for interpretation as to whether the court could order such a test. Article 70A was even clearer, in that it set out a step-by step-procedure to be followed and also provided for an appeal.",
"51. The Government noted that the Court had established in a number of cases that the right to identity (which includes the right to know one’s parents) was an integral notion of private life and that the State must have an appropriate and adequate mechanism in order to establish the parentage with certainty. They referred to Mikulić v. Croatia (no. 53176/99, ECHR 2002 ‑ I), Jäggi v. Switzerland (no. 58757/00, ECHR 2006 ‑ X) and Pascaud v. France (no. 19535/08, § 62, 16 June 2011). Thus, according to the Government, the measure had been necessary to establish X’s paternity, as X had a vital interest protected by the Convention in receiving the information enabling her to uncover the truth about an important aspect of her identity. Under Maltese law, the Civil Code had compelled the father to submit to the DNA test in order to secure X’s right. Nevertheless, the domestic courts were vested with discretionary powers in deciding whether to order the DNA test, in the child’s best interests. This allowed them to examine each case on its own merits and to strike a fair balance between the competing rights. They referred to Canonne (cited above).",
"52. The Government further submitted that the applicant had had the opportunity to produce evidence and rebut the allegation. They also noted that in its judgment of 21 June 2007 the domestic court had examined all the evidence before it, including the genetic test, but also the fact that it had transpired from the witness testimony that the applicant and his family had met X and her family, and that the applicant had helped X and her family to settle both in Malta and in the United Kingdom. The applicant had been aware that X was his daughter, and there had been numerous occasions when he had resided with her and her family. Thus, the domestic court had relied on a plurality of elements, as had also been the case in Canonne (cited above).",
"53. The Government further noted that the applicant could have challenged the DNA test by producing an ex parte report to do so. Indeed the fact that the test had been ordered at the evidence-gathering stage did not mean that the applicant could not have produced any evidence in support of his pleas. On the contrary, had the DNA test been negative, it would have been the best means for the applicant of challenging the allegation of his paternity. The mere fact that the result did not corroborate his arguments did not mean that there had been a violation of his rights. Moreover, the applicant could have appealed against the decree ordering the test result as provided by Article 70A(5) of the Civil Code. However, he had failed to so.",
"2. The Court’s assessment",
"(a) General principles",
"54. The Court has previously held that the taking of cellular material and its retention and the determination and retention of DNA profiles extracted from cellular samples constitute an interference with the right to respect for private life within the meaning of Article 8 § 1 of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 71 to 77, ECHR 2008).",
"55. Such interference will be in breach of Article 8 of the Convention unless it can be justified under its paragraph 2 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Peruzzo and Martens v. Germany (dec.), no. 7841/08 and 1 other, § 34, 4 June 2013).",
"56. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private or family life. These positive obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Mikulić, cited above, § 57 and S.H. and Others v. Austria [GC], no. 57813/00, § 87, ECHR 2011). Further, respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others v. Romania, nos. 25057/11 and 2 others, § 83, 19 July 2016, with further references).",
"57. The Court has already found violations of Article 8 in cases where the domestic system failed to provide for measures to compel a putative parent to comply with a court order to undergo genetic testing (see A.M.M. v. Romania, no. 2151/10, § 61, 14 February 2012 and Mikulić, cited above, § 61) or governing the consequences of such non ‑ compliance (ibid.). Nevertheless, while the Court opined that putative sons and daughters have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity, it also considered that it must be borne in mind that the protection of third persons (like the applicant in the present case) may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see Mikulić, cited above, § 64 and Pascaud, cited above, § 62).",
"58. However, in Pascaud (cited above, §§ 63 ‑ 69), the Court held that the protection of the interest of the putative father does not on its own suffice to deprive the applicant (the putative son) of his Article 8 rights. In that case, the fact that the domestic courts had annulled the results of a DNA test (on the basis of a procedural error – namely the lack of explicit consent of the donor of the sample), thus giving precedence to the right of the putative father as opposed to the right of the son to know his origins, gave rise to a breach of Article 8.",
"59. In Tsvetelin Petkov v. Bulgaria (no. 2641/06, § 55, 15 July 2014), where the applicant had been declared the father of the child in proceedings in which he had not participated, and thus in the absence of a DNA test, the Court considered that a DNA test was the scientific method available at the time for accurately determining paternity of a child and its probative value substantially outweighed any other evidence presented by the parties to prove or disprove the biological paternity. Consequently, had the applicant been given an opportunity personally to participate in the court proceedings, he would have been able definitively to settle the matter of paternity by undergoing a DNA test. That would have been in the interest of all parties concerned. Thus, his absence from the proceedings was in breach of his Article 8 rights. This shows that, even in paternity cases, the Court must assess whether the decision ‑ making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see Ahrens v. Germany, no. 45071/09, § 40, 22 March 2012; Kautzor v. Germany, no. 23338/09, § 80, 22 March 2012 and Tsvetelin Petkov, cited above, § 49 et seq.).",
"60. In the context of the use of time-limits for the institution of paternity proceedings, the Court has acknowledged that a putative father’s interest in being protected from claims concerning facts that go back many years cannot be denied, and in addition to that conflict of interest between putative father and child, other interests may come into play, such as those of third parties, essentially the putative father’s family, and the general interest of legal certainty (see Laakso v. Finland, no. 7361/05, § 46, 15 January 2013; see also Konstantinidis v. Greece, no. 58809/09, § 52, 3 April 2014). However, in the context of DNA testing in paternity proceedings, the Court has held that an individual’s interest in discovering his parentage does not disappear with age, quite the reverse (see Pascaud, cited above, § 65, and Jäggi, cited above, § 40).",
"(b) Application to the present case",
"61. Turning to the circumstances of the present case, the Court considers that the order to undergo the DNA test, and the actual testing despite the applicant’s objections, constitute interference with the applicant’s private life (contrast Cakicisoy and Others v. Cyprus (dec.), no. 6523/12, § 51, 23 September 2014 – where the Court found that there was no interference given that the applicants consented voluntarily to give the samples).",
"62. As to whether the measure was lawful, the Court reiterates that according to the Court’s established case ‑ law, the expression “in accordance with the law” requires that the impugned measure should have some basis in domestic law, and also refers to the quality of the law in question, requiring it to be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).",
"63. The applicant argued that the measure was not in accordance with a law of sufficient quality (see paragraph 44 above), because (i) it breached the equality-of-arms principle by making it compulsory for a party to filiation proceedings to adduce evidence against himself, despite the opposing party having been unable to fulfil the burden of proof necessary in civil proceedings, (ii) it was mandatory and therefore not subject to any assessment or discretion by the domestic courts, and (iii) it was unforeseeable as to its consequences where a person refused to submit to the test in question.",
"64. The Court notes that it is not disputed that the interference was ordered pursuant to Article 100A of the Civil Code. In the Court’s view, the remaining questions related to the measure’s lawfulness, such as the consequences of the measure for the proceedings, the automatic nature of the rule and the alleged unforeseeability in certain cases, are closely linked to the issue of proportionality and fall to be examined as an aspect thereof, under paragraph 2 of Article 8 (see, mutatis mutandis, Maskhadova and Others v. Russia, no. 18071/05, § 216, 6 June 2013; T.P. and K.M. v. the United Kingdom, [GC], no. 28945/95, § 72, ECHR 2001-V, and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001-I). Without prejudice to those considerations, the Court is satisfied that the impugned measure was “in accordance with the law” within the meaning of Article 8 of the Convention.",
"65. The Court further considers that the interference pursued a “legitimate aim” – namely the protection of the rights and freedoms of others, in the instant case X’s rights and freedoms. As held by the Constitutional Court in the present case, according to the Court’s case ‑ law, respect for private life requires that everyone should be able to establish details of one’s identity as an individual human being and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others, cited above, § 83). Thus, by providing for such testing, the State was attempting to fulfil its positive obligations towards X",
"66. Nevertheless, the Court must examine whether the required balance was reached in the light of the applicant’s Article 8 rights.",
"67. The Court would note at the outset, as regards the applicant’s criticism of the law, that in cases arising from an individual petition its task is usually not to review the relevant legislation or a particular practice in the abstract. Instead, it must confine itself as far as possible, without losing sight of the general context, to examining the issues raised by the case before it. Here, therefore, the Court’s task is not to review, in abstracto, the compatibility with the Convention of the law at issue, but to determine, in concreto, the effect of the interference on the applicant’s right to private life (see Maskhadova and Others, cited above, § 227 and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 69-70, 20 October 2011).",
"68. In the present case, the applicant complained that the law failed to respect the equality-of-arms principle, both because of the timing of the order and on account of the weight accorded to such evidence.",
"69. The Court cannot agree that, as claimed by the applicant, the order was made at a stage when he had not yet been authorised to submit evidence. The Court notes that the Director of the Public Registry made his request to the court to order the relevant test on 11 February 2013. This was followed by the same request by X on 13 May 2013, after she had submitted all her evidence. At that stage the applicant had already filed his submissions in reply and put forward his defence – there was no procedural impediment on his putting forward his own affidavit, or any other relevant evidence. Nor was this a case where he had asked to submit evidence and been refused. On 22 May 2013 he objected to the test and some days later Y was cross ‑ examined. It follows that both parties had had the opportunity to submit their evidence on equal grounds before the Civil Court (Family Section) until that point in the procedure. Moreover, in the present case, the Civil Court (Family Section) refrained from issuing the order at that stage, precisely in view of the applicant’s arguments and his request to refer the matter to the constitutional jurisdictions – which request it upheld. Indeed, it was only after fully-fledged proceedings before the constitutional jurisdictions, at two instances, that the Civil Court (Family Section) ordered the test (on 18 October 2015), and as argued by the Government (see paragraph 53 above) and as appears from the facts (see paragraph 29 above), at that stage the applicant could still adduce other evidence or challenge the outcome of the test.",
"70. The applicant also complained about the weight given to such evidence and its “self-incriminatory” nature. Firstly, the Court reiterates that a DNA test is the scientific method available (at the time – in the early 2000s – and still today) for accurately determining paternity of a child, and its probative value substantially outweighs any other evidence presented by parties to prove or disprove biological paternity (see Tsvetelin Petkov, cited above, § 55). The Court considers that this in itself does not undermine the rights of the parties to the proceedings; what is of importance is that they are given an opportunity personally to participate in the court proceedings (see, by implication, Tsvetelin Petkov, cited above, § 55). In the present case the applicant had had the opportunity to be personally present, as well as to submit evidence and cross ‑ examine witnesses, although it appeared that he preferred to be represented at the hearings by the lawyer of his choice (contrast, Tsvetelin Petkov, § 12, where the applicant had not participated in the proceedings and was not aware of the judicial pronouncement and the decision not to appeal against it was taken by a lawyer appointed ex-officio ). Thus, in the present case, it cannot be said that the applicant had not been involved in the decision ‑ making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.",
"71. Secondly, the Court observes that, in the criminal sphere Article 8 of the Convention does not as such prohibit recourse to a medical procedure in defiance of the will of a suspect, or in defiance of the will of a witness, in order to obtain evidence (see, respectively, Jalloh v. Germany [GC], no. 54810/00, § 70, ECHR 2006 ‑ IX and Caruana v. Malta, (dec.), no. 41079/16, 15 May 2018). What is of paramount importance is that the measure is in accordance with the relevant Convention requirements (ibid.). Thus, such methods, including in the civil sphere, are not in themselves contrary to the rule of law and natural justice. The Court notes that in such an assessment the legitimate aim is of particular importance and that in the present case, the impugned action was aimed at fulfilling the State’s positive obligations arising under Article 8 of the Convention vis-à-vis X.",
"72. The applicant further argued that the order to submit to the test was mandatory, and that the law did not provide for what consequences would arise in the event that a person refused to submit to the test.",
"73. Primarily, the Court reiterates that it is for the national authorities, notably the courts, to interpret and apply domestic law. It is not its function to interpret domestic law, nor to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention ( Leyla Şahin v. Turkey [GC], no. 44774/98, § 94, ECHR 2005 ‑ XI and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 184, 8 November 2016). The Court notes that under Article 100A the court “may” order such tests. However, when read in connection with Article 70A, it could appear that such courts have no discretion as to whether or not to order the test, save in the case of minors. Indeed, the Constitutional Court, in the present case, admitted that in certain cases an issue may arise as to the compatibility of such an imposed measure with the Convention. It is therefore true that on paper the measure appears to be mandatory; however, the Court is not convinced that in practice a court would order such a test without regard to any other consideration, such as, for example, that a prima facie case was made out. Similarly, the Court cannot ignore that once an order is made, the individual concerned may appeal against such an order. Admittedly, the scope of such an appeal has not been debated before this Court, and thus begs the question as to whether a court hearing such an appeal would be competent to perform a balancing exercise, which would provide a relevant procedural safeguard in circumstances such as those of the present case. Nevertheless, while noting that the law may require fine ‑ tuning, the Court will confine itself to its application in the present case.",
"74. As mentioned previously, in the instant case, the Civil Court (Family Section) refrained from ordering the test when it had been requested to so. Instead it held a hearing to examine the applicant’s objections in this respect. After hearing submissions, it considered that the applicant’s concerns were neither frivolous nor vexatious and referred the applicant’s concerns to the constitutional jurisdictions, which, at two instances, proceeded with an assessment of the interests at stake. They found that the interests of X in determining her paternity outweighed those of the applicant, in the circumstances of the present case (see paragraphs 24 and 25 above). Moreover, the Court finds nothing arbitrary in those decisions, which were taken in the light of this Court’s case ‑ law. Indeed, it was only after fully-fledged constitutional proceedings – undertaken at the applicant’s request – that the test was ordered. This was an avenue open to the applicant (since under Maltese law an individual can also complain of breaches of the Convention which are about to occur), and of which he availed himself in full knowledge of his procedural rights and available safeguards at the domestic level. Thus, while the procedure might be cumbersome (for both the parties and the judicial system) and certainly prolonged the outcome of the civil case, it cannot be said that it did not serve the purpose of examining the interests at stake and determining whether ordering the test would have been in breach of the applicant’s Article 8 rights. It follows that the order to undergo the test in the present case was not made on the basis of its mandatory nature.",
"75. It follows that, in the circumstances of the present case, beyond the parties’ submissions during the civil proceedings, the Civil Court (Family Section) ordering such measure had also had the benefit of two judgments by the constitutional jurisdictions, which balanced the interests of both the party subject to the measure and that of X, who had requested it. The Court consequently finds that the decision ‑ making process, taken as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8. In line with its above-mentioned case ‑ law, the Court is also satisfied that the measure was necessary in a democratic society in order to protects X’s rights.",
"76. Lastly, the applicant claimed that the consequences of a refusal to submit to the test were not foreseeable. The Court notes, however, that the applicant submitted to the test a few days after it was ordered. The applicant has not claimed that the sample had been taken in a manner contrary to the relevant procedure (see, a contrario, Yuriy Volkov v. Ukraine, no. 45872/06, § 87, 19 December 2013) or, in particular by using excessive use of force. In view of the fact that the applicant complied with the order, it cannot be said that he was the victim of any unforeseeable consequences which did not apply to his case.",
"77. In conclusion, the Court finds that, in the present case, by ordering the applicant to undergo a DNA test, after having carried out the requisite balancing exercise of the interests at stake, in judicial proceedings in which the applicant participated through counsel of his own choosing and in which his defence rights were respected on a par with those of his adversary, the domestic courts struck a fair balance between the interests of X to have paternity established and that of the applicant not to undergo the DNA tests.",
"78. Accordingly, there has been no violation of Article 8."
] |
72 | Hoffmann v. Austria | 23 June 1993 | This case concerned the withdrawal of parental rights from the applicant after she divorced the father of their two children, because she was a Jehovah’s Witness. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) of the Convention, finding that the withdrawal of parental authority had been based on a distinction essentially deriving from religious considerations. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Introduction",
"6. Mrs Ingrid Hoffmann is an Austrian citizen residing in Gaissau. She is a housewife.",
"7. In 1980 Mrs Hoffmann - then Miss Berger - married Mr S., a telephone technician. At that time, they were both Roman Catholics.",
"Two children were born to them, a son, Martin, in 1980 and a daughter, Sandra, in 1982. They were baptised as Roman Catholics.",
"8. The applicant left the Roman Catholic Church to become a Jehovah ’ s Witness.",
"9. On 17 October 1983 the applicant instituted divorce proceedings against Mr S. She left him in August or September 1984 while the proceedings were still pending, taking the children with her.",
"The divorce was pronounced on 12 June 1986.",
"B. Proceedings before the Innsbruck District Court",
"10. Following their separation, both the applicant and Mr S. applied to the Innsbruck District Court ( Bezirksgericht ) to be granted parental rights ( Elternrechte ) over the children.",
"Mr S. submitted that if the children were left in the applicant ’ s care, there was a risk that they would be brought up in a way that would do them harm. He claimed that the educational principles of the religious denomination to which the applicant belonged were hostile to society, in that they discouraged all intercourse with non-members, all expressions of patriotism (such as singing the national anthem) and religious tolerance. All this would lead to the children ’ s social isolation. In addition, the Jehovah ’ s Witnesses ’ ban on blood transfusions might give rise to situations in which their life or their health was endangered.",
"With regard to the son, Martin, Mr S. noted that he would eventually have to refuse to perform military service or even the civilian service exacted in its stead.",
"The applicant claimed that she was better placed to take care of the children, being in a position to devote herself to them completely, and as a mother better able to provide them with the necessary family environment. She alleged that Mr S. did not even provide for their maintenance, as he was both legally and morally bound to do. She acknowledged, however, that she intended to bring the children up in her own faith.",
"The youth office of the Innsbruck District Authority ( Bezirkshauptmannschaft, Abteilung Jugendfürsorge ) expressed a preference for granting parental rights to the applicant; it referred to, inter alia, the expert opinion of a child psychologist.",
"11. By decision of 8 January 1986, the District Court granted parental rights to the applicant and denied them to Mr S.",
"According to its reasoning, only the children ’ s well-being fell to be considered. The material living conditions of both parents were such that either of them would be able to take proper care of the children; however, the father would need his mother ’ s help. The children had stronger emotional ties with the applicant, having lived with her for a year and a half already, and separating them from her might cause them psychological harm. It followed that it was preferable to leave the children with the mother.",
"The District Court further observed:",
"\"As against this, it has been stated by the children ’ s father, essentially as his only argument, that Ingrid S. ’ s membership of the religious community of the Jehovah ’ s Witnesses has serious detrimental effects on the children. As to this, it ought to be made clear right away that in no case are parents ’ religious convictions as such a relevant criterion in deciding on parental rights and duties pursuant to Article 177 para. 2 of the Civil Code. These rights cannot be refused to a parent or withheld from him for the sole reason that he or she belongs to a religious minority.",
"However, in the concrete case it needs to be examined whether the mother ’ s religious convictions have a negative influence on her upbringing of the children which should be taken into account and whether their well-being is impaired as a result. It appears in particular that Ingrid S. would not allow blood transfusions to be given to her children; that for herself she rejects communal celebration of such customary holidays as Christmas or Easter; that the children experience a certain tension in relation to an environment which does not correspond to their faith; and that their integration in societal institutions such as kindergarten and school is made more difficult. However, the father ’ s apprehension of complete social isolation as a result of the mother ’ s religion does not appear well-founded in the light of the established facts. In addition, no possible dangers to either child ’ s development have appeared in the course of the establishment of the facts.",
"It is true that the facts adduced (blood transfusions, holidays, impaired social integration) are in principle capable of having detrimental effects on the children. This point must now be examined in the context of the particular case. It appears first of all that the father ’ s argument that Martin and Sandra would be exposed in an emergency to serious danger to their life and health by the refusal of a blood transfusion is not of decisive importance. In the absence of parental permission for a medically necessary blood transfusion to either child, such permission can be replaced by a judicial decision in accordance with Article 176 of the Civil Code (compare the decision of the Innsbruck Regional Court ( Landesgericht ) of 3 July 1979, 4R 128/79). In any case, according to this legal provision, anyone can apply to the court for an order that is necessary to ensure the welfare of the child when the parent endangers it by his conduct. In view of this possibility of applying to the court, which is available at all times, no danger to the children need be inferred from the mother ’ s attitude to blood transfusions.",
"As for Ingrid S. ’ s rejection of holidays, notice must be taken of her express agreement to allow the father to take the children on such occasions and celebrate them with the children as he sees fit. The mother ’ s religious convictions thus do not deprive Martin and Sandra of the possibility of celebrating these holidays in the usual way, so that no detriment to the children can be found in this regard either.",
"Of the reservations with regard to the mother ’ s upbringing of the children resulting from her religion the only remaining one of any significance is the circumstance that Martin and Sandra will in later life experience somewhat more difficulty in finding their way in social groups as a result of the religious precepts of the Jehovah ’ s Witnesses and will find themselves to some extent in a special position. However, the court cannot consider this so detrimental to the children ’ s welfare that they should for that reason not be entrusted to their mother, with whom they have such a close psychological relationship and to whose care they are accustomed. Careful consideration must lead to the conclusion that in spite of more difficult social integration, as discussed above, it appears to be more in the interest of the children ’ s welfare to grant parental rights to the mother than to transfer them to the father.\"",
"C. Proceedings before the Innsbruck Regional Court",
"12. Mr S. appealed against the above decision to the Innsbruck Regional Court ( Landesgericht ).",
"13. The Regional Court rejected the appeal by decision of 14 March 1986. Its grounds for so doing were the following:",
"\"The main thrust of the appeal is to argue that the decision of the first-instance court is incompatible with the children ’ s welfare in view of the mother ’ s membership of the religious community of the Jehovah ’ s Witnesses. In this connection, the appellant discusses the criteria and objectives peculiar to that religious community and the resulting social attitudes, which are in his opinion wrong; it follows, in his view, that both children are bound to suffer harm if the parental rights and duties are assigned to the mother, and in particular that they may be forced into social isolation removed from reality.",
"The appellant ’ s line of argument in this regard is unsound. The Jehovah ’ s Witnesses, formerly known as Serious Bible Students, a community based upon their own interpretation of the Bible, are not outlawed in Austria; it may therefore be assumed that their objectives neither infringe the law nor offend morality (see Article 16 of the Basic Law in conjunction with Article 9 (art. 9) of the European Convention on Human Rights). Therefore, the mother ’ s membership of that religious community cannot of itself constitute a danger to the children ’ s welfare ...",
"Admittedly, the mother ’ s religion will in all probability affect the children ’ s care and upbringing, and they may come to experience a certain tension in relation to an environment which does not correspond to their faith. The first-instance court has already dealt at length with part of the appellant ’ s arguments that relate thereto and has given detailed and conclusive reasons why the father ’ s objections against assigning the parental rights and duties to the mother cannot in the final instance be decisive. The new points raised on appeal - relating to a lack of understanding of democracy and a lack of subordination to the State - cannot cast doubt on the first-instance decision as regards the children ’ s welfare; it suffices in this respect to recall the legal recognition of the religious community of the Jehovah ’ s Witnesses, which meant, contrary to the appellant ’ s allegation, that the first-instance court did not in fact need to seek ex officio an expert opinion on the objectives or the ‘ nature ’ of the Jehovah ’ s Witnesses. Nor were the first-instance proceedings incomplete because no expert medical opinion was sought regarding the question, which was raised anew on appeal, of blood transfusions, which are rejected by the Jehovah ’ s Witnesses; in the event that a judicial remedy (a decision pursuant to Article 176 of the Civil Code) arrives too late, it will in the final instance be up to the physician treating the patient, when confronted with the problem, to reach a decision, with a view in the first place to life-saving medical action and only in the second place taking into account the rejection of blood transfusions which is peculiar to the Jehovah ’ s Witnesses.",
"The appellant ’ s further line of argument - to the effect that a properly arranged transfer of the children to himself and properly arranged visiting rights for the mother could not cause the same shock as had the mother ’ s forcible removal of the children, and that the decision under appeal had legalised her unilateral action - also fails to convince. The appellant overlooks the fact that, in view of the paramount importance of the children ’ s welfare, the way in which they reached the place where they are currently being taken care of is not necessarily decisive. Even illegal conduct would be of relevance only to the extent that it might, in an individual case, be possible to infer therefrom a lack of suitability for care or upbringing; it is not otherwise decisive for determining the attribution of parental rights and duties whether or not the parent concerned has taken charge of the children without authorisation. It remains true, however, that both children have for a long time developed harmoniously in the mother ’ s care, that there is a closer relationship with her than with the father, and that, whatever the religious or philosophical views of the mother, neither child has suffered any harm in his or her physical or - particularly - psychological development; in fact the appellant could not seriously claim that they had actually suffered in the latter respect.\"",
"D. Proceedings before the Supreme Court",
"14. Mr S. lodged an appeal on points of law ( außerordentlicher Revisionsrekurs ) with the Supreme Court ( Oberster Gerichtshof ).",
"15. By decision of 3 September 1986, the Supreme Court overturned the judgment of the Innsbruck Regional Court, granting parental rights to Mr S. instead of the applicant. It gave the following reasons:",
"\"The appellant has not hitherto claimed that the children belonged to the Roman Catholic faith; however, he has stated, and it has in fact been established, that the mother is bringing them up according to the principles of the Jehovah ’ s Witnesses ’ teaching. It is also uncontested that the children do not belong to this confession. The lower courts had therefore to examine whether or not the mother ’ s bringing up the children in this way contravened the provisions of the Federal Law of 1985 on the Religious Education of Children ( Bundesgesetz über die religiöse Kindererziehung ), BGBl ( Bundesgesetzblatt, Federal official Gazette) 1985/155 (re-enactment of the Law of 15 July 1921 on the Religious Education of Children, dRGB ( deutsches Reichsgesetzblatt, German Reich Gazette) I. 939). According to Article 1 of the 1921 Act the religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for his or her care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse. Article 2, paragraph 1, of the 1921 Act lays down that if such an agreement does not or ceases to exist, the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education. However, according to Article 2, paragraph 2 of the 1921 Act, during the existence of the marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up.",
"Since in any case the children do not belong to the faith of the Jehovah ’ s Witnesses, their education according to the principles of this sect (which is not, as the appellant rightly points out, a recognised religious community: see Adamovich -Funk, Österreichisches Verfassungsrecht, [Austrian Constitutional Law], Vol. 3, p. 415) contravenes Article 2, paragraph 2, of the 1921 Act. The Regional Court ’ s failure to apply this provision is obviously in breach of the law.",
"Moreover, the lower courts also failed in their decisions to give due consideration to the children ’ s welfare .... That the mother, as has been established, would refuse to consent to the children ’ s receiving a necessary blood transfusion constitutes a danger to their well-being, since requesting a court to substitute its consent for that of the mother ... may in urgent cases involve a life-threatening delay and medical intervention without seeking the approval of the person entitled to take care of the child is considered contrary to the law .... It has also been established that if the children are educated according to the religious teaching of the Jehovah ’ s Witnesses, they will become social outcasts. In the initial decision as to which of the spouses is to have the right to provide care and upbringing, these circumstances cannot be ignored. Although it is preferable for young children to be taken care of by their mother ..., this applies only provided that all other things are equal .... There is no maternal privilege as regards the attribution of parental right .... The stress caused to the children by being transferred to the care of the other parent, which in any case is usually transitory, has to be accepted in their own best interests .... The file contains no documentary basis for the assumption that a change to another carer ‘ would with a high degree of probability cause the children serious psychological harm ’ .... Even according to the opinion of the lower courts, the father is able to see to the children ’ s upbringing, since they have a good relationship with him and with their grandmother, who would take charge of their care and upbringing during the father ’ s absence at work; the availability of accommodation for the children in the house of the father ’ s parents is assured. Therefore, only transfer of parental rights and duties to the father is in the children ’ s interest.\"",
"II. JEHOVAH ’ S WITNESSES",
"16. Numbering about four million worldwide not counting uninitiated sympathisers, the Jehovah ’ s Witnesses form a particular religious movement. It originated in America in the 1870s. Formerly known by names such as International Bible Students, the Jehovah ’ s Witnesses took their present name in 1931.",
"17. A central feature of Jehovah ’ s Witness doctrine is the belief that the Holy Scriptures in the original Hebrew and Greek are the revealed word of Jehovah God and must therefore be taken as literal truth.",
"The refusal to accept blood transfusions is based on several scriptural references, most notably Acts 15: 28 -29, which reads ( New World translation):",
"\"For the holy spirit and we ourselves have favored adding no further burden to you, except these necessary things, to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication. If you carefully keep yourselves from these things, you will prosper ...\""
] | [
"III. RELEVANT DOMESTIC LAW",
"A. The Civil Code",
"18. Article 177 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) deals with the custody of children in an event such as the dissolution of their parents ’ marriage by divorce. It reads:",
"\"(1) Where the marriage between the parents of a legitimate minor has been dissolved, annulled or declared void, or where the parents are separated other than merely for a temporary period, they may submit to the court an agreement concerning which of them shall in the future have custody of the child. The court shall approve the agreement if it is in the interests of the child ’ s welfare.",
"(2) Where no agreement is reached within a reasonable time, or if the agreement reached is not in the interest of the child ’ s welfare, the court shall decide which parent is to have sole custody of the child in the future; in the case of a separation of the parents which is not merely temporary, such a decision shall be taken only on application by one of them.\"",
"19. Both during and after the parents ’ marriage, the court may be called upon to substitute its approval or consent for that of the parents (or parent). The relevant provision is Article 176, which reads:",
"\"Where the conduct of the parents threatens the welfare of a minor, the court shall be required, irrespective of who has applied to it, to make the orders necessary for the protection of the child ’ s welfare. Such an order may also be made on application by one of the parents when the parents have failed to reach an agreement concerning a matter of importance to the child. In particular the court may withdraw custody of a child, either wholly or in part, including rights of approval and consent provided by law. In individual cases the court is also required to substitute its approval or consent for parental approval or consent required by law, when there is no justified reason for refusal.\"",
"20. In taking decisions under Articles 176 and 177, the courts follow the criteria set out in Article 178a, which reads:",
"\"In assessing the interests of the minor, his or her personality and needs must be duly taken into consideration, particularly his or her talents, abilities, inclinations and developmental opportunities, as well as the material circumstances of the parents.\"",
"B. Regulation of religious life",
"21. Religious freedom is guaranteed by Article 14 of the Basic Law ( Staatsgrundgesetz ), which reads:",
"\"(1) Complete freedom of beliefs and conscience is guaranteed to everyone.",
"(2) Enjoyment of civil and political rights shall be independent of religious confessions; however, a religious confession may not stand in the way of civic duties.",
"(3) No one shall be compelled to take any church-related action or to participate in any church-related celebration, except in pursuance of a power conferred by law on another person to whose authority he is subject.\"",
"22. Austria has a system of recognition of religious communities. It is governed by the Act of 20 May 1874 concerning the Legal Recognition of Religious Communities ( Gesetz betreffend die gesetzliche Anerkennung von Religionsgesellschaften ), RGBl ( Reichsgesetzblatt, Official Gazette of the Austrian Empire) 1874/68. Only five religious communities are so recognised, among them the Roman Catholic Church but not the Jehovah ’ s Witnesses. Religious groupings without legal recognition have legal personality as \"societies\" ( Vereine ) under the general law.",
"23. The religious education of children is governed by the Federal Act on the Religious Education of Children, which re-enacted a German law dating from 1921 that was incorporated into Austrian law in 1939 (see paragraph 15 above).",
"Article 1 reads:",
"\"The religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for the child ’ s care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse.\"",
"Article 2 reads:",
"\"(1) If such an agreement does not or ceases to exist,the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education.",
"(2) During the existence of their marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of their marriage or from that in which he or she has hitherto been brought up, or that a child is to cease to attend religious education classes.",
"(3) In the absence of such consent, application may be made for the mediation of, or a decision by, the guardianship court. In any such decision the interests of education shall be paramount even in cases not covered by Article 176 of the Civil Code. Before the decision is taken the child ’ s parents, and if necessary relatives, relatives by marriage and teachers, must be heard if this is possible without significant delays or disproportionate costs. The child itself must be heard if it has reached the age of ten.\"",
"C. Medical action",
"24. The need for parental permission for administering blood transfusions to minors follows from the law governing medical action in general.",
"Thus, the Hospitals Act ( Krankenanstaltengesetz ), BGBl 1/1957, lays down in Article 8:",
"\"(1)...",
"(2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science.",
"(3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment.\"",
"25. It is a criminal offence to administer medical treatment without the requisite consent; this follows from Article 110 of the Criminal Code ( Strafgesetzbuch ), which reads:",
"\"(1) Whoever treats another person, even according to the rules of medical science, without having obtained that person ’ s consent, shall be liable to imprisonment for up to six months or to a fine of up to 360 daily rates.",
"(2) If the offender has failed to obtain the consent of the patient because he assumed that a delay in the treatment would entail a serious risk for the life or health of the patient, he shall be punished according to paragraph 1 only if the assumed risk did not exist and if by taking due care ... he could have been aware of this.",
"(3) The offender shall be punished only at the request of the person who underwent unauthorised treatment.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"26. Mrs Hoffmann applied to the Commission on 20 February 1987. She complained that she had been denied custody of the children on the ground of her religious convictions. She invoked her right to respect for her family life (Article 8 of the Convention) (art. 8), her right to freedom of religion (Article 9) (art. 9) and her right to ensure the education of her children in conformity with her own religious convictions (Article 2 of Protocol No. 1) (P1-2); she further claimed that she had been discriminated against on the ground of religion (Article 14) (art. 14).",
"27. The application (no. 12875/87) was declared admissible on 10 July 1990. In its report of 16 January 1992 (Article 31) (art. 31), the Commission expressed the opinion:",
"(a) by eight votes to six, that there had been a violation of Article 8 read in conjunction with Article 14 (art. 14+8);",
"(b) by twelve votes to two, that no separate issue arose in regard to Article 9 (art. 9) taken separately or in conjunction with Article 14 (art. 14+9);",
"(c) unanimously, that there had been no violation of Article 2 of Protocol No. 1 (P1-2).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 (art. 14+8)",
"28. The applicant complained that the Austrian Supreme Court had awarded parental rights over the children Martin and Sandra to their father in preference to herself, because she was a member of the religious community of Jehovah ’ s Witnesses; she claimed a violation of her rights under Article 8 (art. 8) of the Convention, both taken alone and read in conjunction with Article 14 (art. 14+8).",
"The Government denied that there had been a violation at all, whereas the Commission agreed that there had been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8).",
"29. According to Article 8 para. 1 (art. 8-1) of the Convention, \"Everyone has the right to respect for his private and family life, his home and his correspondence.\"",
"The Court notes at the outset that the children had lived with the applicant for two years after she had left with them before the judgment of the Supreme Court of 3 September 1986 compelled the applicant to give them up to their father. The Supreme Court ’ s decision therefore constitutes an interference with the applicant ’ s right to respect for her family life and the case thus falls within the ambit of Article 8 (art. 8). The fact relied on by the Government in support of the opposite view, namely that the Supreme Court ’ s decision was taken in the context of a dispute between private individuals, makes no difference in this respect.",
"A. Alleged violation of Article 8 taken in conjunction with Article 14 (art. 14+8)",
"30. In view of the nature of the allegations made, the Court, like the Commission, considers it appropriate to examine the present case under Article 8 taken in conjunction with Article 14 (art. 14+8), which reads as follows:",
"\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"",
"31. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 (art. 14) affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, amongst other authorities, the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 32, para. 58).",
"It must first be determined whether the applicant can claim to have undergone different treatment.",
"32. In awarding parental rights - claimed by both parties - to the mother in preference to the father, the Innsbruck District Court and Regional Court had to deal with the question whether the applicant was fit to bear responsibility for the children ’ s care and upbringing. In so doing they took account of the practical consequences of the religious convictions of the Jehovah ’ s Witnesses, including their rejection of holidays such as Christmas and Easter which are customarily celebrated by the majority of the Austrian population, their opposition to the administration of blood transfusions, and in general their position as a social minority living by its own distinctive rules. The District and Regional Courts took note of the applicant ’ s statement to the effect that she was prepared to allow the children to celebrate holidays with their father, who had remained Roman Catholic, and to allow the administration of blood transfusions to the children if and when required by law; they also considered the psychological relationship existing between the children (who were very young at the time) and the applicant and her general suitability as a carer.",
"In assessing the interests of the children, the Supreme Court considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to the applicant ’ s total rejection of blood transfusions not only for herself but - in the absence of a court order - for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah ’ s Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them psychological stress, which in its opinion had to be accepted in their own best interests.",
"33. This Court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children (see paragraphs 15 and 23 above). This factor was clearly decisive for the Supreme Court.",
"The European Court therefore accepts that there has been a difference in treatment and that that difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court ’ s considerations regarding the practical consequences of the applicant ’ s religion.",
"Such a difference in treatment is discriminatory in the absence of an \"objective and reasonable justification\", that is, if it is not justified by a \"legitimate aim\" and if there is no \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, amongst other authorities, the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 31).",
"34. The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children; it must now be examined whether the second requirement was also satisfied.",
"35. In the present context, reference may be made to Article 5 of Protocol No. 7 (P7-5), which entered into force for Austria on 1 November 1988; although it was not prayed in aid in the present proceedings, it provides for the fundamental equality of spouses inter alia as regards parental rights and makes it clear that in cases of this nature the interests of the children are paramount.",
"36. In so far as the Austrian Supreme Court did not rely solely on the Federal Act on the Religious Education of Children, it weighed the facts differently from the courts below, whose reasoning was moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable.",
"The Court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8).",
"B. Alleged violation of Article 8 (art. 8) taken alone",
"37. In view of the conclusion reached in paragraph 36 above, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 (art. 8) taken alone; the arguments advanced in this respect are in any case the same as those examined in respect of Article 8 taken in conjunction with Article 14 (art. 14+8).",
"II. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)",
"38. The Court considers, as did the Commission, that no separate issue arises under Article 9 (art. 9) either taken alone or read in conjunction with Article 14 (art. 14+9), since the factual circumstances relied on as the basis of this complaint are the same as those which are at the root of the complaint under Article 8 taken in conjunction with Article 14 (art. 14+8), of which a violation has been found.",
"III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)",
"39. The applicant ’ s complaint under Article 2 of Protocol No. 1 (P1-2) was not pursued before the Court, which finds no reason to examine it of its own motion.",
"IV. APPLICATION OF ARTICLE 50 (art. 50)",
"40. According to Article 50 (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"The applicant made no claim in respect of non-pecuniary damages but she claimed ATS 75,000 in respect of costs and expenses actually incurred before the Convention organs and not covered by legal aid.",
"The Commission expressed no opinion as to this claim. The Government found it acceptable; the Court agrees."
] |
73 | Salgueiro da Silva Mouta v. Portugal | 21 December 1999 | The applicant – a homosexual living with another man – was prevented by his ex-wife from visiting his daughter, in breach of an agreement reached at the time of their divorce. He complained of an unjustified interference with his right to respect for his private and family life, as guaranteed by Article 8 of the Convention and discrimination contrary to Article 14 of the Convention. He maintained, too, that contrary to Article 8 he had been forced by the court of appeal to hide his homosexuality when seeing his daughter. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Portuguese courts’ decision had been largely based on the fact that the applicant was a homosexual and that “the child should live in a traditional Portuguese family”. That distinction, based on considerations relating to sexual orientation, was not acceptable under the Convention. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicant is a Portuguese national born in 1961. He lives in Queluz ( Portugal ).",
"9. In 1983 the applicant married C.D.S. On 2 November 1987 they had a daughter, M. The applicant separated from his wife in April 1990 and has since then been living with a man, L.G.C. Following divorce proceedings instituted by C.D.S., the divorce decree was pronounced on 30 September 1993 by the Lisbon Family Affairs Court ( Tribunal de Família ).",
"10. On 7 February 1991, during the divorce proceedings, the applicant signed an agreement with C.D.S. concerning the award of parental responsibility ( poder paternal ) for M. Under the terms of that agreement C.D.S. was to have parental responsibility and the applicant a right to contact. However, the applicant was unable to exercise his right to contact because C.D.S. did not comply with the agreement.",
"11. On 16 March 1992 the applicant sought an order giving him parental responsibility for the child. He alleged that C.D.S. was not complying with the terms of the agreement signed on 7 February 1991 since M. was living with her maternal grandparents. The applicant submitted that he was better able to look after his child. In her memorial in reply C.D.S. accused L.G.C. of having sexually abused the child.",
"12. The Lisbon Family Affairs Court delivered its judgment on 14 July 1994 after a period in which the applicant, M., C.D.S., L.G.C. and the child’s maternal grandparents had been interviewed by psychologists attached to the court. The court awarded the applicant parental responsibility, dismissing as unfounded – in the light of the court psychologists’ reports – C.D.S.’s allegations that L.G.C. had asked M. to masturbate him. It also found, again in the light of the court psychologists’ reports, that statements made by M. to that effect appeared to have been prompted by others. The court added:",
"“The mother continues to be most uncooperative and it is wholly improbable that her attitude will change. She has repeatedly failed to comply with the Court’s decisions. The finding is inescapable that [the mother] has not shown herself capable at present of providing M. with conditions conducive to the balanced and calm life she needs. The father is at present better able to do so. In addition to providing the economic and living conditions necessary to have the child with him, he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents.”",
"13. M. stayed with the applicant from 18 April to 3 November 1995, when she was allegedly abducted by C.D.S. The applicant reported the abduction and criminal proceedings are pending in that connection.",
"14. C.D.S. appealed against the Family Affairs Court’s judgment to the Lisbon Court of Appeal ( Tribunal da Relação ), which gave judgment on 9 January 1996, reversing the lower court’s judgment and awarding parental responsibility to C.D.S., with contact to the applicant. The judgment was worded as follows.",
"“In the proceedings for the award of parental responsibility for the child M., born on 2 November 1987, daughter of [the applicant] and C.D.S., the decision given on 7 February 1991 confirmed the agreement between the parents as to parental responsibility for the child, contact and the amount of maintenance payable by the father, since custody of M. was awarded to the mother.",
"On 16 March 1992 [the applicant] applied for a variation of the order granting parental responsibility, alleging that the child was not living with her mother in accordance with what had been decided, but with her maternal grandparents, which – he argued – was unsatisfactory. It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him.",
"The child’s mother not only opposed the application lodged by the applicant, but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man. After a number of steps had been taken in connection with those proceedings, the following decision was given on 14 July 1994 :",
"‘1. Custody and care of the child is awarded to the father, in whom parental responsibility shall be vested.",
"2. The child may see her mother on alternate weekends, from Friday to Monday. Her mother shall collect her from school on the Friday and bring her back to school on Monday morning before lessons start.",
"3. The child may also see her mother every Tuesday and Wednesday; her mother shall fetch her from school after lessons and bring her back the following morning.",
"4. The child shall spend Christmas Eve and Christmas Day alternately with her father and her mother.",
"5. The child shall spend the Easter holidays with her mother.",
"6. During the school summer holidays the child shall spend thirty days with her mother. The dates must be agreed on with the father at least sixty days beforehand.",
"7. The mother shall pay the father maintenance of 30,000 escudos per month, payable before the 8th of every month. Those maintenance payments shall be adjusted once annually on the basis of the inflation index for the previous year published by the INE (National Institute of Statistics).’",
"That decision specifically governed arrangements applicable to the year 1994. C.D.S., who was dissatisfied with the decision, appealed. She had previously appealed against the decision appearing on page 238, which dismissed an application for a stay of the proceedings, and the decision given at the hearing of 29 April 1994 on the application for an examination of the document appearing on page 233; both those appeals were adjourned and did not have the effect of staying the proceedings.",
"The appellant sets out the following grounds in her appeal:",
"…",
"In his pleadings [the applicant] submitted that the judgment of the first-instance court should be upheld.",
"State Counsel attached to the Court of Appeal has recommended that the decision be set aside, but not on the grounds relied on by the appellant.",
"After examining the case, we shall give our decision.",
"We shall first examine the following facts, which the first-instance court considered to be established.",
"1. The child, M., who was born on 2 November 1987, is the daughter of [the applicant] and C.D.S.",
"2. Her parents married on 2 April 1983.",
"3. Divorce was granted on 30 September 1993 and their marriage dissolved.",
"4. The parents have been living separately since April 1990, when [the applicant] left his home to go and live with another man, whose first name is L.",
"5. On 7 March 1991 the Loures Court gave a decision in case no. 1101/90 confirming the following agreement on the exercise of parental responsibility for the child:",
"‘I. The mother shall have custody of the child.",
"II. The father may visit his daughter whenever he likes provided that he does not disrupt her schooling.",
"III. The child shall spend alternate weekends and Christmas and Easter with her father.",
"IV. The child shall spend the father’s holidays with him unless those holidays coincide with those of the mother, in which case the child shall spend fifteen days with each parent.",
"V. On the weekends which the child spends with her father, he shall collect her from her mother’s house on Saturday at about 10 a.m. and bring her back on Sunday at about 8 p.m.",
"VI. The child shall go to a kindergarten as soon as possible, the enrolment fees to be paid by the father.",
"VII. The father shall pay maintenance of 10,000 escudos per month, which shall be adjusted once annually by the same percentage as the net increase in his salary. That sum shall be paid into the account of the child’s mother – account no. …– before the 5th day of the following month.",
"VIII. The father shall also pay half his daughter’s kindergarten fees.",
"IX. The father shall pay half of any special expenses for his child’s health.’",
"6. From April 1992 the child stopped seeing her father on the agreed terms, against his wishes.",
"7. Until January 1994 the child lived with her maternal grandparents [name] at Camarate [address].",
"8. From that date the child went to live with her mother and her mother’s boyfriend [address] in Lisbon.",
"9. She continued, however, to stay overnight at her maternal grandparents’ house from time to time.",
"10. On schooldays when the child did not stay overnight with her grandparents, her mother used to drive her to her grandparents’ house where she used to stay after school from 5 p.m.",
"11. During that school year M. was in the first year primary at … school, for which the fees came to 45,400 escudos per month.",
"12. Her mother has been cohabiting with J. for at least two years.",
"13. J., who is a business manager, works in the imports and exports sector, the major part of his activity being in Germany where he has immigrant status. His income amounts to some 600,000 escudos per month.",
"14. The mother, C.D.S., is the manager of DNS, the partners of which are her boyfriend and his brother, J.P.",
"15. She has been registered with the State agency for employment and vocational training since 17 February 1994.",
"16. Her expenses are paid for jointly by herself and her boyfriend.",
"17. She states that she pays 120,000 escudos in rent and spends approximately 100,000 escudos per month on food.",
"18. The father, João Mouta, is in a homosexual relationship with L.G.C., with whom he has been living since April 1990.",
"19. He is the head of his sector at A., and his net monthly income, plus commission, comes to just over 200,000 escudos.",
"20. The child is very close to her maternal grandmother, who is a Jehovah’s Witness.",
"21. Following her failure to comply with the decision referred to in paragraph 5, the child’s mother was ordered, on 14 May 1993, to pay a fine of 30,000 escudos because since April 1992 she had been refusing to allow the father to exercise his ‘right to contact with his daughter in accordance with the decision given’.",
"22. On 25 June 1994, after interviewing the father and mother both individually and together, and M. without her parents or her maternal grandmother being present, and the maternal grandmother and the father’s partner individually, and performing a psychological examination of M., the court psychologists drew up the following report:",
"‘M. is a communicative child of normal intellectual development for her age and above average intelligence. She is very attached to her father and mother, and the conflict between her parents is a source of some insecurity. She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this. She has a very good relationship with her father, who is very affectionate and attentive towards his daughter. Both [the applicant] and his ex-wife are affectionate and flexible parents and both invest in their daughter’s upbringing and emotional security. The reasons for their separation were subsequently a source of substantial conflict between them, exacerbated by M.’s maternal grandmother, who does not accept [the applicant’s] lifestyle and unconsciously tries to keep him away from his daughter. To sum up, both parents are capable of overseeing their daughter’s satisfactory psychoaffective development, but we do not feel that it is right for her to live with her grandmother, who exacerbates the conflict between the two parties and fuels it by trying to keep [the applicant] away because she does not accept his lifestyle.’",
"23. On 16 August 1993 M. told the psychologist and her father that the latter’s partner had asked her, while her father was out, to go into the bathroom with him, that he had locked the door and asked her to masturbate him (she made gestures imitative of masturbation) and then told her that she did not need to wash her hands and that she should not say anything to her father. The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story, which might have been suggested by repeated promptings. She added that while the daughter was describing the episode, the applicant had been understanding and asked for clarification, which confirmed that the father and daughter had a good relationship.",
"24. During the interview with the psychologist on 6 December 1993 the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her.",
"25. In a report dated 17 January 1994, drawn up following a meeting between the daughter and her father, the psychologist concluded that ‘although M. has observed during her meetings with her father that he is living with another man, her parental images have been fully assimilated and she presents no problem relating to psychosexual identity, be it her own or that of her parents’.",
"26. Dr V., a psychiatrist, stated, after interviewing the boyfriend of [the applicant], the child’s father, that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development. He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child’s father. He considered it wholly improbable that the episode related by the child, as described in paragraph 23, had really occurred.",
"27. The final report drawn up by the court psychologists, dated 12 April 1994, indicated that M. was suffering from a degree of insecurity due in part to the conflict between her mother’s side of the family and her father, and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations. The child is aware that her family opposes her meetings with her father, their opposition being justified by the child’s description of an episode which had allegedly occurred between her and her father’s boyfriend, L.G.C., in which L.G.C. had asked her to masturbate him. With regard to that account, it is difficult to imagine how a 6-year-old child could relate in detail an episode which had occurred several years earlier. The experts conclude in their report that the fact that M. had described in detail the above-mentioned masturbation episode did not mean that it had actually occurred. They reiterate that the father is a very affectionate father, full of understanding and kindness towards his daughter, while also imposing on her, satisfactorily and instructively, limits which were necessary and made her feel secure.",
"The experts also reiterate that the child’s mother is a very affectionate mother, but rather permissive, which is not conducive to a feeling of security, although she is capable of improving. They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father, but excludes him on grounds of the individual and emotional choices he has made. This has contributed to sowing confusion in the child’s mind and exacerbating her sense of conflict and anxiety, thus compromising her healthy psychoaffective development.",
"28. At the hearing on 24 January 1994 the following interim decision was given with the agreement of both parents: (I) M. could spend every Saturday from 10 a.m. to 10 p.m. with her father, (II) to that end, her father would fetch her from her mother’s house accompanied by her paternal grandmother and/or her paternal great-grandmother.",
"29. The mother did not allow her daughter to see her father on the terms fixed by the above-mentioned decision.",
"30. On 22 April 1994 the child psychiatry department of D. Estefânea Hospital decided that M. should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development.",
"Those facts, found at first instance, are considered to have been definitively established, without prejudice to the possibility of considering a further factor in delivering this judgment. With regard to the other appeals, since the mother has not submitted any pleadings they are considered to be inoperative under Articles 292 § 1 and 690 § 2 of the Code of Civil Procedure. Apart from the fact that factual evidence has not been submitted, these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case, that is to which of the two parents custody of the child should be awarded. The shortcomings in the decision referred to by State Counsel, although relevant, do not warrant setting it aside.",
"Let us now examine the appeal:",
"Article 1905 § 1 of the Civil Code provides that in cases of divorce, judicial separation of persons and possessions, declarations of nullity or annulment of marriage, child custody, maintenance and the conditions of payment are governed by agreement between the parents, that agreement being subject to confirmation by the court; confirmation is refused if the agreement is contrary to the child’s interests, including the child’s interest in maintaining a very close relationship with the non-custodial parent. Paragraph 2 adds that, in the absence of an agreement, the court shall decide, while protecting the child’s interests, including his or her interest in maintaining a very close relationship with the non-custodial parent, it being possible to award custody of the child to one or other parent or, if one of the cases provided for in Article 1918 applies, to a third party or to an educational or welfare establishment.",
"The Guardianship Act also deals with this point. Section 180(1) of that Act provides that any award of parental responsibility must be in the child’s interests.",
"A judgment of the Lisbon Court of Appeal of 24 April 1974, summarised in BMJ ( Bulletin of the Ministry of Justice ) no. 236, p. 189, states: ‘The Convention on the Rights of the Child – Resolution of 20 November 1989 of the General Assembly of the United Nations – proclaims with rare concision that children, for the full and harmonious development of their personality, require love and understanding; they should, as far as possible, grow up under the protection and responsibility of their parents and, in any event, in a climate of affection and psychological and material security, with young children not being separated from their mother save in exceptional cases.’",
"We do not have the slightest hesitation in supporting that declaration, which fully corresponds to the realities of life. Despite the importance of paternal love, a young child needs the care which only the mother’s love can provide. We think that M., who is now aged 8, still needs her mother’s care. See on this point the judgment of the Porto Court of Appeal of 7 June 1988, in BMJ no. 378, p. 790, in which that court held that ‘in the case of young children, that is until 7 or 8 years of age, the emotional tie to the mother is an essential factor in the child’s psychological and emotional development, given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father’s affection and interest’.",
"The relationship between M. and her parents is a decisive factor in her emotional well-being and the development of her personality, particularly as it has been demonstrated that she is deeply attached to her parents, just as it has been shown that both of them are capable of guiding the child’s psychoaffective development.",
"In the official record of the decision of 5 July 1990 awarding parental responsibility, [the applicant] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother, a statement he repeated in the present proceedings to vary that order, as recorded in the transcript of the hearing of 15 June 1992, declaring that he wished to waive his initial application for custody of the child because she was living with her mother again. M.’s father expresses the wish that his daughter not stay with her maternal grandparents, referring to the numerous difficulties he encounters when trying to see his daughter, given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality.",
"Section 182 of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [to vary] the terms. Consideration needs to be given, however, to whether there is a justified ground for varying the decision awarding custody of the child to her mother.",
"On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are Jehovah’s Witnesses. The truth of the matter, however, is that [the applicant] has not produced any evidence to prove that this religion is harmful and has merely stressed the grandparents’ stubborn refusal to allow the father and daughter to see each other. To the Court’s knowledge, the beliefs of Jehovah’s Witnesses do not incite to evil practices, although fanaticism does exist.",
"Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the parents’ agreement?",
"There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father’s right to contact and that she shows no respect for the courts trying the case, since on several occasions, and without any justification, she has failed to attend interviews to which she has been summoned in the proceedings. We think, however, that her conduct is due not only to [the applicant]’s lifestyle, but also to the fact that she believed the indecent episode related by the child, implicating the father’s partner.",
"On this point, which is particularly important, we agree that it is not possible to accept as proven that such an episode really occurred. However, we cannot rule out the possibility that it did occur. It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of M.’s father would never be capable of the slightest indecency towards M. Thus, although it cannot be asserted that the child told the truth or that she was not manipulated, neither can it be concluded that she was telling an untruth. Since there is evidence to support both scenarios, it would be wrong to give greater credence to one than the other.",
"In the same way, the accepted principle in cases involving awards of parental responsibility is that the child’s interests are paramount, completely irrespective of the – sometimes selfish – interests of the parents. In order to establish what is in the child’s interests, a court must in every case take account of the dominant family, educational and social values of the society in which the child is growing up.",
"As we have already stated and as established case-law authority provides, having regard to the nature of things and the realities of daily life, and for reasons relating to human nature, custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see the Evora Court of Appeal’s judgment of 12 July 1979, in BMJ no. 292, p. 450).",
"In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her, we repeat, following an agreement between the parents, and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority. The question which therefore arises, and this should be stressed, is not really which of the two parents should be awarded custody of M., but rather whether there are reasons for varying what was agreed.",
"Even if that were not the case, however, we think that custody of the child should be awarded to the mother.",
"The fact that the child’s father, who has come to terms with his homosexuality, wishes to live with another man is a reality which has to be accepted. It is well known that society is becoming more and more tolerant of such situations. However, it cannot be argued that an environment of this kind is the healthiest and best suited to a child’s psychological, social and mental development, especially given the dominant model in our society, as the appellant rightly points out. The child should live in a family environment, a traditional Portuguese family, which is certainly not the set-up her father has decided to enter into, since he is living with another man as if they were man and wife. It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations; such are the dictates of human nature and let us remember that it is [the applicant] himself who acknowledged this when, in his initial application of 5 July 1990, he stated that he had definitively left the marital home to go and live with a boyfriend, a decision which is not normal according to common criteria.",
"No doubt is being cast on the father’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care, for it is essential that they do see each other if the objectives set out above are to be met, that is ensuring the child’s well-being and the development of her personality. M. needs to visit her father if her feelings of anxiety and insecurity are to be dissipated. When children are deprived of contact with their father, their present and future development and psychological equilibrium are put at risk. The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility.",
"At present, the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision.",
"Accordingly, we reverse the judgment of the lower court as regards the child’s permanent residence with her father, without prejudice to the father’s right to contact during the periods which will be stipulated below.",
"It should be impressed upon the father that during these periods he would be ill-advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife.",
"For all the foregoing reasons the Court of Appeal reverses the impugned decision and rules that the appellant, C.D.S., shall continue to exercise parental responsibility for her daughter, M.",
"The contact arrangements shall be established as follows:",
"1. The child may see her father on alternate weekends from Friday to Monday. To that end the father shall fetch his daughter from school at the end of classes on the Friday and bring her back on Monday morning before classes start.",
"2. The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling.",
"3. The child shall spend the Easter holidays alternately with her father and her mother.",
"4. The Christmas holidays shall be divided into two equal parts: half to be spent with the father and the other half with the mother, but in such a way that the child can spend Christmas Eve and Christmas Day with one and New Year with the other alternately.",
"5. During the summer holidays the child shall spend thirty days with her father during the latter’s holidays, but if that period coincides with the mother’s holidays the child shall spend fifteen days with each of them.",
"6. During the Easter, Christmas and summer holidays the father shall fetch the child from the mother’s house and bring her back between 10 a.m. and 1 p.m. unless the parents agree on different times.",
"7. In accordance with the date of this decision, the child shall spend the next Easter and Christmas holidays with the parent with whom she did not spend those holidays in 1995.",
"8. The matter of maintenance payable by the father and the manner of payment shall be examined by the Third Section of the Third Chamber of the Lisbon Family Affairs Court in case no. 3821/A, which has been adjourned pending the present decision regarding the child’s future.",
"Costs are awarded against the respondent.”",
"15. One of the three Court of Appeal judges gave the following separate opinion:",
"“I voted in favour of this decision, with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation, which – accordingly – cannot, as such, in any circumstances be described as abnormal. The right to be different should not be treated as a ‘right’ to be ghettoised. It is not therefore a matter of belittling the fact that [the applicant] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter, but rather, since a decision has to be given, of affirming that it cannot be declared in our society and in our era that children can come to terms with their father’s homosexuality without running the risk of losing their reference models.”",
"16. No appeal lay against that decision.",
"17. The right to contact granted to the applicant by the judgment of the Lisbon Court of Appeal was never respected by C.D.S.",
"18. The applicant therefore lodged an application with the Lisbon Family Affairs Court for enforcement of the Court of Appeal’s decision. On 22 May 1998, in connection with those proceedings, the applicant received a copy of a report drawn up by the medical experts attached to the Lisbon Family Affairs Court. He learnt from this that M. was in Vila Nova de Gaia in the north of Portugal. The applicant made two unsuccessful attempts to see his daughter. The enforcement proceedings are apparently still pending."
] | [
"ii. Relevant domestic law",
"19. Article 1905 of the Civil Code provides:",
"“1. In the event of divorce …, child custody, maintenance and the terms of payment shall be determined by agreement between the parents, which is subject to confirmation by the ... court",
"…",
"2. In the absence of an agreement, the court shall decide on the basis of the interests of the child, including the child’s interest in maintaining a very close relationship with the non-custodial parent ...”",
"20. Certain provisions of the Guardianship Act are also relevant to the instant case.",
"Section 180",
"“1. ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child, custody of whom may be awarded to one of the parents, a third party or an educational or welfare establishment.",
"2. Contact arrangements shall be made unless, exceptionally, this would not be in the child’s interests ...”",
"Section 181",
"“If one of the parents does not comply with the agreement or decision reached in respect of the child’s situation, the other parent may apply to the court for enforcement ...”",
"Section 182",
"“If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms, one of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ...”",
"THE LAW",
"i. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14",
"21. The applicant complained that the Lisbon Court of Appeal had based its decision to award parental responsibility for their daughter, M., to his ex-wife rather than to himself exclusively on the ground of his sexual orientation. He alleged that this constituted a violation of Article 8 of the Convention taken alone and in conjunction with Article 14.",
"The Government disputed that allegation.",
"22. Under Article 8 of the Convention,",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"The Court notes at the outset that the judgment of the Court of Appeal in question, in so far as it set aside the judgment of the Lisbon Family Affairs Court of 14 July 1994 which had awarded parental responsibility to the applicant, constitutes an interference with the applicant’s right to respect for his family life and thus attracts the application of Article 8. The Convention institutions have held that this provision applies to decisions awarding custody to one or other parent after divorce or separation (see the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29; see also Irlen v. Germany, application no. 12246/86, Commission decision of 13 July 1987, Decisions and Reports 53, p. 225).",
"That finding is not affected by the Government’s submission that since the judgment of the Court of Appeal did not ultimately vary what had been decided by friendly settlement between the parents on 7 February 1991, there was no interference with the rights of Mr Salgueiro da Silva Mouta.",
"The Court observes in that connection that the application lodged – successfully – by the applicant with the Lisbon Family Affairs Court was based on, among other things, the fact that his ex-wife had failed to comply with the terms of that agreement (see paragraph 11 above).",
"A. Alleged violation of Article 8 taken in conjunction with Article 14",
"23. Given the nature of the case and the allegations of the applicant, the Court considers it appropriate to examine it first under Article 8 taken in conjunction with Article 14, according to which",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"24. Mr Salgueiro da Silva Mouta stressed at the outset that he had never disputed the fact that his daughter’s interests were paramount, one of the main ones consisting in seeing her father and being able to live with him. He argued, nonetheless, that the Court of Appeal’s judgment, in awarding parental responsibility to the mother exclusively on the basis of the father’s sexual orientation, amounted to an unjustifiable interference with his right to respect for his family life. The applicant submitted that the decision in issue had been prompted by atavistic misconceptions which bore no relation to the realities of life or common sense. In doing so, he argued, the Court of Appeal had discriminated against him in a manner prohibited by Article 14 of the Convention.",
"The applicant pointed out that judgment had been given in his favour by the court of first instance, that court being the only one to have had direct knowledge of the facts of the case since the Court of Appeal had ruled solely on the basis of the written proceedings.",
"25. The Government acknowledged that Article 8 could apply to the situation in question, but only as far as the applicant’s right to respect for his family life with his child was concerned. They stressed, however, that no act had been done by a public authority which could have interfered with the applicant’s right to the free expression and development of his personality or the manner in which he led his life, in particular his sexual life.",
"With regard to family life, however, the Government pointed out that, as far as parental responsibility was concerned, the Contracting States enjoyed a wide margin of appreciation in respect of the pursuit of the legitimate aims set out in paragraph 2 of Article 8 of the Convention. They added that in this field, in which the child’s interests were paramount, the national authorities were naturally better placed than the international court. The Court should not therefore substitute its own interpretation of things for that of the national courts, unless the measures in question were manifestly unreasonable or arbitrary.",
"In the instant case the Lisbon Court of Appeal had taken account, in accordance with Portuguese law, of the child’s interests alone. The intervention of the Court of Appeal had been prescribed by law (Article 1905 § 2 of the Civil Code and sections 178 to 180 of the Guardianship Act). Moreover, it had pursued a legitimate aim, namely the protection of the child’s interests, and was necessary in a democratic society.",
"The Government concluded that the Court of Appeal, in reaching its decision, had had regard exclusively to the overriding interests of the child and not to the applicant’s sexual orientation. The applicant had not therefore been discriminated against in any way.",
"26. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see the Hoffmann judgment cited above, p. 58, § 31).",
"It must be determined whether the applicant can complain of such a difference in treatment and, if so, whether it was justified.",
"1. Existence of a difference in treatment",
"27. The Government disputed the allegation that in the instant case the applicant and M.’s mother had been treated differently. They argued that the Lisbon Court of Appeal’s decision had been mainly based on the fact that, in the circumstances of the case, the child’s interests would be better served by awarding parental responsibility to the mother.",
"28. The Court does not deny that the Lisbon Court of Appeal had regard above all to the child’s interests when it examined a number of points of fact and of law which could have tipped the scales in favour of one parent rather than the other. However, the Court observes that in reversing the decision of the Lisbon Family Affairs Court and, consequently, awarding parental responsibility to the mother rather than the father, the Court of Appeal introduced a new factor, namely that the applicant was a homosexual and was living with another man.",
"The Court is accordingly forced to conclude that there was a difference of treatment between the applicant and M.’s mother which was based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14 of the Convention. The Court reiterates in that connection that the list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “ notamment ”) (see the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 30-31, § 72).",
"2. Justification for the difference in treatment",
"29. In accordance with the case-law of the Convention institutions, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291 ‑ B, pp. 32-33, § 24).",
"30. The decision of the Court of Appeal undeniably pursued a legitimate aim, namely the protection of the health and rights of the child; it must now be examined whether the second requirement was also satisfied.",
"31. In the applicant’s submission, the wording of the judgment clearly showed that the decision to award parental responsibility to the mother was based mainly on the father’s sexual orientation, which inevitably gave rise to discrimination against him in relation to the other parent.",
"32. The Government submitted that the decision in question had, on the contrary, merely touched on the applicant’s homosexuality. The considerations of the Court of Appeal to which the applicant referred, when viewed in context, were merely sociological, or even statistical, observations. Even if certain passages of the judgment could arguably have been worded differently, clumsy or unfortunate expressions could not in themselves amount to a violation of the Convention.",
"33. The Court reiterates its earlier finding that the Lisbon Court of Appeal, in examining the appeal lodged by M.’s mother, introduced a new factor when making its decision as to the award of parental responsibility, namely the applicant’s homosexuality (see paragraph 28 above). In determining whether the decision which was ultimately made constituted discriminatory treatment lacking any reasonable basis, it needs to be established whether, as the Government submitted, that new factor was merely an obiter dictum which had no direct effect on the outcome of the matter in issue or whether, on the contrary, it was decisive.",
"34. The Court notes that the Lisbon Family Affairs Court gave its decision after a period in which the applicant, his ex-wife, their daughter M., L.G.C. and the child’s maternal grandparents had been interviewed by court psychologists. The court had established the facts and had had particular regard to the experts’ reports in reaching its decision.",
"The Court of Appeal, ruling solely on the basis of the written proceedings, weighed the facts differently from the lower court and awarded parental responsibility to the mother. It considered, among other things, that “custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this (see paragraph 14 above). The Court of Appeal further considered that there were insufficient reasons for taking away from the mother the parental responsibility awarded her by agreement between the parties.",
"However, after that observation the Court of Appeal added “Even if that were not the case ... we think that custody of the child should be awarded to the mother” (ibid.). The Court of Appeal then took account of the fact that the applicant was a homosexual and was living with another man in observing that “The child should live in ... a traditional Portuguese family” and that “It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations” (ibid.).",
"35. It is the Court’s view that the above passages from the judgment in question, far from being merely clumsy or unfortunate as the Government maintained, or mere obiter dicta, suggest, quite to the contrary, that the applicant’s homosexuality was a factor which was decisive in the final decision. That conclusion is supported by the fact that the Court of Appeal, when ruling on the applicant’s right to contact, warned him not to adopt conduct which might make the child realise that her father was living with another man “in conditions resembling those of man and wife” (ibid.).",
"36. The Court is therefore forced to find, in the light of the foregoing, that the Court of Appeal made a distinction based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (see, mutatis mutandis, the Hoffmann judgment cited above, p. 60, § 36).",
"The Court cannot therefore find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14.",
"B. Alleged violation of Article 8 taken alone",
"37. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone; the arguments advanced in this respect are essentially the same as those examined in respect of Article 8 taken in conjunction with Article 14.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"38. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"39. The applicant requested the Court to award him “just satisfaction” without, however, quantifying his claim. In the circumstances the Court considers that the finding of a violation set out in the present judgment constitutes in itself sufficient just satisfaction in respect of the damage alleged.",
"B. Costs and expenses",
"40. The applicant requested reimbursement of the costs incurred in lodging his application, including those of himself and his advisers attending the hearing before the Court, namely 224,919 Portuguese escudos (PTE), 5,829 French francs, 11,060 Spanish pesetas and 67 German marks, that is a total sum of PTE 423,217.",
"He also requested reimbursement of the fees billed by his lawyer and by the adviser who had assisted her in preparing for the hearing before the Court, that is PTE 2,340,000 and PTE 340,000 respectively.",
"41. The Government left the matter to the Court’s discretion.",
"42. The Court is not satisfied that all the costs claimed were necessary and reasonable. Making an equitable assessment, it awards the applicant an aggregate sum of PTE 350,000 under that head.",
"As regards fees, the Court considers that the sums claimed are also excessive. Making an equitable assessment and having regard to the circumstances of the case, it decides to award PTE 1,500,000 for the work done by the applicant’s lawyer and PTE 300,000 for that done by her adviser.",
"C. Default interest",
"43. According to the information available to the Court, the statutory rate of interest applicable in Portugal at the date of adoption of the present judgment is 7% per annum."
] |
74 | Palau-Martinez v. France | 16 December 2003 | The applicant, a Jehovah’s Witness, submitted in particular that the residence order providing that her two children should live with their father had interfered in her private and family life and was discriminatory. | In the absence of a reasonable relationship of proportionality between the means employed and the aim pursued, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Court observed in particular that when the Court of Appeal ruled that the children should live with their father they had been living with their mother for nearly three and a half years. Furthermore, in examining the conditions in which the applicant and her ex-husband had raised their children, the Court of Appeal had treated the parents differently on the basis of the applicant’s religion, on the strength of a harsh analysis of the educational principles allegedly imposed by the religion. The Court found that, in so doing, the appellate court had ruled on the basis of general considerations without establishing a link between the children’s living conditions with their mother and their real interests. Although relevant, that reasoning had not been sufficient. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant is a French citizen who was born in 1963 and lives in Alcira, near Valencia (Spain).",
"8. The applicant married in January 1983. She and her husband had two children, born in 1984 and 1989.",
"9. In August or September 1994 the applicant's husband left the matrimonial home and moved in with his mistress. In December 1994 the applicant petitioned for divorce.",
"10. By a judgment of 5 September 1996, the Nîmes tribunal de grande instance ruled on the divorce petition. It found, firstly, that a reading of the submitted documents had not established that the applicant's membership of the Jehovah's Witnesses had been the cause of the break-down in the couple's relationship, but that it had been attested that her husband had left the matrimonial home to live with his mistress, and had also prevented the applicant from working in the pizzeria they ran. Accordingly, it granted the divorce, attributing fault to the husband alone.",
"11. With regard to the children, the court decided that they would reside with their mother in Spain and that parental responsibility would be exercised jointly. The father was to have visiting and residence rights on an unrestricted basis and, in the absence of agreement, during the whole of the children's school holidays, provided that he collected them himself and escorted them back to their mother's home. It set the amount of the father's maintenance payments at 1, 500 French francs (FRF) per month and per child.",
"12. On 21 November 1996 the applicant appealed against this judgment. She asked to be given access for one month during the children's summer holidays and one week during the Christmas and Easter holidays. She also renewed her request for a complementary allowance. In her pleadings in reply, the applicant complained that her ex-husband had not returned the children to her at the end of the 1997 summer holidays and had enrolled them in a school in Aigues-Mortes, where he lived with his new companion. She submitted that the father had influenced the children so that they would express a wish to live with him; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them. She requested that a social inquiry report be drawn up.",
"13. The Nîmes Court of Appeal delivered judgment on 14 January 1998. It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of FRF 1, 500 per month for three years. With regard to the children's place of residence, the court found as follows :",
"“ The two under - age children, C., aged 13, and M., aged 8, currently live with their father in Aigues-Mortes, where they attend school.",
"This is a de facto situation which has been brought about by the father, who, contrary to the provisions of the appealed judgment, failed to return the children to their mother's home at the end of the summer holidays.",
"In justifying his behaviour, R. claims that he has acted in the children's interests, in order to remove them from the detrimental influence of their mother and her circle, who oblige them to practice the religion known as'the Jehovah's Witnesses'.",
"Furthermore, R. has submitted a letter from child C., expressing the latter's wish to remain with his father, together with a medical certificate drawn up by Doctor D., a psychiatrist, on 7 January 1997, which states that child C.'experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating'and that'child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997'.",
"Finally, numerous other witness statements testified to the children's expressed wish not to return to Spain.",
"Séraphine Palau-Martinez does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion.",
"Admittedly, she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well-being, and has filed group photographs in which her children appear happy.",
"Taken together, however, the submitted documents are not inconsistent with the arguments of R., who does not wish to deny the mother's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother's religious convictions.",
"The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise.",
"It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect.",
"There is no reason to order a social inquiry report which, in the present circumstances, would serve only to unsettle the children.",
"In the light of the above analysis, the Court considers that, contrary to the lower court's decision, the two under - age children's place of residence should be their father's home, but that parental responsibility should continue to be exercised jointly.",
"Should no agreement be reached [between the parents], Séraphine Palau-Martinez will enjoy free right of access and the right to have the children to stay:",
"– for the whole of the February and All Saints holidays;",
"– for one month during the summer holidays;",
"– for half of the Easter and Christmas holidays, when it will be for the mother to collect the children from the father's home and for the latter to collect them from the mother's home; ...”",
"14. The applicant appealed on points of law. In particular, she complained that the Court of Appeal had reversed the first-instance judgment on the central ground that the rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise; in so deciding, it had done no more than apply a general and abstract ground and had failed to investigate whether, in reality, the children's upbringing was disrupted to an extent that justified changing their place of residence. She considered that this value judgment on the way in which she practised her religion, taken in abstracto, did not justify the court's decision. She added that the manner in which the court had asserted that it was in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract. She also complained that the Court of Appeal had refused to grant her request for a social inquiry report. Referring to freedom of conscience and religion and to the rules of a fair hearing, she relied on Articles 9 and 6 of the Convention.",
"15. The Court of Cassation delivered its judgment on 13 July 2000. After summarising the grounds of the Court of Appeal's judgment, it ruled as follows:",
"“It is apparent from these findings and considerations that the Court of Appeal, which replied to the submissions without inconsistency, was not obliged to order a social inquiry report and did not interfere with Ms Palau-Martinez's freedom of conscience, ruled, on the basis of the evidence which it alone is empowered to assess, that the children's interests required that their father's home be established as their habitual place of residence; ...”"
] | [
"II. RELEVANT DOMESTIC LAW",
"16. The relevant provisions of the Civil Code provide:",
"Article 287 (in the version applicable at the material time)",
"“Parental responsibility shall be exercised jointly by both parents. Failing an agreement or where the court considers that such an agreement goes against the child's interests, the court shall designate the parent with whom the children shall habitually reside.",
"Where it is necessary in the interests of the child, the court may confer parental responsibility on one of the two parents.",
"On their own initiative or at the court's request, the parents may submit their observations on the arrangements for exercising parental responsibility .”",
"Article 287 - 2 (as worded at the material time)",
"“Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights, or entrusting the children to a third party, the court may instruct any qualified person to draw up a social inquiry report. The aim of this document is to gather information on the family's material and moral situation, the conditions in which the children live and are brought up, and the measures which should be taken in their interests.",
"If one of the spouses disputes the conclusions of the social inquiry report, he or she may request a second expert opinion.",
"The social inquiry report may not be used in the divorce proceedings .”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14",
"17. The applicant complained firstly that the residence order stating that the children should live with their father had infringed her right to respect for her private and family life and had been discriminatory. She relied on Articles 8 and 14 of the Convention, the relevant parts of which provide as follows:",
"Article 8",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Alleged violation of Article 8 taken in conjunction with Article 14",
"18. The applicant referred firstly to Hoffmann v. Austria (judgment of 23 June 1993, Series A no. 255 ‑ C). She considered that the same reasoning should be applied in the instant case and that the fact that custody of her two children, which she had enjoyed for two years, had been withdrawn ought to be regarded as interference with her right to respect for her family life.",
"19. She stressed that, in seeking to justify the interference, the Government based their arguments almost exclusively on allegations by her former husband, witness statements from his friends, the opinion of a psychiatrist consulted by him alone and the opinions of the children, which were necessarily dependent on the circumstances in which they had been obtained.",
"20. The applicant further asserted that the Nîmes Court of Appeal, having refused to order a social inquiry report, had assessed the situation in abstracto and had delivered a socially stigmatising judgment based mainly and decisively on her religious beliefs. She also claimed that the use of evidence provided by her former husband alone was merely a pretext for a value judgment against the Jehovah's Witnesses'convictions regarding family life, the national courts'real motivation having been the applicant's religious beliefs.",
"21. The applicant considered that she was justified in alleging a serious interference with her maternal rights and obligations, given firstly that the decision against her had been based on discriminatory grounds, and secondly that the father's home had been named as the children's habitual residence despite his conduct. She emphasised that he had abandoned his family and that he had subsequently refused to return the children to their mother's home, in violation of a judgment by the family-affairs judge.",
"22. Further, she challenged the statement that the children's interests had been carefully examined and, in consequence, denied that there was any justification for this interference. The applicant considered that the Court of Appeal had based its decision on erroneous and ex parte opinions, had rendered the proceedings unequal by refusing a psychological expert opinion and had been discriminatory in grounding its judgment of 14 January 1998 on her religious beliefs.",
"23. The Government did not dispute that the applicant's complaint fell within the scope of Article 8 of the Convention.",
"However, they considered that, in the context of a divorce, court “intervention” was necessary but could not be considered “interference” within the meaning of Article 8 § 2.",
"If, however, the Court were to consider that there had been interference with the applicant's rights, the Government argued that this was in accordance with the law, namely the Civil Code, served a legitimate aim, namely the children's interests, and was proportionate, since children's interests could, and sometimes must, prevail over those of their parents.",
"24. The Government submitted that the domestic courts might legitimately have considered, on the basis of objective evidence and after hearing the children's opinion, that the upbringing imposed by their mother obliged them to comply with constraints that were scarcely compatible with a balanced upbringing, requiring them in particular to engage in proselytising activities.",
"25. Furthermore, they considered that the conditions required for the application of Article 14 of the Convention had not been fulfilled.",
"They submitted that the applicant and her ex-husband were in similar situations in that both could have the children's residence established at their respective homes.",
"26. They also submitted that in the instant case, as distinct from the situation condemned by the Court in Hoffmann, cited above, it was indeed the consequences of religious observance on the children's health and equilibrium that had been taken into account, and not merely the fact that the mother was a Jehovah's Witness.",
"27. The Government acknowledged that the Court of Appeal's judgment had condemned the results of the Jehovah's Witnesses'precepts regarding child-rearing in general terms, but asserted that the mere fact of the applicant's religious beliefs had not been the basis of this decision. According to the Government, the basis of the Court of Appeal's judgment, which had specified the damage suffered by the children, lay in the disadvantages already experienced by them, in that the medical certificate pointed to the existence of a degree of frustration due to the religion imposed by their mother, no medical certificate to the contrary having been submitted to invalidate the psychiatrist's opinion. In addition, the judgment noted that the applicant took her children with her when attempting to spread her religious beliefs, and that numerous witnesses had confirmed the children's wish to live with their father. Consequently, the Government considered that the Court of Appeal had ruled with reference to the particular circumstances and had justified its decision objectively and reasonably.",
"28. In the alternative, the Government considered that any possible distinction made in respect of the applicant on account of her religious convictions had been proportionate and justified on objective and reasonable grounds, namely the best interests of the children, which the national courts had assessed in a concrete manner in the light of objective factors.",
"29. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000-X ).",
"30. The Court notes at the outset that, in the instant case, the two children had been living with their mother for almost three and a half years, ever since their father had left the family home, when the judgment by the Nîmes Court of Appeal established residence at their father's home. Accordingly, the Court considers that this judgment constitutes interference with the applicant's right to respect for her family life and cannot be regarded merely as the judicial intervention necessary in any divorce, as the Government submitted. The case therefore falls within the ambit of Article 8 of the Convention (see Hoffmann, cited above, p. 58, § 29).",
"31. Further, different treatment is discriminatory, for the purposes of Article 14, if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24, and Camp and Bourimi, cited above, § 37).",
"32. The Court must therefore first examine whether the applicant can claim to have received different treatment.",
"33. In reversing the first-instance judgment and establishing the children's residence at their father's home, the Court of Appeal ruled on the conditions in which the applicant and her ex-husband respectively were raising their children.",
"34. To do this, the Court of Appeal had before it, on the one hand, a letter written by one of the children and submitted by the father, “expressing [the child's] wish to remain with his father” and a medical certificate from a psychiatrist, drawn up in January 1997, stating that child C. “experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating ”, and that “ child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997 ”. The Court of Appeal also mentioned “numerous statements” submitted to the court which testified to the children's wish not to return to Spain.",
"35. On the other hand, the applicant had filed with the Court of Appeal “numerous statements attesting to her affection for her children and showing that she provides for their well-being ” and “group photographs in which her children appear happy”.",
"36. The Court of Appeal considered that, taken as a whole, the documents submitted by the mother “ [were] not inconsistent with the arguments of R., who [ did ] not wish to deny the mother's maternal attributes, but [ restricted ] himself to criticising the strict upbringing received by the children on account of their mother's religious convictions”.",
"37. It appears from the remainder of the judgment that the Court of Appeal attached decisive importance to the applicant's religion.",
"Having noted that the applicant “does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion ”, the Court of Appeal ruled as follows:",
"“The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise.",
"It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect. ”",
"38. There is therefore no doubt, in the Court's view, that the Court of Appeal treated the parents differently on the basis of the applicant's religion, on the strength of a harsh analysis of the principles regarding child-rearing allegedly imposed by this religion.",
"39. Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Darby v. Sweden, judgment of 23 October 1990, Series A no. 187, p. 12, § 31, and Hoffmann, cited above, p. 59, § 33).",
"40. The Court is of the opinion that the aim pursued in the instant case, namely protection of the children's interests, is legitimate.",
"41. It remains to be determined whether there was a reasonably proportionate relationship between the means employed, namely establishing the children's residence at their father's home, and the legitimate aim sought.",
"42. The Court notes firstly that the Court of Appeal, in the two paragraphs of its judgment cited above, asserted only generalities concerning Jehovah's Witnesses.",
"It notes the absence of any direct, concrete evidence demonstrating the influence of the applicant's religion on her two children's upbringing and daily life and, in particular, of the reference which the Government alleged was made in the Court of Appeal's judgment to the fact that the applicant took her children with her when attempting to spread her religious beliefs. In this context, the Court cannot accept that such evidence is constituted by the Court of Appeal's finding that the applicant “does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion”.",
"It further notes that the Court of Appeal did not consider it necessary to grant the applicant's request for a social inquiry report, a common practice in child custody cases; such an inquiry would no doubt have provided tangible information on the children's lives with each of their parents and made it possible to ascertain the impact, if any, of their mother's religious practice on their lives and upbringing during the years following their father's departure when they had lived with her. Accordingly, the Court considers that the Court of Appeal ruled in abstracto and on the basis of general considerations, without establishing a link between the children's living conditions with their mother and their real interests. Although relevant, that reasoning was not in the Court's view sufficient.",
"43. In those circumstances, the Court cannot conclude that there was a reasonably proportionate relationship between the means employed and the legitimate aim pursued. There has accordingly been a violation of Article 8 of the Convention taken in conjunction with Article 14.",
"B Alleged violation of Article 8 taken alone",
"44. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone, the arguments advanced in this respect having already been examined in respect of Article 8 taken in conjunction with Article 14.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 9 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14",
"45. The applicant complained that she had not had a fair hearing within the meaning of Article 6 § 1 of the Convention, in that the Court of Appeal had refused to order a social inquiry report. She also claimed that there had been interference with her freedom of religion within the meaning of Article 9, that this interference was discriminatory within the meaning of Article 9 taken in conjunction with Article 14, and referred in the submissions in support of her arguments to Article 2 of Protocol No. 1.",
"46. The Court considers that no separate issue arises under Article 6 or Article 9 taken alone or in conjunction with Article 14, or under Article 2 of Protocol No. 1, since the factual circumstances relied on are the same as those for the complaint under Article 8 taken in conjunction with Article 14, of which a violation has been found.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"47. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"48. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.",
"49. The Government considered that the finding of a violation would constitute sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.",
"50. The Court has found a violation of Articles 8 and 14, taken together, on account of the discrimination suffered by the applicant in the context of interference with the right to respect for her family life. It considers that the applicant sustained some non-pecuniary damage on account of this violation. Making its assessment on an equitable basis, the Court awards the sum of EUR 10,000 claimed by the applicant under this head.",
"B. Costs and expenses",
"51. The applicant claimed EUR 3,125 in respect of costs and expenses incurred before the Court of Cassation and EUR 6,000 in respect of her lawyer's fees before the Court.",
"52. In this regard, the Government considered that only the costs incurred before the Court could be taken into account, subject to production of the relevant vouchers.",
"53. The Court notes, firstly, that the applicant's appeal to the Court of Cassation related primarily to the violation found. Accordingly, it awards her the totality of the costs incurred in lodging this appeal, namely EUR 3,125.",
"As to presentation of the application to the Court, the Court notes that the costs are made up of a report by a university professor, for a fee of EUR 4,573.47, and the lawyer's fees proper, in the sum of EUR 1,426. 5 3, for which no voucher was produced.",
"The Court considers that, bearing in mind the nature of the case and the existing legal precedents, it had not been necessary to commission a report from an academic, and that the applicant's lawyer could have carried out the necessary research himself. In addition, no relevant vouchers have been submitted as to the latter's fees.",
"In those circumstances, the Court awards the applicant EUR 1, 000 for her representation before the Court.",
"The Court therefore awards the applicant a total of EUR 4,125 for costs and expenses.",
"C. Default interest",
"54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
75 | Zaunegger v. Germany | 3 December 2009 | His daughter having been born out of wedlock, the applicant complained about the fact that, unlike divorced fathers and mothers, German law did not provide him with the opportunity to be granted joint custody without the mother’s consent. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect of private and family life) of the Convention, finding that there had not been a reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock. The Court considered, in particular, that there could be valid reasons to deny the father of a child born out of wedlock participation in parental authority, for example if a lack of communication between the parents risked harming the welfare of the child. These considerations did not apply in the present case, however, as the applicant continued to take care of the child on a regular basis. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1964 and lives in Pulheim.",
"8. The applicant is the father of a daughter born out of wedlock in 1995. The applicant and the mother of the child separated in August 1998. Their relationship had lasted five years. Until January 2001, the daughter lived with the applicant, whereas the mother had moved to another flat which was located in the same building. As the parents did not make a joint custody declaration ( gemeinsame Sorgerechtserklärung ), the mother obtained sole custody ( alleinige Personensorge ) pursuant to Article 1626a § 2 of the German Civil Code ( Bürgerliches Gesetzbuch, see Relevant domestic law and practice below).",
"9. In January 2001, the child moved to the mother ’ s flat. Subsequently, the parents started to argue about the applicant ’ s contact with the child. In June 2001 they reached an agreement with the assistance of the Cologne-Nippes Youth Welfare Office ( Jugendamt Köln-Nippes ), according to which the applicant would have contact with the child every Wednesday afternoon until Thursday morning, every Sunday from 10 a. m. to Monday morning and half of each holiday, amounting in total to approximately four months per year. In 2001, the applicant applied for a joint custody order, as the mother was unwilling to agree on a joint custody declaration, although otherwise both parents were cooperative and on good terms.",
"10. On 18 June 2003, the Cologne District Court ( Amtsgericht Köln ) dismissed the applicant ’ s application. It found that there was no basis for a joint custody order. Under German law, joint custody for parents of children born out of wedlock could only be obtained through a joint declaration, marriage or a court order under Article 1672 § 1 of the Civil Code, the latter requiring the consent of the other parent. The Cologne District Court considered Article 1626a of the Civil Code to be constitutional and referred to a leading judgment of the Federal Constitutional Court ( Bundesverfassungsgericht ) of 29 January 2003 (see §§ 18 -2 1, below ). Having regard to the fact that the pertinent legal provisions did not allow for a different decision, the District Court did not consider it necessary to hear the concerned parties in person.",
"11. The applicant appealed and on 2 October 2003 the Cologne Court of Appeal ( Oberlandesgericht Köln ) dismissed the appeal. It reasoned that, as the applicant and the mother were unmarried, the applicant ’ s participation in the exercise of custody was only possible in accordance with Article 1626a of the Civil Code. The applicant and the mother had, however, not submitted the required joint custody declaration. In its judgment of 29 January 2003, the Federal Constitutional Court had found that Article 1626a of the Civil Code was constitutional with regard to the situation of parents of children born out of wedlock who had separated after 1 July 1998. The Cologne Court of Appeal noted that the applicant and the mother of the child had separated in August 1998. Thus, they had had a period of one and a half months before they separated in which they could have made a joint custody declaration. The Cologne Court of Appeal further noted that the new legislation, which had entered into force on 1 July 1998, had received public attention for a considerable period. Unmarried parents might have been expected therefore to have shown an interest in the matter and to have noticed the new legislation.",
"12. On 15 December 2003 the Federal Constitutional Court, referring to the pertinent provisions of its Rules of Procedure, declined to consider the applicant ’ s constitutional complaint, without giving further reasons."
] | [
"II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE",
"A. Relevant domestic law",
"1. Relevant provisions of the German Civil Code",
"13. The statutory provisions on custody and contact are to be found in the German Civil Code (the “Civil Code”). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority ( elterliche Sorge ) over a minor child.",
"14. As regards children born out of wedlock, custody was pursuant to the former Article 1705 of the Civil Code automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998, the amended Law on Family Matters of 16 December 1997 ( Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court ’ s judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody.",
"15. If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the father if he lodges the relevant application with the consent of the mother. The application is to be granted if the transfer serves the child ’ s interest. Article 1672 § 2 of the Civil Code provides that in the case of a transfer of the right to custody under Article 1672 § 1 of the Civil Code, the family court may subsequently order joint custody on the application of one parent with the consent of the other parent unless it would be to the detriment of the child. The same applies if the transfer of custody under Article 1672 § 1 of the Civil Code is later annulled.",
"By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child ’ s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child ’ s best interest pursuant to Article 1671 of the Civil Code.",
"16. Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child ’ s physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are admissible only if the child would be at risk otherwise (Article 1666a of the Civil Code).",
"2. Case-law of the Federal Constitutional Court",
"17. On 29 January 2003, the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 ( that is, those who were unable to make a joint custody declaration before 1 July 1998 ). In order to resolve the above -mentioned constitutional flaws, the German legislator introduced Article 224 (2) (a) of the Introductory Act to the Civil Code ( Einführungsgesetz in das Bürgerliche Gesetzbuch ), on 31 December 2003, according to which a court may substitute the mother ’ s consent to joint custody if an unmarried couple have a child born out of wedlock, have lived together with the child and were separated before 1 July 1998, provided that joint custody would serve the best interests of the child ( Kindeswohl ).",
"18. In its judgment of 29 January 2003, the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children were born out of wedlock. Parents who were married had obliged themselves on marriage to take responsibility for each other and their children. In contrast to this, the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other. There was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility as a general rule. The child ’ s well-being therefore demanded that the child had a person at birth who could act for it in a legally binding way. In view of the very different life conditions into which those children were born, generally it was justifiable to grant sole custody to the mother, and not to the father or to both parents. This legislation could also not be objected to from a constitutional point of view because the legislature had given both parents of children born out of wedlock the possibility of obtaining custody through a joint declaration.",
"19. The Federal Constitutional Court found that the legislator could legitimately assume that joint custody which was exercised against the will of one parent would have more disadvantages than advantages for a child born out of wedlock. Joint custody required a minimum of agreement between the parents. If the parents were unable or unwilling to cooperate, joint custody might run counter to the child ’ s well-being. The legislator assumed that the will to exercise joint custody which parents explicitly expressed upon marriage also showed their will to cooperate. Unmarried parents could express this will to cooperate through a joint custody declaration. The father ’ s right to custody indeed depended on the mother ’ s willingness to exercise joint custody, but the mother in turn could not demand joint custody without the father ’ s consent. The parents could thus only exercise joint custody if they both wanted to. That limitation on the father ’ s right to respect for his family life was not unjustified, given that the joint custody exercised by a married couple was based on their marriage. The applicable law gave unmarried couples the possibility of exercising joint custody, in particular, if they lived together with the child and not after the couple had separated. The legislator could legitimately assume that, if the parents lived together but the mother refused to make a joint custody declaration, the case was an exceptional one in which the mother had serious reasons for the refusal which were based on the child ’ s interest. Given this assumption, the applicable law did not infringe the father ’ s right to respect for his family life by not providing for a judicial review. In the event of such serious reasons it could not be expected that the courts would consider joint custody to be in the child ’ s best interest.",
"20. In view of the fact that this legal structure had only recently been established, it had not been possible to ascertain whether there was a substantial number of similar cases where joint custody was in dispute or crucially, to reach conclusions as to why this should be the case.",
"21. The Federal Constitutional Court stated that the legislator was obliged to keep developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality. If this proved not to be the case, the legislator was obliged to revise the legislation and to provide fathers with the adequate possibility of obtaining custody rights.",
"B. Relevant comparative law",
"22. A survey on comparative law taking into account the national laws of a selection of Member States of the Council of Europe shows that basically all Member States included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock. The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the parents ’ agreement to exercise joint authority.",
"23. However, the solutions in the Member States vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect.",
"24. In only a limited number of countries do the statutory regulations explicitly address this issue. In a few countries, such as Austria, Norway and Serbia, the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non - consenting parent has a right of veto. By contrast, the laws in Hungary, Ireland and Monaco appear to provide for a joint exercise of parental authority even without the parents ’ consent.",
"25. In some Member States such as the Czech Republic and Luxembourg, while the law itself is not clear on the subject, the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents, whereas for example the Dutch Supreme Court has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees. A similar approach seems to be followed in Spain.",
"26. With the exception of the few countries where a right of veto of one parent is explicitly stipulated in national law, the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of one of the parents bearing in mind the best interests of the child. All Member States emphasise the importance of the child ’ s best interest in decisions regarding the attribution of custody. In determining the child ’ s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particular circumstances of the case, as regards, inter alia, the demonstrable interest in and commitment to the child by the respective parent.",
"27. In summary, and as also pointed out by the Government, the survey confirms that while different approaches exist in the Member States, the majority provide for paternal participation in custody if the parents were not married to each other, either irrespective of the mother ’ s will or at least by court order following an evaluation of the child ’ s interests.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"28. The applicant complained under Article 8 of the Convention that the court decisions refusing joint custody had infringed his right to respect for his family life, and under Article 14 read in conjunction with Article 8 of the Convention that the application of Article 1626a § 2 of the Civil Code amounted to unjustified discrimination against unmarried fathers on the grounds of sex and in comparison with divorced fathers.",
"Article 8 provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"1. The Government ’ s submissions",
"29. The Government submitted that Article 1626a § 2 of the Civil Code was founded on the differences that existed in the respective environments into which children born out of wedlock were born, ranging from father-child relationships that were intact to those where the father was indifferent. With the primary assignment of parental custody to the mother, whose identity – in contrast to that of the father – was established at the time of birth, the intention was to have a clear allocation of the right of custody for the purpose of legal certainty, so that from the outset there would be a binding determination of the statutory representative for the protection of the child concerned. The approval requirement applying to both parents for the joint exercise of parental custody was based on the notion that parents who could not agree to make a custody declaration were highly likely to come into conflict when specific questions relating to the exercise of parental custody were at stake, which could cause painful disputes which would be detrimental to the child ’ s interests.",
"30. The Government further underlined that the Federal Constitutional Court obliged the legislator to keep any developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality. For the purpose of fulfilling this obligation the Government had taken various measures such as obtaining statistical data and conducting surveys. A research project on joint custody as regards unmarried parents had been launched in March 2009. However, the said surveys had not yet yielded any clear results.",
"31. In the Government ’ s view, the interference with the father ’ s presumed rights through the statutory provision making joint custody dependent on the mother ’ s approval was necessary in a democratic society for the legitimate aim of protecting the child ’ s best interests, even though there existed no European consensus on the issue. While it was true that the majority of the Member States provided for paternal participation in custody if the parents were not married to each other, either irrespective of the mother ’ s will or at least by court order following an evaluation of the child ’ s interests, other European countries (such as Austria, Liechtenstein, Switzerland and Denmark) had similar rules to those in force in Germany. As the Court did not evaluate the abstract statutory position but rather the way in which the rules were being applied to the applicant under the specific circumstances concerned, the agreement of the parents, with the assistance of the Youth Welfare Office, which gave the applicant contact with the child for a good four months every year, had to be taken into account. Therefore the applicant had had the opportunity to play a large part in his daughter ’ s life. He had neither been discriminated against by the ruling in favour of the mother nor had the ruling discriminated against married or divorced fathers. The mother ’ s situation and the father ’ s situation were not totally comparable, given that fatherhood could not be established from the outset if the parents were unmarried. While taking into account as far as possible the interests of everyone concerned, the above provisions in the Civil Code were not linked to gender, but sought to regulate parental custody in a balanced manner in the case of children born out of wedlock. Moreover, German law provided that joint custody with the mother was linked to her consent, regardless of whether the parents were married or not. The Government finally contended that, under the circumstances of the present case, it could not be ruled out that the ordering of joint custody would cause conflicts between the parents and would therefore be contrary to the child ’ s best interests.",
"2. The applicant ’ s submissions",
"32. The applicant maintained that the interest of a child born out of wedlock did not justify that a father who had cared for the child in the past could not obtain joint custody. That joint custody against the will of the mother was necessarily to the detriment of the child ’ s best interests remained mere speculation. Under the applicable law, the authorities and courts did not even have to take into account the child ’ s best interests, given that the law explicitly provided that a father could not obtain joint custody without the mother ’ s consent. Furthermore, the child had not been heard in the present case. Article 1626 a § 2 of the Civil Code was based on the assumption that fathers of children born out of wedlock were less suitable to exercise custody compared with mothers of children born out of wedlock. The present application, however, proved the opposite, as the applicant ’ s care for his daughter had in fact been excellent. Moreover, the Federal Republic of Germany had not given sufficient reasons in the present case for excluding the applicant ’ s right to custody, which he was willing to exercise. The German legislator had assumed that a father ’ s right to custody was not justified in view of the allegedly numerous unstable relationships with children born out of wedlock in society, thereby ignoring developments such as the growing number of unmarried couples who were willing to exercise joint custody. It was hence unacceptable generally to exclude joint custody for fathers of children born out of wedlock simply due to negative experiences with the exercise of joint custody by couples in unstable relationships. Furthermore, the legislator had failed sufficiently to fulfil its obligation to keep current and recent developments under scrutiny.",
"33. As the applicant ’ s paternity had been certified from the beginning, there was no legal uncertainty in the present case. Moreover, the applicant considered it unacceptable to assume that the mother of a child born out of wedlock was a priori better suited than the father to exercise custody simply because she had given birth to that child. However, the defect in the currently applicable domestic law was not so much that the mother would initially obtain the right to sole custody as that the father did not have the opportunity to correct that decision. Even if the mother ’ s refusal to make a joint custody declaration was completely arbitrary, the father had no chance to have that declaration replaced by a court order pursuant to Article 1672 § 1 of the Civil Code. The legal situation breached, in particular, the father ’ s right to respect for his family life in situations in which the father had had contact with the child for a considerable amount of time and was closely attached to the child. As regards Article 14, the applicant submitted that the applicable law discriminated against the applicant on grounds of sex and as an unmarried father without sufficient justification. The child ’ s interest would not allow the mother to veto a declaration on joint custody. Moreover, the applicant did not have the opportunity to substitute that veto with a court decision.",
"3. The Court ’ s assessment",
"34. In view of the alleged discrimination against the applicant in his capacity as the father of a child born out of wedlock, the Court considers it appropriate to examine the case first under Article 14 taken in conjunction with Article 8 of the Convention.",
"A. Applicability",
"35. The Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to that extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 71, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, § 22).",
"36. The Court must therefore determine whether Article 8 of the Convention is applicable in the instant case.",
"37. In this context the Court reiterates that the notion of family under this provision is not confined to marriage-based relationships and may encompass other de facto \"family\" ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth. Thus there exists between the child and its parents a bond amounting to family life (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 44). The existence or non-existence of “family life” within the meaning of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties, in particular the demonstrable interest in and commitment by the father to the child both before and after the birth (see, among other authorities, L. v. the Netherlands, no. 45582/99, § 36, ECHR 2004-IV).",
"38. The Court further notes that the mutual enjoyment by a parent and child of each other ’ s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, among others, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).",
"39. The Court observes that in the instant case the applicant ’ s paternity was established from the beginning and that he lived together with the mother and the child until the child reached the age of three and a half. Following the parents ’ separation in 1998, the child continued to live for more than two years with the applicant. Since 2001, the child has lived with her mother, while the father has enjoyed extensive contact rights and during which time he has provided for the child ’ s daily needs.",
"40. It follows that the impugned measures in the instant case, namely the decisions which dismissed the applicant ’ s request for joint custody, the right to exercise joint parental authority as regards, inter alia, his daughter ’ s education, care and the determination of where she should live, amounted to interference with the applicant ’ s right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention.",
"41. The Court therefore finds that the facts of the instant case fall within the scope of Article 8 of the Convention and that, accordingly, Article 14 is applicable.",
"B. Compliance",
"42. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification of persons in similar situations (see, among other authorities, Hoffmann v. Austria, 23 June 1993, § 31, Series A no. 255 ‑ C ).",
"43. In this connection the Court notes that the applicant in his capacity as the father of a child born out of wedlock complained firstly of different treatment in comparison with the mother, in that he had no opportunity to obtain joint custody without the latter ’ s consent. Secondly, he complained of different treatment in comparison with married or divorced fathers, who are able to retain joint custody following divorce or a separation from the mother.",
"44. As to the situation under the applicable law of fathers of children born in wedlock in comparison with that of fathers of children born out of wedlock, the Court observes that the applicable legal provisions contain different standards and give rise to a difference in treatment between the two categories of parents. The former category of parent has a legal right to joint custody from the outset and even following divorce, which can be restricted or suspended by a family court only if necessary in the child ’ s interest. The Court notes that on the other hand parental authority over a child born out of wedlock is attributed to the mother unless both parents consent to make a request for joint authority. While the pertinent provisions do not categorically exclude the possibility that the father may obtain joint custody in future, Articles 1666 and 1672 of the Civil Code provide that the family court may only transfer the right to custody to the father if the child ’ s well-being is threatened by negligence on the mother ’ s part or if one parent makes the relevant application with the consent of the other parent. In the absence of these prerequisites, that is to say if the child ’ s well-being is not jeopardised and if the mother does not consent to a transfer of custody, as has been established in the present case, German law does not provide for judicial examination as to whether the attribution of joint parental authority to both parents would suit the child ’ s best interests.",
"45. The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances and whether its application in the present case led to an unjustified difference in the treatment of the applicant ( see Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII ).",
"46. Turning to the circumstances of the present case, the Court notes that the German courts dismissed the applicant ’ s request for joint custody of his daughter because under Article 1626a of the Civil Code, in the absence of a declaration on joint custody by both parents, the mother held sole custody. The approach taken by the German courts in the present case thus fully reflects the underlying legislation. Consequently, as there was no alternative decision possible under national law, the domestic courts did not examine whether the granting of joint custody would jeopardise the child ’ s welfare in this individual case or whether on the contrary the granting of joint custody would be in the best interests of the child. The crucial point is that joint custody against the will of the mother of a child born out of wedlock is prima facie considered as not being in the child ’ s interest.",
"47. Both the Cologne District Court and the Court of Appeal referred to the leading judgment of the Federal Constitutional Court of 29 January 2003, in which the latter court gave detailed reasons regarding the conflict between Article 1626a of the Civil Code and the rights of fathers of children born out of wedlock to have their family life respected. The Federal Constitutional Court found that the child ’ s well-being demanded that it had a person at birth who could act for the child in a legally binding way. In view of the very different life conditions into which those children were born, it was generally justified to grant sole custody to the mother, and not to the father who in any event could obtain custody through a joint custody declaration.",
"48. Having regard to the above court decisions and underlying legislation, the Court finds that there is sufficient reason to conclude that there has been a difference in treatment as regards the attribution of custody to the applicant in his capacity as a father of a child born out of wedlock in comparison with the mother and in comparison with married fathers. The Government argued in this connection that the situation of the mother and the father could not be regarded as being totally comparable, since in contrast to motherhood, which was established on the birth of the child, fatherhood could not be established from the outset if the father was not married to the mother. The Court considers that these arguments are of relevance in determining whether the difference in treatment was justified (see Rasmussen v. Denmark, 28 November 1984, § 37, Series A no. 87 ).",
"49. As is well established in the Court ’ s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, in particular, Inze v. Austria, 28 October 1987, § 41, Series A no. 126, and Mazurek v. France, no. 34406/97, § 48, ECHR 2000-II ).",
"50. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Abdulaziz, Cabales and Balkandali, cited above, pp. 35-36, § 72). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, among others, Petrovic v. Austria, 27 March 1998, § 38, Reports of Judgments and Decisions 1998 ‑ II ).",
"51. However, the Court has already held that very weighty reasons need to be put forward before a difference in treatment on the ground of sex or birth out of or within wedlock can be regarded as compatible with the Convention (see Karlheinz Schmidt v. Germany, cited above, § 24; Mazurek v. France, cited above, § 49). The same is true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a child born of a marriage-based relationship ( see Sommerfeld v. Germany, cited above, § 93 ).",
"52. The Court notes that the impugned decisions of the domestic courts were based on Article 1626a of the Civil Code, which itself is aimed at protecting the best interests of a child born out of wedlock by determining its legal representative and by avoiding disputes between the parents over questions relating to the exercise of parental custody at the child ’ s expense. The decisions thus pursued a legitimate aim for the purposes of Article 14.",
"53. The Court acknowledges that allowing parents of a child born out of wedlock to agree on joint custody constitutes an attempt by the legislator to put them to a certain extent on the same footing as married parents who had obliged themselves on marriage to take responsibility for each other and their children.",
"54. The Court further is aware that differences exist in the respective environments into which the children of parents who are not married are born, ranging from relationships where the father ’ s identity is not established or where he does not want to take responsibility for the child to those where the father fully participates in the upbringing of the child and where the child grows up in an environment that is practically indistinguishable from an environment based on an intact parental marriage.",
"55. The Court accepts that in view of these different life situations of children born out of wedlock and in the absence of a joint declaration on parental authority, it was justified for the protection of the child ’ s interests to attribute parental authority over the child initially to her mother in order to ensure that there was a person at birth who could act for her in a legally binding way.",
"56. The Court further accepts that there may exist valid reasons to deny an unmarried father participation in parental authority, as might be the case if arguments or lack of communication between the parents risk jeopardising the child ’ s welfare. However, nothing establishes that such an attitude is a general feature of the relationship between unmarried fathers and their children.",
"57. The Court observes in particular that the above considerations did not apply in the applicant ’ s case. The applicant ’ s paternity was certified from the beginning, he lived together with the mother and the child until the child reached the age of three and a half and for an additional two years following the parents ’ separation, more than five years in total. After the child had moved to live with her mother, the father still enjoyed extensive contact rights and provided for the child ’ s daily needs. Nevertheless, the applicant was excluded from the outset by force of law from seeking a judicial examination as to whether the attribution of joint parental authority would serve the child ’ s best interests and from having a possible arbitrary objection of the mother to agree to joint custody replaced by a court order.",
"58. The Court is not convinced by the argument put forward by the Government and included in the Federal Constitutional Court ’ s reasoning that the legislator could legitimately assume that, if the parents lived together but the mother refused to make a joint custody declaration, the case was an exceptional one in which the mother had serious reasons for the refusal which were based on the child ’ s interest. In this context the Court welcomes the measures undertaken by the Government for the purpose of fulfilling the mandate from the Federal Constitutional Court to keep actual developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in face of reality. However, it observes that these surveys have not yet produced clear results and that in particular as regards the mothers ’ motives for objecting to joint parental authority they indicate that these are not necessarily based on considerations related to the child ’ s best interests.",
"59. Having regard to the above considerations, the Court cannot share the assumption that joint custody against the will of the mother is prima facie not to be in the child ’ s interest.",
"60. While having regard to the wide margin of appreciation of the authorities, in particular when deciding on custody - related matters ( see Sommerfeld v. Germany, cited above, § 63), the Court also considers the evolving European context in this sphere and the growing number of unmarried parents. The Court reiterates in this connection that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31, and Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112). The Court observes in this context that although there exists no European consensus as to whether fathers of children born out of wedlock have a right to request joint custody even without the consent of the mother, the common point of departure in the majority of Member States appears to be that decisions regarding the attribution of custody are to be based on the child ’ s best interest and that in the event of a conflict between the parents such attribution should be subject to scrutiny by the national courts.",
"61. The Court is not persuaded by the Government ’ s argument in this connection that, under the circumstances of the present case, it could not be ruled out that the ordering of joint custody by a court would cause conflicts between the parents and would therefore be contrary to the child ’ s best interests. While it is true that legal proceedings on the attribution of parental authority always bear the potential of unsettling a young child, the Court observes that the domestic law provides for a full judicial review of the attribution of parental authority and resolution of conflicts between separated parents in cases in which the father once held parental authority, either because the parents were married at the time of birth, had married thereafter or had opted for joint parental authority. In such a case the parents retain joint custody unless the court at the request of one parent awards sole custody to the latter in accordance with the child ’ s best interest pursuant to Article 1671 of the Civil Code.",
"62. The Court considers that the Government have not submitted sufficient reasons why the present situation should allow for less judicial scrutiny than these cases and why the applicant, who has been acknowledged as a father and has acted in that role, should in this respect be treated differently from a father who had originally held parental authority and later separated from the mother or divorced.",
"63. In view of the above considerations, the Court concludes that in respect of the discrimination at issue there was not a reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock.",
"64. There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8 in the instant case.",
"65. Having regard to this conclusion, the Court does not consider it necessary to determine whether there has also been a breach of Article 8 of the Convention taken alone.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"66. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"67. The applicant, relying on the Elsholz case ( Elsholz v. Germany [GC], no. 25735/94, ECHR 2000 ‑ VIII ), claimed a sum of at least 15, 000 euros (EUR) in respect of non-pecuniary damage for the sorrow and frustration he has suffered from not having been formally recognised in his role as a father and from not having been able to actively contribute to key decisions regarding his daughter.",
"68. The Government, while leaving the matter to the Court ’ s discretion, considered the amount claimed by the applicant to be excessive.",
"69. The Court considers that it cannot speculate as to whether the applicant would have been granted parental authority if the domestic courts had examined the merits of his request in accordance with his Convention Rights. Taking further into account that the applicant – unlike the father in the Elsholz case – enjoyed regular contact with his daughter throughout the proceedings, the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.",
"B. Costs and expenses",
"70. The applicant also claimed EUR 3,696.55 for the costs and expenses incurred before the domestic courts and EUR 3,311.59 for those incurred before the Court.",
"71. The Government contested the claim for expenses before the Court.",
"72. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full.",
"C. Default interest",
"73. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
76 | Anayo v. Germany | 21 December 2010 | This case concerned the refusal of German courts to allow the applicant to see his biological children, twins, with whom he had never lived. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the authorities had not examined the question whether a relationship between the twins and the applicant would have been in the children’s interest. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008.",
"1. Background to the case",
"8. The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006.",
"9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again.",
"10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see paragraph 2 8 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins ’ birth, to be allowed contact with the twins.",
"2. Proceedings before the District Court",
"11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present.",
"12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied.",
"13. The District Court further considered that contact between the applicant and the twins was in the children ’ s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children ’ s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant ’ s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant ’ s access to the twins would not adversely affect Mr and Mrs B. ’ s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned.",
"14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B. ’ s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant ’ s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation.",
"3. Proceedings before the Court of Appeal",
"15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant ’ s request for access to the twins.",
"16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below ) nor could he contest Mr B. ’ s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below ).",
"17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties ( enge Bezugsperson ) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them.",
"18. As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children ’ s best interests.",
"19. The fundamental right to respect for one ’ s family life and one ’ s parental rights under Article 6 of the Basic Law (see paragraph 2 4 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant.",
"20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father ’ s role. It was the legislator ’ s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child.",
"21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany ( no. 74969/01, 26 February 2004 ) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody.",
"4. Proceedings before the Federal Constitutional Court",
"22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07).",
"5. Subsequent developments",
"23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant ’ s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008."
] | [
"II. RELEVANT DOMESTIC AND COMPARATIVE LAW",
"1. Domestic law and practice",
"a. Provisions of the Basic Law",
"24. Article 6 of the Basic Law, in so far as relevant, provides:",
"(1) Marriage and the family shall enjoy the special protection of the state.",
"(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.",
"b. Provisions of the Civil Code",
"(i) Provisions on access to a child",
"25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).",
"26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child ’ s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child ’ s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association ( Article 1684 § 4).",
"27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties ( enge Bezugspersonen ) to have a right of access to the child if this serves the child ’ s best interest and if they are bearing actual responsibility for the child or have done so in the past ( social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis.",
"(ii) Provisions on paternity",
"28. According to Article 1592 of the Civil Code, a child ’ s father is either the man who at the date of the child ’ s birth was married to the child ’ s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).",
"29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).",
"30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’ s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child ’ s legal father under Article 1592 nos. 1 or 2 only if he is the child ’ s biological father and if there is no social and family relationship between the legal father and the child.",
"31. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code).",
"2. Comparative law",
"32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law.",
"33. In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child ’ s best interests.",
"34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation ), which has been submitted by the Government, the same applies in Greece. That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court ’ s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father ’ s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway.",
"35. In a considerable number of Council of Europe Member States, according to the Court ’ s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg ).",
"36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court ’ s findings in respect of the legal situation in these countries.",
"37. In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland ) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives.",
"38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic.",
"39. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father ( Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland ), different pre-conditions apply for that father to be granted contact if such contact is in the child ’ s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child ’ s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden ) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey).",
"40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child ’ s welfare is endangered otherwise.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"41. The applicant complained that the refusal to grant him access to his children violated his right to respect for his family life under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"42. The Government contested that argument.",
"A. The parties ’ submissions",
"1. The applicant",
"43. The applicant argued that there was “family life” between him and the twins within the meaning of Article 8 § 1. It was decisive that he was interested in the children and ready to take responsibility for them. He underlined that it was only natural for him as the biological father to wish to participate in their upbringing and to take responsibility for them. He had had a serious relationship with Mrs B., who had planned to divorce her husband, for more than two years. He had intended to live with Mrs B. and the children and they had already looked for a flat and had gone to the ultrasound examination together before Mrs B. left him. Since the children ’ s birth, he had attempted to have access to them and had initiated access proceedings in court. He had not been in a position to establish contact with his children and to bear actual responsibility for them as Mr and Mrs B. had refused him access. By doing so, Mr and Mrs B. also wanted to prevent him from residing in Germany. He rejected allegations that he only wanted to profit from the children ’ s existence in order to obtain a residence permit and underlined that these allegations had already been examined and rejected by the Baden-Baden District Court and by the psychological expert consulted by that court which alone, as has been stressed in the Court ’ s case-law many times, has – and had here – the benefit of contact with all the persons concerned. Moreover, being an asylum seeker, he had not been in a position to bear financial responsibility for the children. He was now living in Spain and had no reason to seek to obtain a residence permit in Germany if not for being able to see his children.",
"44. In the applicant ’ s submission, the interference with his family life by the decisions of the domestic courts had not been justified under Article 8 § 2. German legislation, which allowed contact of biological parents with their children only if there was already a social and family relationship between them and refused access if contact was aimed at establishing such a relationship, failed to comply with Article 8 as it did not balance the interests involved in a fair manner and had thus led to a disproportionate interference with his family life in his case. As was illustrated by the present case, it depended on the legal parents ’ free will whether or not the biological father could build up a social and family relationship with his children. If the legal parents arbitrarily prevented him from doing so, the biological father could not be granted access under Article 1685 § 2 of the Civil Code even if an independent expert confirmed that this would be in the children ’ s best interest. The question of access therefore had to be determined in each individual case in accordance with the best interest of the child concerned – which alone was decisive under Article 8 for the question whether a biological father should be granted access – and could not be predetermined by a legal presumption of when contacts would under no circumstances be in a child ’ s best interest. As the Court of Appeal had expressly stated that it had been irrelevant whether contacts between him and his children would be in the children ’ s best interest, it had therefore failed to give relevant and sufficient reasons to justify the interference with Article 8.",
"45. The applicant objected to the findings in a general psychological expert report commissioned by the Government for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children ’ s welfare (see paragraph 51 below ) and to the Government ’ s interpretation of those findings. In particular, it had not been proven by psychological research that contacts of biological fathers with their children against the legal parents ’ will would endanger the children ’ s welfare in all circumstances. He stressed that the Federal Constitutional Court itself had considered that it was of utmost importance for a child to get to know both parents in order to develop his or her personality. He further underlined that it was nothing unusual for families today to deal with two fathers as many children, following separation of their parents, lived together with their mother and stepfather while having contacts with their father.",
"46. The applicant also contested that the provisions on contacts between biological fathers and children were as restrictive as in Germany in most other European States. He argued that there was nothing to indicate that the access rights of biological fathers in only 17 of the 47 Council of Europe Member States surveyed in the report the Government had obtained from the German Institute for Youth Human Services and Family Law (see paragraph 52 below) were representative for the legal situation in all of the Council ’ s Member States.",
"47. The applicant further emphasised that contact between the children and him, their biological father, was in the children ’ s best interest in the circumstances of the case. The independent expert consulted in the proceedings before the District Court had confirmed this and found that contact with him was important for the children to develop their own identity, in particular because it was visible that Mr B. was not the twins ’ biological father. Being African-German, they needed their father in order to understand why they were different. The applicant underlined that Mr and Mrs B. had not challenged the expert for bias in the proceedings before the domestic courts and that the family courts had not considered the expert biased. The denial of access to his children would result in his expulsion from Germany, which in turn would render impossible any future contact between him and the children.",
"2. The Government",
"48. The Government argued that there had been no interference with the applicant ’ s rights under Article 8 § 1 as there had not been any “family life” between the applicant and the twins. It was not sufficient that the applicant was the natural father of the children. There were no close bonds between him and the twins. The relationship between the applicant and Mrs B. had ended four months before the twins were born and the applicant had neither been present at their birth nor had any contact with them. At no point in time had he lived with Mrs B. and he had not borne any financial responsibility for the children. On the contrary, the children had been living in a different family unit since their birth. The mere wish of the applicant, who had moved to Spain in the meantime, to establish a relationship with the twins did not fall within the ambit of “ family life” under Article 8 § 1. The Government further submitted that it appeared that the applicant was interested in Mrs B. and the twins only in order to obtain a residence permit in Germany and that it was questionable whether the real motive for the applicant ’ s attempts to be granted access to the twins was his desire to built up a relationship with his children.",
"49. The Government submitted that, should the Court find that there had been an interference with the applicant ’ s family life, that interference was justified under Article 8 § 2. The interference had been in accordance with Articles 1592 no. 1, 1684 and 1685 of the Civil Code and Article 6 of the Basic Law (see paragraphs 24 and 26-28 above).",
"50. The interference had been necessary for the protection of the rights and freedoms of others, in particular for the protection of the legal/social family and the best interest of the children. There had been a fair balancing of the interests involved, that is, those of the biological father, the legal parents and the children.",
"51. The Government took the view that, in the first place, the German legislator, in Articles 1592, 1594, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. It was of utmost importance for the welfare of children not only to know their origins, but in particular to understand to which family they belonged and who bore responsibility for them as a mother or father. The Government referred to the findings of a general psychological expert report they had commissioned for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children ’ s welfare. They submitted that, according to that report, as a rule, contacts of children with the parent they were not living with became a burden for them and were thus not in their best interests if the parents involved – as was the case here – were unable to limit their conflicts after separation. Moreover, according to the expert ’ s findings, the total absence of contact with a natural father did not, as a rule, affect a child ’ s social and emotional development.",
"52. The Government further considered that a comparative law analysis confirmed that the provisions of Article 1684 and Article 1685 of the Civil Code, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children ’ s best interests did not warrant a different solution. They referred to the findings in a report drawn up in March 2010 on their request by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V. ), a registered association and non-governmental organisation, in which the access rights of biological fathers in 17 other Council of Europe Member States had been analysed (see also paragraphs 34-40 above). They argued that German law, which did not exclude biological fathers in all circumstances from contacts with their children, but allowed contacts only if a social and family relationship existed between biological father and child and if contacts were in the child ’ s best interests, was in line with the general European standards on that subject-matter.",
"53. The Government submitted that the provisions of German law on contacts between biological father and child had also led to a fair outcome in the best interest of the children concerned in the instant case. Even though a biological parent could have an interest in getting to know his children and in building up a relationship with them, the children in the present case were living in a functioning legal and social family whereas the applicant had never lived with them. As the twins had fair skin and fair hair, they would not be able to understand what connected them with the applicant. The legal parents knew best when to inform the twins of their origins. Therefore, it was in the children ’ s best interest and in that of the legal/social family to be protected from outside interference. As regards the findings of the psychological expert in the proceedings before the District Court, they submitted that Mr and Mrs B. considered that the expert had been biased.",
"3. The third- party interveners",
"54. The third- party interveners took the view that in the circumstances of the present case, in which the children were living in their legal family and had never had any contacts with their biological father, it should be for them as the children ’ s legal parents to decide if and when there should be contacts between their children and the biological father. They feared that the children ’ s welfare and that of their whole family would be endangered if they were forced to allow contacts between the twins and the applicant. They underlined that it had been very difficult to keep their big family together. They took the view that the expert report obtained by the District Court could not be taken into consideration in the proceedings before the Court because the Court of Appeal, which had considered the report as irrelevant for determining the case, had not examined their objections to it. They further considered that the applicant had abused Mrs. B. ’ s trust in him and now wanted to use the children exclusively in order to obtain a residence permit in Germany.",
"B. The Court ’ s assessment",
"1. Whether there was an interference",
"55. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004 ‑ IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005 ).",
"56. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L. , cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C; and L., cited above, § 36).",
"57. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L., cited above, § 36; and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Różański v. Poland, no. 55339/00, § 64, 18 May 2006 ).",
"58. The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs ’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life” ( see Znamenskaya, cited above, § 27 with further references ). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man ’ s legal relations with his legal or putative child might concern his “family” life but that the question could be left open because the matter undoubtedly concerned that man ’ s private life under Article 8, which encompasses important aspects of one ’ s personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999, and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010 ).",
"59. In the present case, the Court must determine in the first place whether the decision of the Court of Appeal, upheld by the Federal Constitutional Court, to refuse the applicant access to the twins disregarded the applicant ’ s existing “family life ” with his children within the meaning of Article 8. It notes at the outset that ( as, for instance, in the cases of Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002 ‑ VIII, and L., cited above, §§ 12, 37, but other than, for instance, in the cases of Nylund, cited above, and Hülsmann, cited above ) it is uncontested that the applicant is the biological father of the twins. In examining whether there is, in addition, a close personal relationship between him and the children which must be regarded as an established “family life” for the purposes of Article 8, the Court observes that the applicant has never cohabited with the twins or with their mother and has to date never met the children. In these circumstances, their relationship does not have sufficient constancy to be qualified as existing “family life”.",
"60. However, the Court has found that intended family life may, exceptionally, fall within the ambit of Article 8 in cases in which the fact that family life has not been established is not attributable to the applicant (see paragraph 57 above). This applies, in particular, to the relationship between a child born out of wedlock and the child ’ s biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child ’ s mother and, if married, by her husband. In the present case, the applicant did not yet have any contact with his biological children because their mother and their legal father, who were entitled to decide on the twins ’ contacts with other persons ( Article 1632 § 2 of the Civil Code, see paragraph 2 5 above), refused his requests to allow contact with them. Moreover, under the provisions of German law (Article 1594 § 2 and Article 1600 § 2 of the Civil Code, see paragraphs 16, 29 and 30 above), the applicant could neither acknowledge paternity nor contest Mr B. ’ s paternity so as to become the twins ’ legal father. Therefore, the fact that there was not yet any established family relationship between him and his children cannot be held against him.",
"61. In determining whether, in addition, there were close personal ties in practice between the applicant and his children for their relationship to attract the protection of Article 8 (see paragraph 57 above), the Court must have regard, in the first place, to the interest in and commitment by the father to the children concerned. It notes that the applicant expressed his wish to have contacts with his children even before their birth and repeatedly asked Mr and Mrs B. to be allowed access afterwards. He further pursued his attempt to have contacts with the twins by bringing access proceedings in the domestic courts speedily after their birth. In the circumstances of the case, in which the applicant was prevented from taking any further steps to assume responsibility for the twins, the Court considers that this conduct was sufficient to demonstrate the applicant ’ s interest in his children. As a result, the Court, in particular, does not consider it established that the applicant lacked genuine interest in his offspring and wanted to have contact with the twins exclusively in order to obtain a residence permit. Furthermore, as to the nature of the relationship between the twins ’ natural parents, the Court notes that, even though the applicant and Mrs B. never cohabited, the children emanated from a relationship which lasted some two years and was, therefore, not merely haphazard.",
"62. Having regard to the foregoing, the Court does not exclude that the applicant ’ s intended relationship with his biological children attracts the protection of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant ’ s identity and thus his “private life” within the meaning of Article 8 § 1. The domestic courts ’ decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life.",
"2. Whether the interference was justified",
"63. Any such interference with the right to respect for one ’ s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.",
"64. The decision on access taken by the Court of Appeal, as upheld by the Federal Constitutional Court, was based on Articles 1684 and 1685, read in conjunction with Article 1592 no. 1 of the Civil Code (see paragraphs 2 6-28 above). It was aimed at pursuing the best interest of a married couple, Mr and Mrs B., and of the children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken for the protection of their rights and freedoms.",
"65. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case-law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts) ). It cannot satisfactorily assess whether these reasons were “sufficient” without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66 ). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73 ); depending on their nature and seriousness, the child ’ s best interests may override those of the parents (see Sommerfeld, cited above, § 66; and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004 ).",
"66. According to the Court ’ s well-established case-law, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for a strict scrutiny as they entail the danger that the family relations between a young child and a parent would be effectively curtailed ( see, inter alia, Elsholz v. Germany [GC], no. 25735/94, § § 48-49, ECHR 2000 ‑ VIII; Sommerfeld, cited above, § § 62- 63; and Görgülü, cited above, § § 41-42 ). The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his children is classified as an interference, at least, with “private life”.",
"67. In the present case, the Court of Appeal refused the applicant, the natural father, access to his two children without examining the question whether contact between them would be in the twins ’ best interest. Applying the relevant provisions of the Civil Code (Articles 1684 and 1685), that court argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children ’ s legal father and had not borne any responsibility for them (see paragraphs 1 7 -1 8 above). German law, as interpreted by the Court of Appeal, therefore did not provide for a judicial examination of the question whether contacts between a biological father and his children would be in the children ’ s best interest if another man was the children ’ s legal father and if the biological father had not yet borne any responsibility for the children (“social and family relationship”). Such a “social and family relationship” will notably be assumed if that father lived with the children in domestic community for a lengthy period of time (see, mutatis mutandis, for a further case in which parental rights of a father were, without a further examination on the merits, prima facie not considered to be in the child ’ s best interest, Zaunegger v. Germany, no. 22028/04, § § 44 and 46, 3 December 2009, concerning the general exclusion of judicial review of the attribution of sole custody to the mother of a child born out of wedlock ). The reasons why the biological father had not previously established a “social and family relationship” with his children were irrelevant ( compare paragraph 1 9 above); the provisions thus also covered cases in which the fact that such a relationship has not yet been established was not attributable to the biological father.",
"68. The Court would also note in that connection that a comparative law analysis revealed that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father has a right to contact with his child where a different father exists in law. However, in a considerable number of European States the domestic courts would be in a position to examine on the merits whether contact of a biological father in the applicant ’ s situation with his child would be in the latter ’ s interest and could grant that father access if that was the case (see paragraphs 32-40 above).",
"69. The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances ( see, for instance, Sommerfeld, cited above, § 86, and Zaunegger, cited above, § 45 ). It notes that the approach taken by the Court of Appeal and its interpretation of the domestic legislation led to the applicant being denied any contact with his children, irrespective of the question whether such contact was beneficial for the children ’ s well-being. In taking that approach the Court of Appeal did not give weight to the fact that the applicant, for legal and practical reasons, was not himself in a position to alter the relationship with his children. Under the applicable provisions of the Civil Code (Articles 1592 no. 1, 1594 § 2 and 1600 § 2), he could not become the legal father of the twins. Likewise, he could not obtain a right of access for having borne responsibility for the children because the legal parents, Mr and Mrs B., had the right to decide what contact the twins should have with third persons (Article 1632 § 2 of the Civil Code, see paragraph 2 5 above ) and were therefore in a position to prevent the applicant from assuming any responsibility for them. The legal parents ’ motives for refusing contact did not necessarily have to be based on considerations relating to the children ’ s best interest.",
"70. The Court is aware of the fact that the decision of the Court of Appeal was aimed at complying with the legislator ’ s will to give an existing family relationship between a legal father and a child, who are actually living together with their wife and mother respectively, precedence over the relationship between a biological father and a child (see paragraph 20 above). It further notes that the twins in the present case were living with their legal father and their mother and accepts that the existing family ties between the spouses and the children they actually cared for equally warranted protection. In fact, the case before it differs from many previous applications before the Court concerning questions of access to children in that a fair balance has to be struck by the domestic authorities between the competing rights under Article 8 not only of two parents and a child, but of several individuals concerned – the mother, the legal father, the biological father, the married couples ’ biological children and the children which emanated from the relationship of the mother and the biological father.",
"71. Nevertheless, the Court is not satisfied that, in according protection to the existing family ties between Mr and Mrs B. and the children, the domestic court fairly balanced the competing interests involved in a decision-making process which provided the applicant with the requisite protection of his interests safeguarded by Article 8 and gave sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8. It would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his children are in the latter ’ s best interest. In the present case, however, the Court of Appeal failed to give any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children ’ s best interest.",
"72. Having regard to the foregoing, the Court concludes that the reasons given by the domestic courts for refusing the applicant contact with his children were not “sufficient” for the purposes of paragraph 2 of Article 8. The interference with his right to respect for his private life was therefore not “necessary in a democratic society”.",
"73. There has accordingly been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"74. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"75. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He submitted that he had suffered considerable distress by the refusal to allow him to care for his children.",
"76. The Government did not comment on the applicant ’ s claim.",
"77. The Court considers that the Court of Appeal ’ s denial of any contact between the applicant and his children without examining the question whether such contact would be in the children ’ s best interest must have caused the applicant some distress which is not adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, under this head.",
"B. Costs and expenses",
"78. The applicant also claimed EUR 1,685.27 for the costs and expenses of the proceedings before the administrative courts which he had initiated in order to obtain a residence permit in Germany and thus to be able to see his children. He further claimed EUR 2,262.39 for the costs and expenses of the proceedings before the civil courts. These costs were currently covered by legal aid which he had been granted, but the applicant claimed that he might have to reimburse them. Moreover, he requested reimbursement of EUR 2,015.38 for costs and expenses incurred in the proceedings before the Federal Constitutional Court and another EUR 2,015.38 for those incurred in the proceedings before the Court. All amounts claimed include VAT.",
"79. The Government did not comment on this issue.",
"80. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings in so far as they concern the proceedings in the civil and the administrative courts as the applicant, who had been granted legal aid, failed to demonstrate that he had actually incurred those costs. On the other hand, the costs and expenses for the proceedings before the Federal Constitutional Court, which were aimed at redressing the breach of the applicant ’ s right under Article 8, and for the proceedings before this Court were actually and necessarily incurred and were reasonable as to quantum. It therefore awards the sum of EUR 4,030.76 (including VAT) for costs and expenses incurred both in the domestic proceedings and in the proceedings before the Court, plus any tax that may be chargeable to the applicant.",
"C. Default interest",
"81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
77 | Schneider v. Germany | 15 September 2011 | This case concerned the refusal of German courts to allow the applicant to have contact with a boy who, he claimed, was his biological son. The child’s legitimate father was married to the mother. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the fact that there was no “family life” – it had not been established that the applicant was in fact the child’s biological father and there had never been any close personal relationship between them – could not be raised against the applicant. The question whether he had a right of access or of information in respect of the child, even in the absence of family life, concerned a significant part of his identity and therefore of his “private life”. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1958 and lives in Fulda.",
"A. Background to the case",
"6. From 2001 onwards Mr and Mrs H., a married couple, lived in different places as Mr H. was working in the United Kingdom while Mrs H. remained in Germany. The spouses have a daughter born in 1997. In May 2002 Mrs H. and the applicant entered into a relationship. Mrs H. became pregnant in June 2003.",
"7. The applicant claimed that he was the father of the child to be born, and that the birth had been planned by Mrs H. and him. This was contested by the Government and the third party interveners.",
"8. In September 2003 Mrs H. left the applicant and subsequently went to live with her husband in the United Kingdom.",
"9. On 25 November 2003 the applicant acknowledged paternity of the child to be born before the Heidelberg Youth Office.",
"10. On 6 March 2004 Mrs H. gave birth to a boy, F., in the United Kingdom. Mr and Mrs H. have been living in the United Kingdom since then; they raise F. together with their daughter. They acknowledged that the applicant might be F.’s biological father. They claimed, however, that it could just as well be Mr H. as they had also had intimate relations at the relevant time. The latter allegation is contested by the applicant. The spouses preferred not to verify paternity in the interest of their family relationship.",
"B. The proceedings at issue",
"1. The proceedings before the District Court",
"11. On 20 October 2005 the Fulda District Court dismissed the applicant’s requests of 24 August 2004 for access to F. twice per month and for regular information on the boy’s development.",
"12. The District Court noted that the applicant claimed to be F.’s biological father. The applicant had submitted that he and Mrs H. – who at the time was considering a divorce – had planned to have the child. When Mrs H. had become pregnant, the applicant had accompanied her to her medical consultations as the child’s father. Mr and Mrs H., for their part, had not contested that there had been an intimate relationship between the applicant and Mrs H. at the relevant time. However, Mrs H. had not planned to have a child and Mr H. could equally be F.’s biological father.",
"13. The District Court found that the applicant, even assuming that he was F.’s biological father, did not fall within the group of persons who had a right of access and information under Article 1684 or Article 1685 of the Civil Code (see paragraphs 32-33 below). He did not have a right of access under Article 1684 of the Civil Code as he was not F.’s legal father. According to Article 1592 of the Civil Code (see paragraph 35 below) the boy’s legal father was Mr H., the husband of the child’s mother. The applicant’s acknowledgement of paternity before the Youth Office was not valid under Article 1594 § 2 of the Civil Code as Mr H.’s paternity prevailed (see paragraph 36 below). Nor was he entitled to challenge Mr H.’s paternity as the conditions of Article 1600 § 2 of the Civil Code (see paragraph 37 below) were not met. He had no right to contest Mr H.’s paternity because there was a social and family relationship between Mr H. and F., who was living with Mr and Mrs H.",
"14. The District Court further found that the applicant did not have a right of access under Article 1685 § 2 of the Civil Code either. He claimed to be F.’s biological father, but whether this was in fact the case was unclear. Moreover, he was not a person with whom the child had close ties and there was no social and family relationship between them. The fact that in the applicant’s submission, Mrs H. and he had planned to have the child and had wanted to live together did not alter that conclusion. The applicant had never lived with Mrs H. or the child. The child had lived with Mr and Mrs H., a married couple, since his birth. During that time there had been no possibility for the applicant to build up a social and family relationship with F.",
"2. The proceedings before the Court of Appeal",
"15. On 9 February 2006 the Frankfurt am Main Court of Appeal, without hearing the parties in person, dismissed the applicant’s appeal as well as his request to be allowed to offer F. presents on special occasions.",
"16. The Court of Appeal confirmed the District Court’s finding that the applicant did not have a right of access and information under Article 1684 and Article 1686 of the Civil Code (see paragraph 34 below) as those provisions conferred rights only on a child’s legal parents. Under Article 1592 no. 1 of the Civil Code it was Mr H., who was married to Mrs H. at the time of F.’s birth, who was F.’s legal father. The applicant’s acknowledgement of paternity of F. did not alter that fact as it was not valid (Article 1594 § 2 of the Civil Code).",
"17. Furthermore, the applicant did not have a right of access and information under Article 1685 of the Civil Code. There was no social and family relationship between the applicant and F. as the applicant had so far never even seen F., let alone built up a relationship with him.",
"18. The Court of Appeal considered that the fundamental right to respect for one’s family life under Article 6 § 1 of the Basic Law (see paragraph 30 below) and Article 8 of the Convention did not afford the applicant more far-reaching rights. It was not even established that the applicant was F.’s biological father. Paternity could, however, only be determined in separate proceedings and under certain conditions, which the applicant was most probably unable to meet. In any event, even assuming that the applicant was F.’s biological father, he would still not have a right of access and information, for lack of a social and family relationship with F. The case of Keenan v. Ireland, in which the European Court of Human Rights had strengthened the rights of biological fathers who had not yet built up a social and family relationship with their child, was not comparable to the present case. The facts of that case, in which the child’s mother had given up the child for adoption, were not comparable to those of the present case as the interests of all persons concerned had to be weighed in the balance. In the present case, the applicant’s right in his position as biological father could not outweigh the protection of the family, the mother and the child under Article 6 § 2 of the Basic Law (see paragraph 30 below). In this conflict of interests, anything which could upset a child’s trust in his family had to be prevented. It was preferable that F. grew up in his family without learning about the problematic circumstances of his origin.",
"19. The Court of Appeal’s decision was served on the applicant’s counsel on 14 February 2006.",
"20. On 18 April 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard ( Anhörungsrüge ).",
"3. The proceedings before the Federal Constitutional Court",
"21. In his constitutional complaint dated 14 March 2006 the applicant claimed that the decisions of the family courts refusing him contact with and information about the personal circumstances of his child had violated, in particular, his right to respect for his family life under Article 6 of the Basic Law and Article 8 of the Convention and his right to equal treatment under Article 3 §§ 1 and 2 of the Basic Law (see paragraph 29 below) and Articles 8 and 14 of the Convention. He argued that for a biological father to relate closely to his child, so as to have a right of access and information, it was sufficient that the father was willing to take responsibility for the child. Otherwise, the child’s mother would have the right to prevent any contact between father and child. Such contact, and knowledge of his own origins, were in the child’s best interest. The applicant further claimed that the family courts’ refusal to determine whether he was F.’s biological father and their failure to examine, with regard to the circumstances of his case and by taking evidence, whether contact with him would be in F.’s best interest had disproportionately interfered with his right to respect for his family life. Moreover, the domestic courts’ decisions had discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings.",
"22. On 20 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1337/06). It held that the complaint had no prospect of success as it was, in any event, ill-founded.",
"23. In so far as the applicant had complained about the family courts’ failure to determine paternity of F., his complaint was inadmissible owing to the subsidiarity of a constitutional complaint. The applicant should have contested Mr H.’s paternity in separate proceedings under Article 1600 § 1 of the Civil Code prior to lodging his constitutional complaint.",
"24. In so far as the applicant complained about the family courts’ refusal to grant him access to and information about F., his rights under Article 6 §§ 1 or 2 and Article 3 § 1 of the Basic Law had not been breached.",
"25. The parental rights guaranteed by Article 6 § 2 of the Basic Law afforded protection to the person having parental responsibility, irrespective of whether that person was the biological or the legal parent of the child. In the present case, this provision thus protected Mr H. and not the applicant. Neither Article 1684 nor Article 1686 of the Civil Code, which provided for rights of access and information only for legal parents, nor the decisions of the family courts which were based on those provisions, were in breach of Article 6 § 2 of the Basic Law.",
"26. The family courts’ refusal to grant the applicant access under Article 1685 § 2 of the Civil Code had not violated his rights under Article 6 § 1 of the Basic Law either. Article 6 § 1 protected the relationship between a biological, but not legal, father and his child only where there was a social relationship between them which was based on the fact that the father had borne actual responsibility for the child at least for some time. Conversely, the (presumed) biological father’s wish to take over responsibility or to build up a social and family relationship with the child was not sufficient to attract the protection of Article 6 § 1. As there had never been a social and family relationship between F. and the applicant, the family courts had complied with Article 6 § 1 of the Basic Law in denying the applicant a right of access pursuant to Article 1685 § 2 of the Civil Code.",
"27. Furthermore, the fact alone that the presumed biological father, unlike the biological mother, had no right of access to the child did not render the decisions of the family courts arbitrary and thus in breach of Article 3 § 1 of the Basic Law.",
"28. The decision was served on the applicant’s counsel on 4 October 2006."
] | [
"II. RELEVANT DOMESTIC AND COMPARATIVE LAW",
"A. Domestic law and practice",
"1. Provisions of the Basic Law",
"29. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2).",
"30. Article 6 of the Basic Law, in so far as relevant, provides:",
"(1) Marriage and the family shall enjoy the special protection of the state.",
"(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.",
"2. Provisions of the Civil Code",
"(a) Provisions on access to and information about a child",
"31. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).",
"32. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4).",
"33. Under Article 1685 § 1 of the Civil Code, grandparents and siblings have a right of access to the child if this serves the child’s best interest. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, further provides for persons with whom the child has close ties ( enge Bezugspersonen ) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis (see Article 1685 § 3 of the Civil Code).",
"34. Under Article 1686 of the Civil Code, each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interest.",
"(b) Provisions on paternity",
"35. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).",
"36. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).",
"37. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, paternity is to be established by the family court (Article 1600d § 1 of the Civil Code).",
"B. Comparative law",
"38. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law.",
"39. In a considerable number of States (including Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by first challenging the paternity presumption in place, in some cases within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is also the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non ‑ custodial parent, subject to the child’s best interest.",
"40. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which was submitted by the Government and covered, in addition to Germany, seventeen other Council of Europe Member States, the same applied in Greece. That report, however, interpreted differently the provisions applicable in France and Spain. The applicant submitted that there were several other countries where a biological father could challenge the legal father’s paternity under conditions which were less restrictive than those applicable in Germany, such as Azerbaijan, Lithuania, Moldova, Norway, San Marino and Serbia (see paragraphs 41 and 43 below for the research undertaken by the Court in respect of Azerbaijan). He contested in general terms the comparative law analysis submitted by the Government, arguing that the legal situation in only seventeen of the forty-seven Member States of the Council of Europe was not representative.",
"41. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption, be it in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter regard the law in force in Belgium and Luxembourg).",
"42. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey.",
"43. In these Member States it is open to the biological father to apply for contact only as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact even as a third party, as the law provides a right of contact only to legal parents and (to some extent) to other relatives.",
"44. According to the same expert report of the German Institute for Youth Human Services and Family Law, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic.",
"45. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different preconditions apply for that father to be granted contact if such contact is in the child’s best interest. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interest of the child, without additional preconditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child, unless contacts run counter to the child’s best interest. According to section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is regarded as being “close” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden), and under Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey).",
"46. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may be granted only to close relatives having close personal ties with the child concerned and only if the parents have no or hardly any contact with the child. The report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise.",
"THE LAW",
"I. COMPLAINT CONCERNING THE REFUSAL OF ACCESS TO AND INFORMATION ABOUT F.",
"47. The applicant complained that the domestic courts’ decision to refuse him access to his son and information about his personal circumstances violated his right under Article 8 of the Convention to respect for his private and family life. He further submitted that the domestic courts’ failure to investigate sufficiently the relevant facts concerning his relationship with his son, in particular his paternity, and the question whether access was in the child’s best interest violated Article 8, read in conjunction with Article 6 of the Convention.",
"48. The Court considers that the complaint falls to be examined under Article 8 alone, which, in so far as relevant, reads as follows:",
"“1. Everyone has the right to respect for his private and family life, ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"49. The Government contested that argument.",
"A. Admissibility",
"1. The Government’s submissions",
"50. The Government took the view that the application was inadmissible. They argued that the applicant lodged a total of five applications with the Court concerning the proceedings here at issue. In his first to fourth applications, dated 1 September 2004, 22 December 2005, 21 March 2006 and 30 May 2006, he had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The applications had been lodged while proceedings were still pending before the domestic courts and before he had obtained a decision of the Federal Constitutional Court. As to his fifth application, the applicant had failed to demonstrate that he had complied with the six-month time-limit under Article 35 § 1 of the Convention. The original of his application, dated 4 April 2007, had been received at the Court only on 11 April 2007, and he had failed to demonstrate that the application reached the Court by fax in good time. The Federal Constitutional Court’s decision having been served on the applicant’s counsel on 4 October 2006, the six-month time-limit for lodging an application had expired on 4 April 2007.",
"51. The Government further submitted that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In this respect, the applicant had failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code (see paragraph 37 above). The Federal Constitutional Court had, accordingly, expressly rejected his complaint as inadmissible on that ground. The applicant also could not claim that such proceedings would have excessively delayed the access proceedings, which he had brought only half a year after F.’s birth. The Government further contested that paternity proceedings had been bound to fail, given that the Federal Constitutional Court had not yet ruled on the amended version of Article 1600 of the Civil Code.",
"2. The applicant’s submissions",
"52. The applicant submitted that his application dated 4 April 2007 had been received at the Court by fax on that day and thus within the six-month time-limit under Article 35 § 1 of the Convention. In the alternative, he submitted that, having regard to the Federal Constitutional Court’s well ‑ established case-law and the applicable provisions of the Civil Code, a complaint to that court and to the Frankfurt am Main Court of Appeal had not been effective remedies he had been obliged to exhaust.",
"53. As to the Government’s allegation that he had failed to exhaust domestic remedies in that he had not contested Mr H.’s paternity in separate proceedings under Article 1600 of the Civil Code, the applicant argued that the Government had not demonstrated that such proceedings were an effective remedy he was obliged to exhaust. As the family courts had convincingly noted, such proceedings were bound to fail as Mr H. was living in a social and family relationship with F. Moreover, according to the explicit reasons given by the domestic courts, it had not been decisive whether or not he was F.’s biological father. His claim for access and information had been rejected for lack of a social and family relationship between him and F., even assuming that he was F.’s biological father. In any event, as F’s biological father his proceedings had only been aimed at being granted access to the boy and information about his development. He had not intended to become F.’s legal father by way of separate paternity proceedings, which would, furthermore, have unduly delayed a decision on his request for access to F. Such a course, if successful, would have ended Mr H.’s legal paternity, which might not have been in F.’s best interest.",
"3. The Court’s assessment",
"54. The Court observes that the application at issue in the present case and communicated to the Government is the application dated 4 April 2007. It concerned the applicant’s requests for access to and information about F. and was lodged after the decision of the Federal Constitutional Court was served on the applicant’s counsel on 4 October 2006. The application was received at the Court, according to the information in its case-file, by fax on 4 April 2007 (and subsequently, on 11 April 2007, also by normal post). Accordingly, the application was lodged after all domestic remedies had been exhausted in relation to the requests for access and information. It was also lodged within six months from the date on which the final decision of the Federal Constitutional Court was served on the applicant’s counsel, in compliance with Article 35 § 1 of the Convention. The Government’s objections on those grounds must therefore be dismissed.",
"55. The Court notes the Government’s further objection that the application was inadmissible in so far as the applicant complained about a breach of his fundamental rights in relation to his knowledge of F.’s descent. In the Government’s view, the applicant should have instituted separate paternity proceedings under Article 1600 § 2 of the Civil Code to settle that matter. The Court observes that in the proceedings at issue, the applicant requested access to F. and information about the boy’s personal circumstances. It was only in that context that the applicant submitted that the domestic courts, in order to establish the relevant facts and to be able to rule on his requests, had been obliged to determine, inter alia, whether he was in fact the biological father of F. He had thus not intended, in the proceedings at issue, to be recognised as F.’s legal father – which is the aim of paternity proceedings under Article 1600 of the Civil Code.",
"56. The Court considers that the question whether the applicant was nevertheless obliged to institute paternity proceedings prior to his application to be granted access to and information about F. is closely linked to the substance of his complaint under Article 8 and to the scope of his rights under that provision. It therefore joins the objection raised by the Government in this respect to the merits of the case.",
"57. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicant",
"(i) Submissions on whether there was an interference",
"58. The applicant took the view that the relationship between F. and him as his biological father amounted to family life within the meaning of Article 8 § 1 of the Convention. He submitted that he had had a lengthy relationship with F.’s mother, Mrs H., from May 2002 until September 2003. He claimed that Mrs H. had informed him that her marriage had broken down and that her husband was living together with a new partner in the United Kingdom. Mrs H. and he had lived alternating between their respective homes. They had planned to have the child F. The applicant had accompanied Mrs H. to four medical examinations relating to her pregnancy and Mrs H. had presented him as the child’s father to others, including her parents and her parents-in-law. He had acknowledged paternity of the child to be born as early as 25 November 2003. He had also received some photos of F. at his request.",
"59. The applicant further argued that, in any event, his intended family life with F. was protected under Article 8, given that the child’s legal parents had prevented him from developing a close personal relationship with the boy. In such circumstances, it was sufficient for him to have shown a genuine interest in the child both before and after his birth by planning a common future with the mother and child, acknowledging paternity before the child’s birth and requesting access to and information about the child.",
"60. The applicant further alleged that the domestic courts had not sufficiently established the nature of the relationship between him and Mrs H. The latter had separated from and wanted to divorce her husband, who had been living with another woman. Moreover, they had failed to determine whether he was the biological father of F. despite the fact that they had considered this element relevant to the question whether there was a family relationship between him and F. This failure had also interfered with his right to respect for his private life as protected by Article 8 (the applicant referred to Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI, and Mikulić v. Croatia, no. 53176/99, ECHR 2002 ‑ I). In his view, it was the domestic courts’ duty to determine the biological kinship in access proceedings when it was disputed by the child’s legal parents.",
"(ii) Submissions on whether the interference was justified",
"61. The applicant argued that the interference with his rights under Article 8 had not been justified under paragraph 2 of that provision. In particular, it had not been “necessary in a democratic society”.",
"62. In the applicant’s view, the domestic courts’ interpretation and application of Article 1685 § 2 of the Civil Code had been disproportionate in that it had denied him contacts with his child without examining whether such contacts would be in the child’s best interest. On this point he referred to the Court’s judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010), in which the Court had found that a biological father had a right to contact with his child if such contact was in the child’s best interest. In the applicant’s submission, the domestic courts had failed to weigh the different interests at stake in the proceedings and had accorded absolute predominance to the existing family unit, which was disproportionate. They had failed to take into consideration that contacts with the biological father were generally necessary for the child’s personal identity and development.",
"63. Thereby, the domestic courts had also failed to base their decision to deny the applicant access to and information about F. on sufficient grounds. They had taken the view that a biological father who had never seen his child should never be granted contacts with the child, irrespective of the particular circumstances of each case. However, the question of whether access was in the child’s best interest had to be determined in the circumstances of the case and could not be replaced by standardised legal assumptions.",
"64. The applicant further contested the Government’s argument that a comparative law analysis confirmed that the provisions of German law duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different solution. He took the view that German law accorded a considerably weaker position to the biological father than the applicable provisions in the majority of the European States (see also paragraph 40 above). He argued that the findings made in a report drawn up in March 2010 at the Government’s request by the German Institute for Youth Human Services and Family Law, were not convincing and representative of the legal situation in Europe (see also paragraph 40 above).",
"65. Furthermore, the applicant contested the Government’s argument, based on a general psychological report by expert K. which the Government had commissioned for the proceedings in the Anayo case, that contacts with the biological father did not generally have a positive impact on the child’s well-being. He took the view that contacts between him and F. would be in F.’s best interest as he took an interest in the boy, who had a right to know his origins. Further concealing his origins might rather lead to a loss of confidence in his legal parents. As F.’s origins were known to both of his legal parents already before his birth, there was no risk that contacts between F. and the applicant would threaten the H. family or its reputation, bearing in mind that both Mr and Mrs H. had had an extra-marital relationship.",
"(b) The Government",
"(i) Submissions on whether there was an interference",
"66. The Government took the view that there had not been a violation of Article 8 of the Convention. The domestic courts’ decisions concerning the applicant’s access to and information about F. had not interfered with the applicant’s right to respect for his family life. Referring to the Court’s case ‑ law (they cited, in particular, L. v. the Netherlands, no. 45582/99, and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008), the Government argued that mere biological kinship, without any close personal relationship, was insufficient to attract the protection of Article 8 § 1. In the present case, F. lived together with his mother and his legal father in a stable family unit.",
"67. Moreover, even though the Court had considered that intended family life might, exceptionally, fall within the ambit of Article 8 (the Government referred to Nylund, cited above; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; and Hülsmann, cited above), the Government argued that this was not the case in the circumstances of the present application. They stressed that it had not been proven that the applicant was the biological father of F. and that the child was part of Mrs H.’s and his plans for a common future. However, even assuming that this was the case, it was not sufficient that he had expressed willingness to take responsibility.",
"68. The Government further took the view that the domestic courts’ failure to establish whether the applicant was F.’s biological father had not interfered with the applicant’s right under Article 8 to respect for his family or private life. The domestic courts had assumed for the purposes of the proceedings that the applicant was F.’s biological father and had rejected his request for access to F. for lack of a social and family relationship between them. They had not been obliged to establish the applicant’s paternity in the access proceedings at issue because the applicant should have instituted separate paternity proceedings for this purpose (Article 1600 of the Civil Code, see paragraph 37 above).",
"(ii) Submissions on whether the interference was justified",
"69. Even assuming that there had been an interference with the applicant’s rights under Article 8 § 1 by the refusal of the domestic courts to grant him access to F. and information about the boy’s development, that interference had been justified under Article 8 § 2. The alleged interference with the applicant’s rights had a legal basis in Articles 1685 and 1686 of the Civil Code. It served the legitimate aim of protecting the rights and freedoms of F. and his legal parents, Mr and Mrs H.",
"70. That interference was also necessary in a democratic society. The domestic courts had based their decision that the applicant had not established any social ties with F. that might lead to contacts between them being in the child’s best interest on relevant and sufficient reasons. They stressed that in the Anayo case (cited above) the Court had found that a man whose biological paternity was uncontested had a right to determination, by the domestic courts, whether contacts with his child were in the child’s best interest. In the present case, however, the applicant’s paternity was contested by the legal parents. To allow every man alleging to be the father of a child born in wedlock to seek to have his paternity established could seriously interfere with the rights of the members of the legal family. Moreover, such requests would not necessarily be based on the child’s best interest. It was important to bear in mind that in cases like the present one the fundamental rights of the various persons concerned had to be balanced fairly against one another.",
"71. The Government further took the view that the German legislator, in Articles 1592, 1594, 1600, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. A comparative law analysis confirmed that these provisions, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children’s best interest did not warrant a different approach. German law – which did not exclude biological fathers in all circumstances from contacts with their children but allowed such contacts only if a social and family relationship existed between biological father and child and if the contacts were in the child’s best interest – was in line with the general European standards on the matter.",
"72. In that connection, the Government relied on the findings of a report drawn up in March 2010 at their request by the German Institute for Youth Human Services and Family Law, analysing the access rights of biological fathers in 17 other Council of Europe Member States (see also paragraphs 40, 42 and 44-46 above; the report had already been submitted in the Anayo case, cited above).",
"73. Moreover, the domestic courts had fairly balanced the fundamental rights of all the individuals involved. It was of the utmost importance for the welfare of children not only to know their origins, but in particular to understand to which family they belonged and who bore responsibility for them as a mother or father. Moreover, it was justified to protect an existing family relationship between legal parents and child and the legal parents’ marriage by denying a biological father the right to obtain legal paternity. It fell within the State’s margin of appreciation to decide that the interests of the family, the mother and the child had to prevail over the competing interests of the biological father in obtaining access in cases where that father had shown willingness to take responsibility only by expressing his wish to share a future with the child he fathered. The same applied to the biological father’s claim to be informed about the child’s development.",
"74. The Government stressed in that context that contacts between a biological father and his children did not generally have a positive impact on the children’s welfare; it depended on the individual family situation. They referred to the findings of a general psychological report by expert K. they had commissioned for the proceedings in the Anayo case (cited above) on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with the children’s welfare.",
"75. The Government submitted that, according to that report, as a rule, contacts between children and the parent they were not living with became a burden for them and were thus not in their best interest if the parents involved were unable to limit their conflicts after separation. Moreover, according to the expert’s findings, the total absence of contact with a biological father did not, as a rule, affect a child’s social and emotional development. German legislation, which always gave an existing legal family precedence over biological fathers’ rights, thus guaranteed stability and was therefore in the children’s best interest. If, as the Court found in the Anayo case (cited above), the child’s best interest had to be examined in the particular circumstances of the case, the proceedings – which the alleged biological father might actually bring for reasons other than the child’s best interest – could be a burden on the legal family.",
"(c) The third party interveners",
"76. In her submissions to the Court, Mrs H. contested that she had considered a divorce and had planned a common future with the applicant. She had planned to move to the United Kingdom after having finished her medical training and had met her husband regularly during the time they were living in different places. She had not planned to have a child with the applicant and stressed that her husband could also be F.’s father. She had met the applicant once a week. The applicant had been present, at his request, at two gynaecological examinations but had not been presented as her partner. Her husband had also been present at gynaecological examinations. F. was now six years old and fully integrated into the H. family.",
"77. Mrs H. took the view that contacts between the applicant and F. would jeopardise F.’s welfare and that of her whole family, including her husband, her daughter and another child born in 2007, and would impair the family’s good reputation.",
"78. The third party interveners endorsed the Government’s legal submissions.",
"2. The Court’s assessment",
"(a) Whether there was an interference",
"79. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004 ‑ IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005).",
"80. However, a mere biological kinship between a natural parent and a child, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L., cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C, and L., cited above, § 36).",
"81. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases where the fact that family life has not yet fully been established is not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund; Nekvedavicius; L. § 36; Hülsmann; and Anayo, all cited above; and compare Różański v. Poland, no. 55339/00, § 64, 18 May 2006).",
"82. The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life” (see Znamenskaya, cited above, § 27, with further references). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man’s legal relations with his legal or putative child might concern his “family” life but that the question could be left open because the matter undoubtedly concerned that man’s private life under Article 8, which encompasses important aspects of one’s personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999; and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010).",
"83. In the present case, the Court considers that the domestic courts’ decision to refuse the applicant access to F. and information about F.’s personal circumstances did not interfere with any existing “family life” of the applicant and F. within the meaning of Article 8. Unlike, for instance, in the case of Anayo (cited above, §§ 10, 59), it is contested and has not been established in the proceedings before the domestic courts whether the applicant is in fact F.’s biological father. In any event, there has never been a close personal relationship between him and F. such as must be regarded as an “established family life”. The applicant has never cohabited with F.– or even met him – to date.",
"84. The Court must therefore determine whether the applicant’s intended family life with F. falls within the ambit of Article 8. Under its well ‑ established case-law (see paragraph 81 above), this may, exceptionally, be the case in circumstances in which the fact that family life has not been established is not attributable to the applicant. This applies, in particular, to the relationship between a child born out of wedlock and the child’s biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child’s mother and, if she is married, by her husband (see also Anayo, cited above, § 60).",
"85. In the present case, the Court notes the Government’s argument that the applicant failed to institute separate paternity proceedings under Article 1600 § 2 of the Civil Code. In the access proceedings here at issue, the domestic courts did not determine whether the applicant – who, according to the mother, could be F.’s biological father, but so could her husband – was F.’s biological father. They found, however, that, even assuming the applicant’s biological paternity, his requests for access to and information about F. had to be rejected for lack of a social and family relationship between him and F. (see paragraphs 13, 18 and 26 above).",
"86. Moreover, the Court is not convinced that the applicant could have validly acknowledged paternity or have contested Mr H.’s paternity and thus have been recognised not only as F.’s biological, but also as his legal father. In that latter position, he could have claimed access to F. under the (more favourable) conditions of Article 1684 of the Civil Code, and not only, as he did, under Article 1685 of the Civil Code. Under the applicable provisions of the Civil Code, as interpreted by the domestic courts at the relevant time, the applicant’s acknowledgement of paternity on 25 November 2003 (see paragraph 9 above) was not valid as Mr H.’s paternity prevailed (Article 1594 § 2 of the Civil Code). The applicant further had no right to contest Mr H.’s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code). This is confirmed by the findings of the family courts (see paragraphs 13 and 18). In any event, in the proceedings here at issue, the applicant did not intend to take over the legal position as F.’s father from Mr H. – which is the aim of the separate paternity proceedings under Article 1600 of the Civil Code which the applicant did not institute (see on this matter the Federal Constitutional Court’s judgment, paragraph 23).",
"87. Furthermore, the applicant never had any contacts with F. because Mrs and Mr H., his legal parents who were entitled to decide on his contacts with other persons (see Article 1632 § 2 of the Civil Code, paragraph 31 above), refused his requests for access. In these circumstances, the Court considers that the fact that there was not yet any established family relationship between F. and the applicant cannot be held against the latter.",
"88. In order for the applicant’s intended family life with F. to fall within the ambit of Article 8, the Court has to determine whether there were close personal ties in practice between the applicant and F. (see paragraph 81 above). A relevant factor to verify this is the nature of the relationship between the (presumed) biological parents. Even though the applicant and Mrs H. never moved in together, it is uncontested that they had a relationship for one year and four months – which was thus not merely haphazard – at a time when Mr H. resided in the United Kingdom.",
"89. Moreover, the Court must have regard, in particular, to the interest in and commitment by the applicant to F. both before and after his birth. It notes in this connection that, at least from the applicant’s perspective, it was planned by him together with Mrs H. to have a child. He accompanied Mrs H. to at least two medical examinations relating to her pregnancy. He further acknowledged paternity of the child to be born already before the child’s birth. After F.’s birth, he received photos of the baby at his request and brought proceedings in which he claimed access to F. and information about his personal circumstances relatively speedily, less than six months after the child’s birth. In the circumstances of the case, in which, as shown above, the applicant was prevented from taking any further steps to assume responsibility for F. against the legal parents’ will, the Court considers that he sufficiently demonstrated his interest in F.",
"90. In view of the foregoing, the Court does not exclude that the applicant’s intended relationship with F. fell within the ambit of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and F. – that is, whether the applicant had a right of access to F. and information about his personal circumstances –, even if they fell short of family life, concerned an important part of the applicant’s identity and thus his “private life” within the meaning of Article 8 § 1. The domestic courts’ decision to refuse him contact with and information about F. thus interfered with his right to respect, at least, for his private life (see, mutatis mutandis, Anayo, cited above, § 62).",
"(b) Whether the interference was justified",
"91. Any such interference with the right to respect for one’s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as “necessary in a democratic society”.",
"92. The domestic courts’ decision to refuse the applicant access to and information about F. was based on Article 1684, read in conjunction with Article 1592, Article 1685 and Article 1686 of the Civil Code. It was aimed at pursuing the best interest of a married couple, Mr and Mrs H., and of the (then two) children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken to protect their rights and freedoms.",
"93. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case ‑ law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts)). It cannot satisfactorily assess whether these reasons were “sufficient” without at the same time determining whether the decision ‑ making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73); depending on their nature and seriousness, the child’s best interest may override that of the parents (see Sommerfeld, cited above, § 66, and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004).",
"94. According to the Court’s well-established case-law, it must further be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues or issues concerning information about the child’s personal development, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for strict scrutiny as they entail the danger that the family relations between a young child and a parent will be effectively curtailed (see, inter alia, Elsholz v. Germany [GC], no. 25735/94, §§ 48-49, ECHR 2000 ‑ VIII; Sommerfeld, cited above, §§ 62-63; and Görgülü, cited above, §§ 41-42). The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his child and the refusal of information about the boy’s personal circumstances is classified, at least, as an interference with “private life” (see, mutatis mutandis, Anayo, cited above, § 66).",
"95. In the present case, the Court notes the domestic courts’ finding that, even assuming that the applicant was F.’s biological father, he did not fall within the group of persons who had a right of access to F. and to information about the boy’s personal circumstances. He was not F.’s legal father, or a person with whom F. had close ties because there had never been a social and family relationship between the two. As F. had lived with Mr and Mrs H. since his birth, there had been no possibility for the applicant to build up such a relationship with F. (see paragraphs 13-14, 16 ‑ 18 and 24-27 above). The domestic courts thus refused the applicant access to F. – assuming that he was F.’s father – without examining whether contact between F. and him, in the particular circumstances of the case, would be in F.’s best interest. They further refused the applicant’s request at least to be given information about F.’s personal development. There again, the domestic courts took their decision without examining in the particular circumstances of the case whether giving such information would be in the child’s best interest (for instance, in order to maintain at least a light bond with the presumed biological father) or whether, at least in this regard, the applicant’s interest had to be considered as overriding that of the legal parents.",
"96. In determining whether the reasons given by the domestic courts for refusing the applicant access to and information about F. were “sufficient” for the purposes of paragraph 2 of Article 8 and the interference with the applicant’s private life thus “necessary in a democratic society”, the Court refers, first, to the findings in its judgment of 21 December 2010 in the case of Anayo (cited above). That case concerned the refusal of the German courts to grant Mr Anayo, who was indisputably the biological father of twins who lived with their mother and her husband, access to his children. The Court observed, in that application, that the Court of Appeal, applying Articles 1684 and 1685 of the Civil Code, had refused the applicant access to his children without giving any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children’s best interest. The domestic court had argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children’s legal father, had not borne any responsibility for them and thus had no social and family relationship with them. The Court accordingly found that the domestic court had failed to fairly balance the competing rights involved. As the reasons given by it for refusing the applicant contact with his children had thus not been “sufficient” for the purposes of paragraph 2 of Article 8, Article 8 had been violated (see ibid., §§ 67-73).",
"97. The Court further observes that the facts at issue in the present application differ from those in the Anayo case mainly in so far as the certainty of the respective applicants’ paternity is concerned. It was uncontested in the Anayo case that the applicant was the biological father of the children concerned. In the present case, however, the mother of the boy F. acknowledged that the applicant might be F.’s father, but claimed that so might her husband, and it was not established by the domestic courts whether or not the applicant was F.’s father.",
"98. However, the Court considers that, in the circumstances of the case, this difference is not such as to distinguish the present application from the Anayo case. In fact, it becomes clear from the domestic courts’ reasoning that it was irrelevant for their decision that the applicant was only presumably and not uncontestedly the biological father of F. In reasoning their decisions, the domestic courts assumed the applicant’s paternity for the purposes of the proceedings (see paragraphs 13, 18 and 26). They rejected the applicant’s request for contact with (and information about) F. – as did the domestic courts in the Anayo case – because the applicant was not F.’s legal father and there had never been a social and family relationship between him and F. In both cases, the reasons why the biological father had not previously established a “social and family relationship” with the children / child concerned had been irrelevant for the domestic courts’ findings. The courts thus did not give any weight to the fact that the respective applicants, for legal and practical reasons, were unable to alter the relationship with the children / child concerned (see Anayo, cited above, §§ 67, 69 and paragraphs 14, 17-18 and 26 above).",
"99. The Court would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his child are in the latter’s best interest. It has further noted the Government’s argument, by reference to the comparative law analysis and the general psychological expert report of expert K. they had submitted to the Court, that the German legislation applied by the courts in the present case was in the best interest of the children concerned. They had further argued that always giving an existing legal family precedence over biological fathers’ rights guaranteed stability, whereas examining the child’s best interest in the particular circumstances of the case brought the burden of the proceedings to bear on the legal family (see paragraph 75 above).",
"100. The Court cannot but confirm, however, its approach taken in the Anayo judgment (cited above, §§ 67-73), as well as in the case of Zaunegger v. Germany (no. 22028/04, §§ 44 et seq., 3 December 2009, which concerned the general exclusion from judicial review of the attribution of sole custody to the mother of a child born out of wedlock; the domestic courts, applying the relevant provisions of the Civil Code, also considered parental rights of a father prima facie not to be in the child’s best interest, without further examination on the merits). Having regard to the realities of family life in the 21 st century, revealed, inter alia, in the context of its own comparative law research (see paragraphs 38-46 above), the Court is not convinced that the best interest of children living with their legal father but having a different biological father can be truly determined by a general legal assumption. Consideration of what lies in the best interest of the child concerned is, however, of paramount importance in every case of this kind (see paragraph 93 above). Having regard to the great variety of family situations possibly concerned, the Court therefore considers that a fair balancing of the rights of all persons involved necessitates an examination of the particular circumstances of the case. It further had regard to the Government’s argument that this approach involved proceedings which placed a burden on the legal family (see paragraph 75 above). The Court notes, however, that proceedings requesting access to children may be and are in practice already currently instituted by biological fathers.",
"101. Having regard to the foregoing, the Court further concludes that the Government’s objection that the applicant, by failing to institute separate paternity proceedings, did not exhaust domestic remedies in relation to his complaint that the domestic courts failed to establish his paternity of F. must be rejected for the following reasons.",
"102. The Court is not convinced that separate paternity proceedings were an effective remedy the applicant had to exhaust in the access and information proceedings here at issue. Not only were such proceedings bound to fail on the basis of the existing domestic law, the applicant having no right to contest Mr H.’s paternity as the latter was living with F. (Article 1600 § 2 of the Civil Code, see paragraph 37 above), but they are aimed at obtaining status as a child’s legal parent and terminating another man’s legal paternity, and must therefore be considered to have a fundamentally different and more far-reaching objective than the mere establishment of biological paternity for the purposes of having contact with the child concerned and information about that child’s development.",
"103. The Court notes in this connection the Government’s argument that there was a danger of abuse in allowing every man alleging to be the father of a child born in wedlock to request to have his paternity established (see paragraph 70 above). It does not consider, however, that its finding that the domestic courts failed to examine, in the particular circumstances of the case, whether contacts between F. and the applicant would have been in F.’s best interest would have led to such a result. The question of establishment, in access proceedings, of biological – as opposed to legal – paternity will only arise if, in the special circumstances of the case, contacts between the alleged biological father – presuming that he is in fact the child’s biological parent – and the child are considered to be in the child’s best interest.",
"104. Having regard to the foregoing, the Court, referring, mutatis mutandis, to the detailed reasoning in its judgment in the case of Anayo (§§ 67-73), therefore considers that the domestic courts did not fairly balance the competing interests involved in the decision-making process and thus failed to provide the applicant with the requisite protection of his interests safeguarded by Article 8. They failed to give any consideration to the question whether, in the particular circumstances of the case, contact between F. and the applicant would be in F.’s best interest. They further did not examine whether, in the particular circumstances of the case, allowing the applicant’s request to be given at least information about F.’s personal development would be in the child’s best interest or whether, at least in this regard, the applicant’s interest should have been considered as overriding that of the legal parents. They thus did not give sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8. The interference with the applicant’s right to respect for his private life was therefore not “necessary in a democratic society”.",
"105. There has accordingly been a violation of Article 8 of the Convention.",
"II. COMPLAINT CONCERNING DISCRIMINATION",
"106. The applicant further complained that the domestic courts’ decisions discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings. He relied on Article 8, read in conjunction with Article 14 of the Convention; the latter provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"107. The Government contested that argument.",
"108. The Court refers to its above findings that the applicant’s rights under Article 8 were violated. The domestic courts failed to give any consideration to the question whether, in the particular circumstances of the case, contact between F. and the applicant was in F.’s best interest. They further failed to examine whether allowing the applicant’s request at least to be given information about F.’s personal development was in the child’s best interest or in the applicant’s overriding interest. The interference with the applicant’s right to respect for his private life was therefore not “necessary in a democratic society” (see paragraphs 91-105 above). Having regard to this conclusion, it does not consider it necessary to determine whether the domestic courts’ decisions thereby discriminated against the applicant in breach of Article 8 read in conjunction with Article 14 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"109. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"110. The applicant claimed not less than 25,000 euros (EUR) in respect of non-pecuniary damage. He had suffered distress as a result of the domestic courts’ refusal of any contacts with his son or information about his development.",
"111. The Government took the view that there was no room for an award in respect of non-pecuniary damage as it had not been proven that the applicant was F.’s father. In any event, the applicant’s claim was excessive.",
"112. The Court considers that the domestic courts’ decision not to grant the applicant access to F. and information about his development without examining the question whether, in the particular circumstances of the case, such contact was in F.’s best interest or in the applicant’s overriding interest must have caused the applicant some distress which is not adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, under this head.",
"B. Costs and expenses",
"113. Submitting documentary evidence (including all bills and agreements as to the fees), the applicant also claimed a total of EUR 12,354.39 (including VAT) for the costs and expenses incurred, including EUR 6,387.18 for the costs and expenses before the domestic courts (Fulda District Court, Frankfurt am Main Court of Appeal and Federal Constitutional Court) and EUR 4,279.89 for those incurred before the Court (that is, a total of EUR 10,667.07).",
"114. The Government argued that it was not in a position to examine, on the basis of the documents submitted by the applicant, whether the costs and expenses claimed by the applicant had been necessarily incurred and were reasonable as to quantum.",
"115. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds that the costs and expenses for the proceedings before the domestic courts were aimed at redressing the breach of the applicant’s rights under Article 8. Having regard also to the documents submitted by the applicant, it considers it reasonable to award the sum of EUR 10,000 (including VAT) covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant.",
"C. Default interest",
"116. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
78 | Diamante and Pelliccioni v. San Marino | 27 September 2011 | This case concerned the procedure for awarding parental authority and custody in respect of a child whose mother was Italian and whose father was a San Marino national. The applicants, the mother and the child, complained in particular about a decision ordering the child to be returned to San Marino to live with her father and to attend school there. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. In general, the domestic courts had conducted the proceedings with due diligence; the measure in question pursued the legitimate aim of protecting the rights and freedoms of the child and his parents; the child’s best interests and the family’s particular situation had been taken into account; and a change of award had been envisaged if necessary. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The first applicant, while resident in San Marino, had a relationship and was cohabiting with Mr X. in San Marino.",
"9. On 9 December 2004 the second applicant was born of this relationship, in Rimini, Italy. She was granted dual nationality, Italian and San Marinese. The family lived in X. ’ s villa in San Marino.",
"10. Mr X. left the villa in July 2006 and allegedly stopped sending the applicants any financial allowances.",
"A. The custody proceedings",
"11. On 8 November 2006 Mr X. lodged a request with the San Marino Tribunal for sole custody and restitution of the villa.",
"12. Following a deferral request by Mr X., the first hearing was held on 4 December 2006, the date when the first applicant intervened in the proceedings, and demanded custody of the child, the right to remain living in the family home and maintenance.",
"1. The first custody decree",
"13. By a decree of 4 December 2006, the relevant court, namely the Commissario della Legge of San Marino, granted custody to the first applicant. Mr X. was entitled to visiting rights as follows: Mondays and Wednesdays from 2 p.m. to 9 p.m. and one day (Saturday or Sunday) on alternate weekends from 10.30 a.m. to 6 p.m. It refused to decide on maintenance, inviting the parents to reach an agreement. It further ordered the intervention of the “ servizio minori ” (children ’ s services) to verify each parent ’ s aptitude and the quality of the relationship with the child.",
"2. The decisions on the respect of contact rights, maintenance, schooling and the second custody decree",
"14. On 14 December 2006 the first applicant requested children ’ s services to decide on the transfer of the second applicant to a kindergarten in Rimini, Italy. The aim of this request was to allow the applicants to live with the second applicant ’ s grandmother for economic reasons, since Mr X. had allegedly failed to pay them any allowances.",
"15. On 18 December 2006 Mr X. requested an urgent hearing, complaining that for the last two weekends the first applicant had denied him contact rights and had changed the arrangements. Consequently, the Commissario della Legge, considering that the father had a right to see his daughter every weekend, requested children ’ s services to intervene in order to ensure that contact rights were respected.",
"16. On 21 December 2006 the first applicant reiterated that on 4 December 2006 the court had ordered visits on the Saturday or Sunday of alternate weekends, and not every weekend as interpreted on 18 December 2006.",
"17. On 22 December 2006 the first applicant requested to take the child on a five-day holiday. The Commissario della Legge ordered the relevant notification.",
"18. On 1 March 2007 the Commissario della Legge ordered children ’ s services to consider whether transfer to the Rimini institution would be in the interest of the minor.",
"19. On 15 March 2007 children ’ s services filed their first report, stating that it was important to consider the needs of the child who “will probably reside in San Marino ”. The report noted that the institution in Rimini hosted older children, and that Mr X. showed his availability to pick up the child from school if it were in San Marino. It advised that attending a nursery in San Marino would allow better monitoring on the part of the children ’ s services.",
"20. On 10 April 2007, in view of the announced holiday, children ’ s services temporarily amended the visiting schedule, in agreement with the parties.",
"21. On 12 April 2007 the first applicant informed the Commissario della Legge that she had found a job in Rimini, where she planned to move, and therefore she was ready to leave the villa.",
"22. On 17 April 2007 the Commissario della Legge, having regard to the children ’ s services ’ report (above) and after soliciting further reports, held that, until children services gave different advice, the child should remain in San Marino. It referred the case back to children ’ s services.",
"23. Following further submissions, on 5 May 2007 the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due.",
"24. On 18 May 2007 the Commissario della Legge, having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa, decided that Mr X. had to pay the applicants maintenance amounting to 500 euros (EUR), as from November 2006.",
"25. On 31 May 2007 children ’ s services drew up another report, finding that although conflict between the parents persisted, the father had an excellent relationship with the daughter. It advised that there be joint custody of the child, who should be placed prevalently with the mother in view of her tender age; it proposed two possible contact schedules, both eventually including two overnight stays per week. It further suggested maintaining the current schooling situation.",
"26. On 14 June 2007 the first applicant, having signed a lease agreement for an apartment in Rimini the previous month, informed the Commissario della Legge that she intended to move there with her daughter, while maintaining their official residence in San Marino.",
"27. On 21 June 2007 the first applicant made further submissions. It appears that the applicants moved to Rimini on the same day.",
"28. By a decree of 25 June 2007 the Commissario della Legge granted joint custody, holding that the child should remain living in Rimini, where she was settled with the mother, and should continue to attend the Rimini kindergarten for the following school year, as this appeared to be in the best interests of the child. It further ordered children ’ s services to monitor the situation. This decision was based on the children ’ s services report of 31 May 2007 (see above).",
"3. The residence order",
"29. On 9 August 2007 children ’ s services submitted a new report, which found that the first father-child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child. It noted that between 13 and 16 July the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children ’ s services that visits could not take place because of her or her daughter ’ s alleged illnesses or because she refused to give up the daughter.",
"30. In August 2007 Mr X. lodged various submissions, including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the Italian State.",
"31. By an order of 20 August 2007 the Commissario della Legge specified that the order of 25 June 2007 must be considered “provisionally executable”.",
"32. On 22 August 2007 children ’ s services drafted a report, which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children ’ s services.",
"33. Both parties continued to make regular submissions.",
"34. By an order of 21 September 2007, the Commissario della Legge held that unilateral changes to scheduled visits had no effect, since the arrangements had been established by prior orders, which were subject to alteration by future court orders. It held that Mr X. had the right to have his child by his side, unsupervised, and that the child should maintain residence in San Marino. It further explained that residence meant “a situation of permanent stay in a territory”.",
"35. A children ’ s services report of 17 October 2007 related that the first applicant was failing to take the second applicant to children ’ s services and that monitoring had become difficult since 9 August 2007.",
"4. The order regarding the court ’ s competence and the third custody decree",
"36. On 24 October 2007 the first applicant challenged the competence of the San Marino Tribunal, namely the Commissario della Legge, in so far as proceedings were pending before the Tribunal of Bologna, Italy (see below). The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started.",
"37. On 12 November 2007 the Commissario della Legge rejected the objection. It held that the first applicant had accepted the San Marino jurisdiction throughout all the proceedings and various decrees; in effect this request had been made out of time.",
"38. On the merits of the pending case, the Commissario della Legge found no reason to alter the current custody order. Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision - making. Joint custody and support from children ’ s services allowed the creation of an educational programme for the parents to allow for the growth and well - being of the child. This was what the parents had to aim for during the current joint custody regime. Welcoming the appointment of ex parte experts/counsellors, it reiterated the need for supervision by children ’ s services. Only upon further reports by children ’ s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in San Marino would be more appropriate.",
"5. The fourth custody decree",
"39. On 15 November 2007 Mr X. requested that the child be returned to San Marino, offering the mother lodgings with the daughter. On 9 January 2008 Mr X. enrolled the child in a nursery in San Marino, notwithstanding that she was still living in Rimini.",
"40. On 24 January 2008 Mr X. made a request for sole custody and for the child to be moved to a school in San Marino.",
"41. On 28 January 2008 the Commissario della Legge requested children ’ s services to draw up a report on the merits of schooling in San Marino.",
"42. The ensuing report of 8 February 2008 considered that Mr X. was having difficulty seeing the child, as for a while the mother had unilaterally interrupted the father ’ s visits ( for example, nine out of fourteen overnight stays with the father had not occurred and six consecutive Sunday visits had been missed), and that the mother was not cooperating with children ’ s services. Consequently, the establishment of an educational programme had not been successful. It found on the one hand that the first applicant ’ s anger towards the father was persistent and involved the child. On the other hand the father had shown consideration and put the needs of the child first. He sincerely loved his daughter and was cooperating with children ’ s services. The father and the child had a warm and caring relationship, and the child felt comfortable and happy in his presence. It appeared however that the child might have fears of losing her loved ones, probably due to the various moves, which had also detached her from members of her extended family. The report therefore advised the grant of temporary sole custody to the father, with regular supervised visits by the mother, until this could be reversed. It concluded that schooling should be in accordance with the custody decision, as this would be favourable to the child ’ s emotional stability, notwithstanding the unfortunate moves of house. It also advised psychotherapeutic and parental education support for the parents, together with further monitoring by children ’ s services.",
"43. On 12 February 2008 the Commissario della Legge ordered that an extraordinary hearing of the parties ( comparizione delle parti ) be held on 19 February 2008. The order was notified on 14 February 2008. The next day the first applicant ’ s main lawyer communicated his inability to attend and requested an adjournment. The opposing party opposed this request, but no notification reached the first applicant ’ s legal counsel.",
"(a) A period of absence",
"44. On 13 February 2008 Mr X. collected the child and did not return her. On the same day Mr. X ’ s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits. The child could, however, be contacted by telephone at specific times.",
"45. On 15 February 2008 the first applicant ’ s representatives requested X. ’ s lawyers to inform them where the child had been taken, the date of return, and arrangements as to the handing over of the child. X. ’ s lawyers ’ reply was immediate but inconclusive, in that, no details had been given. Thus, the first applicant ’ s representatives informed children ’ s services about what had happened and complained about the father ’ s lawyers. In reply, Mr X. ’ s lawyers explained that the child was on holiday with her father and that they did not know where they had gone. On the same day, the first applicant ’ s lawyers requested that the hearing set for 19 February be deferred due to the inability of her regular lawyer, who had dealt with the relevant experts, to attend the hearing for professional reasons. Mr X. ’ s lawyers opposed this, however, it appears that no notification of this opposition took place.",
"46. The following day, the first applicant lodged written submissions, reiterating that in accordance with the decree of 25 June 2007 the child had been placed with the mother for the school year. Complaining about Mr X. ’ s actions and those of children ’ s services, she requested the tribunal to restore the status quo ante.",
"47. On 18 February 2008, while the child was still missing, Mr X. ’ s representatives requested that the minor be placed in San Marino. They emphasised that the second applicant ’ s presence outside San Marino limited the San Marino courts ’ power over the second applicant ’ s rights abroad. The first applicant objected, maintaining that the child should return to Rimini. She further insisted that any missed paternal visits in the summer of 2007 had not been malicious but had been the result of physical circumstances.",
"(b) The custody decree of 19 February 2008",
"48. On 19 February 2008 a substitute judge sat as the Commissario della Legge. The first applicant, through her co- lawyer, referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co- lawyer, who was more aware of the case details. Moreover, there had been a lack of collaboration on the part of children ’ s services and counsellors, her counsellors had not been summoned, and the child had been kidnapped by the father. Her request was refused without detailed reasons. The substitute judge considered it opportune to take a decision urgently. Consequently, the first applicant ’ s co- lawyer withdrew from the case. A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused.",
"49. The case was therefore heard without representation for the first applicant. Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor. After the cross-examination was over, the substitute judge delivered his decision on the same date.",
"50. He found that, in view of the report by children ’ s services of 17 October 2007 and 8 February 2008, the child risked being denied the benefit of her father ’ s presence, as the first applicant had prevented the father ’ s visits and obstructed children ’ s services ’ meetings. Any argumentation by the first applicant presented in her written pleadings had not been persuasive. Consequently, while upholding joint custody, it was ordered that the child live with her father in San Marino and that she be transferred to the San Marino nursery from 20 February 2008. The mother was entitled to supervised visits from Monday to Friday from 13.15 to 15.00, or as children ’ s services deemed opportune.",
"6. The continuation of proceedings",
"51. On 22 February 2008 the Commissario della Legge, acknowledging that there were no obstacles to acceding to the first applicant ’ s request to spend a weekend with her daughter at the father ’ s house, requested the children ’ s services to draw up a new calendar of visits. On the same date, following Mr X. ’ s request for an authorisation (“ nullaosta ”) for the child ’ s passport, the tribunal solicited the first applicant ’ s agreement, noting that expatriation of the minor would in any case require the tribunal ’ s authorisation.",
"52. On 25 February 2008 children ’ s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father. The report concluded that persistent pressure by the mother may lead to Parental Alienation Syndrome.",
"53. On 26 February 2008 the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother ’ s care was for medical reasons.",
"54. On 27 February 2008 Mr X. requested the suspension of the time-limits for appeal, pending friendly settlement negotiations. On the same day children ’ s services reported that mother-child visits should take place at the father ’ s house. It proposed a new schedule of visits, which would eventually include an overnight stay. It also included visits with the maternal extended family.",
"55. The following day, Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to San Marino. He alleged that she was in bad faith and reiterated that, according to The Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”), visits with a parent who had removed a child required special precautionary measures. On the same day children ’ s services prepared a calendar of supervised visits up to August 2008, the date of the entry into force of The Hague Convention.",
"7. The appeal proceedings",
"56. On 6 March 2008 an appeal was lodged against the interim order of 19 February 2008 before the “ Giudice delle Appellazioni Civili ”. Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother, Mr X. ’ s representatives proposed a favourable calendar for visits, namely Mondays, Wednesdays and Fridays from 6 .30 p.m. to 9. .30 p.m., alternate Saturdays from 4 .30 to 7 .30 p.m. and alternate Sundays from 9 a.m. to 12 noon, plus other visits by the extended family and in due course overnight stays by the mother. On the same day the first applicant accepted the proposed schedules, complaining that children ’ s services were in practice reducing her visit times by half an hour and at times by one hour due to other engagements, but objected to the suspension of the proceedings. She further submitted one of the second applicant ’ s passports to the court.",
"57. On 17 March 2008 the first applicant appealed, complaining of procedural irregularities pertaining to the interim decree of 19 February 2008. In particular she alleged a breach of her right to defence, since she had not been represented. Unlike her, Mr X. had had the benefit of counsel. Moreover, there had not been adequate notification, and therefore the hearing had not been in accordance with the law. Furthermore, the substitute judge should have abstained, as he had decided another case between the same parties.",
"58. On 19 March 2008 Mr X. cross-appealed.",
"59. On 27 March 2008 Mr X ., in his cross - appeal, lodged a request for sole custody and contended that the first applicant had breached her judicial obligations, having allegedly taken the child away, and had attempted to evade San Marino jurisdiction. He emphasised that in view of Italy ’ s delay in accepting San Marino ’ s accession to The Hague Convention dated 14 December 2006, the latter had not yet entered into force between the two states. In accordance with the treaty, transfer of the minor to Italy would be unlawful.",
"60. On the same date the first applicant submitted that she was having difficulty visiting her daughter due to her working hours. On 22 April 2008 the first applicant ’ s psychological counsellor wrote to children ’ s services offering the first applicant as available for discussion and collaboration. She further requested children ’ s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child ’ s supervision. On 23 April 2008 the mother again made a request for information and to see the relevant video recordings of her visits to her daughter.",
"61. On 24 April 2008 it was established that cross-examination was necessary for the purposes of the case.",
"62. On 30 April 2008 children ’ s services informed the first applicant that her request had been sent to the relevant judicial authorities, since information about minors was covered by professional secrecy.",
"63. In the meantime various email exchanges took place between April and June in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges (see below) against Mr X. Meetings with counsellors and a psychologist were held.",
"64. Following a request from the first applicant, on 6 May 2008 the Commissario della Legge ordered the urgent transmission of the file to the appeal judge.",
"65. On 12 May 2008 the Giudice delle Appellazioni Civili remitted Mr X. ’ s appeal of 27 March 2008 to the Commissario della Legge, who was competent to revise the matter and give any other determination in respect of the placement of the child.",
"66. On 16 May 2008 the primo termine probatorio was opened in relation to the original appeal. Hearings and/or submissions were made on 23 October 2008, 12 and 19 March, 23 April, 18 and 13 June, 3 July and 26 October 2009 and 18 January 2010. Following the requests and the consequent submission of rogatory letters, it was established that the first applicant ’ s lawyer had judicial engagements in Rimini, explaining his absence from the hearing in question.",
"67. The appeal proceedings against the decision of 19 February 2008 were eventually decided on 7 March 201 1 (see paragraph 137 below).",
"8. Judicial and non-judicial isolation in San Marino",
"68. On 15 April 2008 the first applicant ’ s representatives complained to children ’ s services that the child was isolated, in that she was constantly supervised.",
"69. In a report dated 22 April 2008 children ’ s services requested the judge to prohibit the legal representatives of the parties from attending the child ’ s visits.",
"70. On 5 June 2008 the first applicant ’ s lawyers made submissions in reply, highlighting the importance of re-establishing mother-child relations. On the same day Mr X. reiterated his request for temporary sole custody (see above 27 March 2008). Although not intending to travel with the child, he requested a San Marino passport for the second applicant.",
"71. On 6 June 2008 the Commissario della Legge noted that revision of the decree could only take place if new events took place subsequent to the decree, in order to avoid any overlap with the appeal judgment. He further requested the parties to agree on the mother ’ s visiting schedule, on further cooperation for the benefit of the child, and lastly asked whether the mother agreed to the issue of a San Marino passport, which would be retained by the court together with the Italian passport, any travel having to be agreed by the parents or authorised by the court.",
"72. On 19 June 2008 Mr X. reiterated that the prohibition on the child ’ s leaving the country needed to be maintained until the entry into force of the Hague Convention. He further requested a definitive judgment in favour of sole custody to be executable immediately on Italian territory.",
"73. In the meantime, further submissions were made, together with the reports of the parents ’ psychologists.",
"74. On 11 July 2008, in an apparently informal way, the Commissario della Legge confirmed that the child could not leave San Marino.",
"75. On 15 July 2008 the Commissario della Legge nominated an expert and ordered an expert opinion (“ consulenza tecnica d ’ ufficio ” – “CTU”) in respect of: the child ’ s relationship with the parents, the personal characters of the parents, their ability to take on parental functions, in particular vis - a - vis granting the other parent contact with the minor, and any proposals in respect of the situation.",
"(a) order related to video recordings",
"76. On 16 July 2008 the first applicant made an urgent request to be allowed to take her child to Italy before The Hague Convention entered into force, namely from 21 to 28 July 2008. She further requested the release of the information and related videotapes of mother-child meetings before the child services, and that children ’ s services and the San Marino hospital issue a report on the psycho-physical health of the child.",
"77. Following a request by Mr X., by a decree of 17 July 2008, the Commissario della Legge noted that the second applicant ’ s San Marino passport had been submitted to the authorities, and requested the first applicant to submit the latter ’ s Italian passport. It further held that the decree of 19 February 2008 fell within the competence of the Giudice delle Appellazioni Civili. It then held that the CTU ’ s opinion was required to define an educational project and the advice of children ’ s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child. It refused the pending request for the video recordings of their visits, on the basis that they had no right to such materials, children ’ s services acting as an assistant to the judge in this connection and not as a court expert.",
"(b) Continued isolation",
"78. On 22 July 2008 the first applicant contacted children ’ s services to inform them as regards her availability to discuss the forthcoming holiday calendar. The following day a new calendar of visits, together with a short report, was submitted to the judge by children ’ s services.",
"79. On 23 July 2008 children ’ s services presented another report in respect of the request relating to the period of 19 to 28 July 2008, during which the first applicant would have been on leave. They suggested daily visits from Tuesday 22 to Monday 28 July 2008, ranging from two to six hours per day, including hour-long visits with the extended family.",
"80. Following a request by the mother, on 24 July 2008 the CTU requested children ’ s services to issue instructions for the period after 28 July 2008.",
"81. On 29 July 2008 children ’ s services drafted a new calendar of visits, ranging from three to six hours per day (no visit on Saturday), until Sunday 3 August. The latter was acknowledged by the judge.",
"82. On 1 August 2008 the first applicant ’ s submissions included a request for a continuous period of mother-child care to allow her to take the child on holiday, after she had been confined to San Marino for nearly six months. On the same day the Commissario della Legge, noting that children ’ s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave, ordered an immediate reply to the pending, urgent request for the extended period of the child ’ s placement with the mother from 9 to 17 August 2008.",
"9. Release and period of agreement",
"83. By emails dated 1 July 2008 the first applicant requested children ’ s service to allow a more flexible calendar of visits. On 8 August 2008 children ’ s services issued a new calendar for the relevant period, only allowing one overnight visit and permitting most of the remaining visits to take place outside San Marino, but they had to be in the presence of the father. It suggested that changes should be made gradually. The latter was acknowledged by the judge.",
"84. Following the mother ’ s objection, on 12 August 2008 the previous arrangement was reiterated by the judge.",
"85. On 18 August 2008 Mr X. gave his consent for an extended visit between mother and child. On the same date the Commissario della Legge asked for a report from children ’ s services on the development of the visits in the preceding week, and for a new calendar to be issued.",
"86. On 19 August 2008 children ’ s services reported that the visits had been regular, organised and fruitful. The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents. They issued a new calendar of visits, suggesting entire alternate weekends with each parent, with weekend intervals when each parent had the child for one day, together with overnight stays during the week at her mother ’ s home.",
"87. By a decree of the same date the Commissario della Legge confirmed that, the disputes having been resolved, the visits should remain in accordance with the children ’ s services report of the same day. Moreover, since Mr X. was able to visit the child in Italy, prohibition on the parents ’ taking the child outside the country remained valid only in respect of States other than Italy and San Marino.",
"10. Insight into medical conditions during the continuation of proceedings",
"88. By an order of 12 September 2008, a substitute judge for the Commissario della Legge held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted.",
"89. On 16 September 2008 the CTU met the parents ’ technical counsellors (“CTPs”).",
"90. On 23 October 2008 Mr X. submitted that he was the subject of ongoing criminal proceedings in Italy (see below) and reiterated that the first applicant had not submitted the second applicant ’ s Italian passport.",
"91. On 30 November 2008 psychological reports on both parents were drawn up. The report about the mother which, inter alia, mentioned depressive and impulsive attitudes, appeared less favourable than that of the father, although it appeared from the reports that Mr X. was immature.",
"92. Following further submissions, by a decree of 19 December 2008, the Commissario della Legge acknowledged that the second applicant would spend the week of 24 December to the morning of 31 December 2008 with the father and from the afternoon of 31 December 2008 to 7 January 2009 with the mother. Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling. He further authorised the father to travel with the child during the relevant period and allowed the release of the passport.",
"93. According to a children ’ s services report of 20 December 2008, the second applicant was having difficulty adjusting to (her parents ’ ) two different environments.",
"94. Negotiations between the parents continued : however, the first applicant refused to drop the pending criminal charges against Mr X.",
"95. On 22 December 2008, Mr X. requested to stop paying maintenance, stating that each parent should be financially responsible for the child for the period in which she was with them.",
"96. On 2 and 12 February 2009 the Commissario della Legge, confirmed the qualifications of the first applicant ’ s CTP. On 24 February 2009 a meeting with the parties ’ CTPs took place.",
"97. A children ’ s services report dated 25 February 2009 found that the second applicant ’ s character had deteriorated compared to the previous year. She was less tranquil, naughtier and at times mischievous. She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents. Although the child had a good relationship with the father, she also showed hostility towards him which appeared to have been induced by the mother. If such psychological pressure persisted there existed the risk of Parental Alienation Syndrome.",
"98. Upon request, on 6 March 2009 the Commissario della Legge granted an extension to the relevant expert.",
"99. On 17 March 2009 the Commissario della Legge postponed a decision in respect of maintenance and ordered both parties to submit the second applicant ’ s passport, reiterating the prohibition on the child ’ s expatriation.",
"100. On 20 March 2009 the parties ’ experts submitted their report.",
"101. On 30 March 2009 the CTU finalised the report which had been commissioned on 15 July 2008 (see above). The report was a result of various meetings with the parties which had been recorded. The report concluded that there were no particular problems with the parent ’ s diverse personalities or with their relationship with their child. However, it established that Mr X. was more aware of the second applicant ’ s need to have adequate time with both parents, and was thus more likely to allow regular contact with the child by the mother, always under strict supervision by children ’ s services. Moreover, the mother ’ s intention of persisting with criminal proceedings against the father did not strike a note in her favour. It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents.",
"102. On 16 April 2009 the first applicant made a request before the Commissario della legge for copies of the recordings of the meetings attached to the CTU ’ s report.",
"103. On 23 April 2009 the same request was made by Mr X., who further requested copies of all relevant communications mentioned in the report, between the parties, their experts, the lawyers and children ’ s services.",
"104. On the same day the court ordered those recordings and communications to be provided to the parties, subject to the payment of costs by those parties.",
"105. Following Mr X. ’ s request of 30 April 2009 to order a new report by children ’ s services, in view of the psychological pressure to which the second applicant was being subjected by her mother, the Commissario della legge ordered the said report on 4 May 2009.",
"106. On 14 May 2009 further submissions were made by the mother, together with a report regarding the second applicant drawn up by the first applicant ’ s CTP. It was reported that the second applicant ’ s situation was stress - related; because of her young age she needed and wanted the presence of her mother. She was therefore suffering as a result of the mother ’ s absence, and constant requests for the child to be removed from her mother could only worsen the child ’ s situation. It was in favour of requesting specialised medical advice for the child.",
"107. On 18 May 2009 children ’ s services submitted a report indicating that the child ’ s psychological condition was deteriorating, that she was refusing to take part in games representing the family, and that she had become more isolated at school. Moreover, the child had developed a tic and frequent belching, probably due to anxiety.",
"108. On the same day and on 25 May 2009 respectively, the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment, as well as a neuropsychiatric examination.",
"109. On 27 May 2009 and 1 June 2009 Mr X. ’ s expert submitted his report.",
"110. On 5 June 2009 Mr X. objected to the first applicant ’ s requests. On the same day the Commissario della legge held, noting that Mr X. had suggested that another doctor (Mr C.) should conduct therapy with his daughter, that she was being carefully monitored by reliable experts from children ’ s services, and that any psychological diagnosis should be included in the treatment already in place, which should be continued.",
"111. On 22 July 2009 the Commissario della legge held that the psychotherapy was to be conducted by Mr C. , who should also verify whether the child was experiencing any discomfort.",
"112. On 5 August 2009 the court acknowledged two experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports.",
"113. On 14 September 2009 Mr C. accepted his appointment.",
"114. Following further submissions, and the first applicant ’ s complaints about Mr X. ’ s absences, on 24 November 2009 the Commissario della legge held that, when one of the parents could not take care of the child, it was for the other parent to so do and not the grandparents, and that the parents should collaborate when taking decisions regarding the minor.",
"115. On 2 February 2010 further reports were requested from the CTU.",
"116. Proceedings were still under way on the date of communication of the present application to the respondent Government.",
"B. Parallel proceedings",
"1. Proceedings instituted by the first applicant before the Bologna Juvenile Tribunal",
"117. By an application of 1 August 2007, the first applicant requested the Juvenile Tribunal of Bologna to intervene in the custody proceedings in favour of sole custody of the mother.",
"118. On 10 August 2007 the Public Prosecutor ’ s Office advised against this action for lack of Italian jurisdiction. On 23 October 2007 the first applicant made a request for urgent measures.",
"119. By a decree of 29 October 2007, the Juvenile Tribunal suspended proceedings in view of the fact that proceedings were pending in San Marino.",
"2. Proceedings instituted by the father before the Bologna Juvenile Tribunal",
"120. It appears that in 2008 Mr X. requested the Juvenile Tribunal of Bologna to return the child to San Marino. The first applicant was not informed of these proceedings. On 14 March 2008 the Public Prosecutor ’ s Office advised the court to refuse the request.",
"121. By a decree of 6 June 2008, the Juvenile Tribunal refused the request to return the child to San Marino. It noted that, as Italy had not yet accepted San Marino ’ s adhesion to the Hague Convention that Convention could not apply to the present case.",
"3. Criminal Proceedings against the first applicant in San Marino",
"122. Mr X. pressed charges against the first applicant on 4 September 2007, for failure to make the child available for one of his visits. On 4 December 2007 it was considered that these proceedings should be archived since relevant certificates proving the child ’ s illness at the time were submitted. The following day the case was archived by the Procuratore del Fisco (Attorney General). On 6 December 2007 the case was archived by the Commissario della Legge.",
"4. Criminal proceedings against Mr X. in San Marino",
"123. On 19 February 2008 the first applicant pressed charges against Mr X., with the Gendarmeria di San Marino, for international kidnapping.",
"124. Following the first applicant ’ s testimony, on 29 May 2009 the Commissario della Legge held that there had not been the prerequisites for the accusation. Mr X. had not had the intention to kidnap the child. He could not be held responsible since he had only planned to take the child on a short holiday, which in some way or other could be said to have been agreed to by children ’ s services, in order to allow the father to recover the unilaterally impeded and therefore lost visits. The case was therefore sent for an opinion to the Procuratore del Fisco. With the latter ’ s agreement, on 10 June 2009 the Commissario della Legge ordered that the case be archived.",
"5. Criminal proceedings against Mr X. in Italy",
"125. On 10 May 2008 the first applicant pressed charges against Mr X. with the Rimini police headquarters for international kidnapping.",
"126. On 23 February 2009 the Commissario della Legge ordered the judicial police of San Marino to carry out the identification of Mr X.",
"127. By a summons of 19 July 2010 Mr X was informed that he was being indicted and that the trial would start on 24 October 2011.",
"6. Consular requests",
"128. Consular visits with the parties concerned were only successful in respect of the first applicant. Meanwhile diplomatic attempts by the Italian Government, seeking an adequate solution from the San Marino authorities, remained unfruitful.",
"C. The continuation of proceedings following communication of the application to the respondent Government.",
"129. Following notification of the pending application before the Court by the Government Agent, on 26 July 2010, by reason of the inferences as to the impartiality of the relevant judge in the application pending before the Court, the Commissario della Legge hearing the ordinary custody and contact proceedings withdrew.",
"130. Proceedings continued under a new judge appointed by the former judge. According to the applicants, this choice had been arbitrary, as the new judge, who did not usually practise in the civil sphere, was a professor at the same university as the former judge and X ’ s legal counsel. This choice highlighted the former judge ’ s partiality.",
"131. Submissions were made regarding several issues, inter alia the child ’ s presence at Mr X. ’ s wedding, schooling, exclusive custody, and urgent measures related to the child ’ s medical needs. Where necessary, decrees were delivered upon the information submitted by the parties, the experts and children ’ s services.",
"132. Subsequently, on 13 September 2010 an updated CTU was submitted. The CTU acknowledged that his initial conclusions (of July 2008) had to be altered, having regard to the application lodged before the Court by the first applicant; as such the action reflected her contradictory behaviour. After hearing the parties he concluded that the second applicant should be placed with the father for the coming school year, that schooling should be in San Marino and that the mother should maintain her previously established visiting rights. The same was confirmed by a children ’ s services report.",
"133. On 20 September 20 10, following an adjournment because Mr X. was still on honeymoon, the first applicant made further submissions, focusing on the protection of her rights under Article 8 of the Convention. She submitted a favourable report by her CTP and requested that i) the child be placed with her, ii) the child be put into the Rimini elementary school, iii) a neuropsychiatric report be drawn up by the Rimini hospital iv) monitoring of visits be withdrawn, or in the alternative that San Marino children ’ s services be replaced by neuropsychiatric services or that the psychologist be replaced.",
"134. Having heard all the relevant parties and submissions the Commissario della Legge delivered its decision on 21 September 2010. Noting the high level of conflict persisting between the parties and their representatives, it considered that the decision must be temporary and subject to further change. It ordered joint custody, that the child be schooled in San Marino, that she be placed with the father during the week and with the mother at weekends, that Christmas and Easter festivities would be spent with the mother with the exception of Christmas Eve, Epiphany and the weekend after, which would be spent with the father, and that the parents continue to follow psychotherapy for another twelve months. It further ordered children ’ s services to continue monitoring the child ’ s progress, the expert to submit information about the child-parent relationship, particularly in view of the father ’ s remarriage, and any relevant medical needs.",
"135. Feeling aggrieved by the comments in the above - mentioned decision in relation to the parties ’ representatives, legal counsel for the first applicant gave up their mandate. Proceedings are still pending and the first applicant has no longer been represented during these proceedings.",
"136. Meanwhile, the appeal proceedings against the decision of 19 February 2008 continued and were decided on 7 March 201 1.",
"137. The Giudice per le Appellazioni Civili rejected the first applicant ’ s appeal. The court considered that Article 6 of the Convention had detailed provisions regarding criminal proceedings, but nothing in relation to civil proceedings. Thus, it was a matter subject solely to ordinary law. That being stated, he considered that in the instant case there had not been a breach of the right to defence or to the right to cross- examination ( contraddittorio ). Indeed, the first applicant had originally been represented at the opening of the hearing, thus, the prerequisites existed to hear the case and to cross- examine. It was only following the rejection of the request for an adjournment that the first applicant ’ s co- lawyer forfeited her mandate. Moreover, when the latter forfeited her mandate she was not forfeiting her colleague ’ s mandate, who therefore remained counsel to the applicant. The court further noted that there existed no law recognising a right to defer a case. The decision in relation to the existence of a legitimate impairment was subject to the judge ’ s discretion after hearing the relevant arguments. In the present case, the results of the investigation and rogatory enquiry with the Rimini Tribunal could not lead to the existence either of a legitimate impediment or of an ex post one. The Commissario della Legge had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter. Indeed, it shared the view that, there not being any legal and binding procedural requirements in this respect, in the urgent circumstances of the case the decision could have been taken even in the absence of one of the parties ( audi alteram partem ). Moreover, the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself. Lastly, as to the impartiality complaint, the first applicant had not challenged or requested the withdrawal of the Commissario della Legge at the relevant time."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. The 1980 Hague Convention on the Civil Aspects of International Child Abduction “the Hague Convention”",
"138. The preamble of the Convention includes the following statement as to its purpose:",
"“ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...”",
"139. The object of such a return is that, following the restoration of the status quo ante, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident.",
"140. Article 3 of the Convention reads as follows:",
"“The removal or the retention of a child is to be considered wrongful where",
"(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and",
"(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...”",
"B. Law of 17 June 2 008 amending criminal procedure",
"141. Section 7 (1) of the law of 17 June 2008 amending criminal procedure “the Criminal Procedure Act”) provided that an order that the case be archived must promptly be notified to the Attorney General ( procuratore del fisco ), the person charged, the victim, and the person who had pressed the charges. It must further be communicated to the executive magistrate ( “ magistrato dirigente ” ). An appeal can be lodged against such an order, by the person charged or the victim, within thirty days of its notification. The appeal shall be lodged with the Giudice delle Appellazioni Civili, who must be a different judge than the one who originally decided the merits of the cause. He or she should deliver a reasoned decision within thirty days. An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge.",
"142. Its section 10 regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force. The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within the following nine months of its entry into force.",
"THE LAW",
"I. PRELIMINARY OBJECTIONS",
"The Government ’ s preliminary objection regarding the first applicant ’ s standing also to act on her child ’ s behalf",
"1. The parties submissions",
"143. The Government submitted that the second applicant did not have standing to act in the proceedings given her young age. In order to act on behalf of her child, the first applicant should have obtained the father ’ s authorisation and/or that of the judge ( giudice tutelare ), but she had not done so. Awarding her that status could create a conflict situation in that even her father could lodge an application before the Court on her behalf. Moreover, certain aspects of her complaints, such as those relating to procedural aspects of the proceedings, could clearly have no effect on the second applicant, as she was not a party to the domestic proceedings.",
"144. Referring to the court ’ s case - law, the applicants submitted that the second applicant had locus standi. This was even clearer, considering that the first applicant was not only the biological mother, but also had joint custody of the child and enjoyed parental rights.",
"2. The third - party Government",
"145. The Italian Government submitted that the second applicant had full locus standi in the proceedings, on the basis of the Court ’ s case-law regarding representation by parents, particularly when the representing parent is in conflict with the authorities and is contesting their decisions in the light of the Convention provisions.",
"3. The Court ’ s assessment",
"146. The Court points out that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and who criticises their decisions and conduct as not consistent with the rights guaranteed by the Convention. In the event of a conflict over a minor ’ s interests between a natural parent and a person appointed by the authorities to act as the child ’ s guardian, there is a danger that some of those interests will never be brought to the Court ’ s attention and that the minor will be deprived of effective protection of his or her rights under the Convention. Consequently, even where a mother has been deprived of parental rights - and indeed that is one of the causes of the dispute which she has referred to the Court - her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the child ’ s behalf, too, in order to protect his or her interests. Moreover, the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138-39, ECHR 2000 ‑ VIII ).",
"147. The Court accordingly concludes that the first applicant, the natural mother who still has parental rights, the exercise/limitations of which she is disputing before the Court, has standing to act on behalf of her child, and therefore the Government ’ s preliminary objection must be dismissed.",
"II. ALLEGED VIOLATION OF ARTICLES 8 AND 6 OF THE CONVENTION",
"148. The applicants complained under Article 8 about the custody proceedings, in particular about the order of 19 February 2008, and in general about the restrictions imposed on the applicants ’ visits. Under Article 6 they complained that the hearing leading to the latter decision had been unfair, and about the length of the entire proceedings.",
"The relevant Articles, in so far as relevant, read as follows:",
"Article 8",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 6",
"“In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.”",
"149. The Government contested that argument.",
"150. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I ). While Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, ECHR 2010 ‑ ... (extracts) ).",
"151. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8, and may accordingly be examined as part of the latter complaint.",
"A. Admissibility",
"152. The Government originally objected that the complaint against the decision of 19 February 2008 was inadmissible for non-exhaustion of domestic remedies since the appeal against that decision was still pending. However, pending these proceedings, the Government informed the Court that the proceedings had ended.",
"153. In this light the Court considers that the objection has been withdrawn, or in any event that it is to be dismissed. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ and third parties ’ submissions",
"(a) The applicants ’ submissions",
"154. The applicants complained that they had suffered a breach of their rights under Articles 8 and 6 and of the Convention, in particular in view of the decree of 19 February 2008, where the first applicant had not been duly represented and in which the judge had based his decision solely on statements by children ’ s services and the father, notwithstanding the latter ’ s abduction of the minor. As a result, the restrictions imposed on the first applicant, together with the six-month period of isolation in San Marino, were contrary to Article 8 and the entire proceedings were unreasonably lengthy, more than four years, and that no final decision had yet been taken, contrary to Article 6.",
"155. In the applicants ’ view, the judicial authorities and children ’ s services were biased, as it appeared from, for example, social services ’ foregone conclusion that the second applicant would have resided in San Marino (paragraph 19 above), the decision of 18 December 2006, in favour of Mr X., containing an erroneous interpretation of a previously crystal - clear order (paragraph 15 above) and the decision of 19 February 2008 which had been arbitrary and discriminatory. They considered it inconceivable that an abduction planned with children ’ s services would have been endorsed by the judge. Similarly, the restrictions placed on the mother on the basis of her alleged intention of removing the child were unfounded, as the first applicant had shown reasons, by means of the relevant certification, why the child could not attend certain visits with Mr X. As a result of the impugned decision which found for joint custody, the first applicant could only see her daughter for a few hours (up to 11 August 2008 ), having every time to make a trip to San Marino from Italy, and unlike the father she was not able to take the child on holiday for a few days.",
"156. The applicants explained that during the domestic proceedings the first applicant was represented by two lawyers, only one of whom was familiar with the meeting with children ’ s services and the party ’ s experts, while the other representative had withdrawn. They submitted that, bearing in mind the issue of the child ’ s abduction and other evidence which came to light only after the date of the hearing had been fixed, of which the judge was made aware, it was crucial to have her lawyer present at that hearing. In the absence of that lawyer, the judge should at least have appointed a lawyer to represent her. Thus, the decision in question had been given in breach of the adversarial principle.",
"157. As to children ’ s services the applicants submitted that the person responsible for their case file only had a degree in pedagogy and not in psychology, thus could not sign in that capacity, and could not properly assess the child ’ s medical condition. Moreover, children ’ s services had not acted in such a way as to foster joint parenting, and had repeatedly refused the first applicant ’ s expert access to relevant documents and video recordings of meetings with the child. It followed that the domestic court did not exercise any supervision of the work of children ’ s services in that respect. Another supposedly independent expert, the psychologist in charge of monitoring the meetings held at X. ’ s house, was the psychologist of a committee with which relatives of X. were involved. They further submitted that their expert, a psychological consultant for the Council of the Order of Psychologists of San Marino (“the Order”), had not been in accordance with the reports drawn up by children ’ s services, which, in her view, had not been supported by scientific evidence. In this respect the expert complained to the Order, in particular about the procedures used by children ’ s services, the lack of training, their omissions and lack of co-operation.",
"158. Lastly, the applicants submitted that the authorities ’ actions following the lodging of the application with the European Court of Human Rights had been inappropriate. The applicants contended that following the introduction of their case before the Court, the judge in charge of the domestic proceedings had refused to continue to hear the case. She had however appointed another judge, an action which in the applicants ’ view was not consonant with her refusal to hear the case. Indeed, the unusual choice of the judge who would have been her successor in hearing the case raised doubts as to his impartiality. They noted that once they became aware of the application to the court, the CTU ’ s reports had been altered in their disfavour, and the content of the subsequent decrees had tastelessly made reference to the same.",
"(b) The Government ’ s submissions",
"159. The Government submitted that the impugned decision of 1 9 February 2008, granting joint custody and holding that the second applicant should live with the father, was based on the fact that, as appeared from the expert evidence submitted by children ’ s services, there was a high level of conflict between the parents and the mother was reluctant to allow contact with the father. The Government pointed out that in June 2007 the mother had taken the child to Italy, notwithstanding the decision of 17 April 2007, which held that the child should remain in San Marino ( see paragraph 22 above ), and from 2007 the first applicant had repeatedly refused to allow contact with the father, contrary to the decree of 25 June 2007 (paragraph 29 above). Thus, the impugned decision had been taken in the best interest of the child, having considered that the father was the parent who would have allowed contact with the other parent. The court ’ s conclusion had been based on the objective findings by children ’ s services following their monitoring of the parent-child relationships, which repeatedly found that the mother was hindering the child ’ s contact with the father, to the extent that in 2009 they feared the second applicant was suffering from Parental Alienation Syndrome (paragraph 9 7 above ).",
"160. As to the child services, the Government submitted that according to law their function included providing residential care services ( assistenza domiciliare ) in all cases where there existed difficulties in parent-child relationships. They were judge auxiliaries /assistants, representing the institutional instrument allowing the court to acquire all the necessary elements to correctly evaluate any decision related to custody and adoption. Children ’ s services, as public employees, were subject to Public Employment Law and to supervision by the Social Security Institute. Failure to abide by the duties imposed could lead to disciplinary sanctions as imposed by law through the Disciplinary Board. Children ’ s services personnel were qualified individuals, with degrees in psychology and/or pedagogy with a two year specialisation course in Psychology or with at least five years ’ service in the health sector, who have been successful in a public competition and whose profession therefore guaranteed their independence and impartiality. Moreover, such qualities had often been confirmed by L. C. , a court expert, whose authority in child therapy was indisputable. In reply to the third- party intervener, the Government considered that the dual role carried out by children ’ s services was functional, enabling parents to reach agreements in the best interest of the child. Thus, the claims in that connection were completely unfounded and unsubstantiated.",
"161. The Government highlighted that the applicant had exercised all her contact rights punctually as ordered by the impugned decree, within the agreed arrangements, irrespective of her reluctance to allow contact with the father. Any cautionary measures adopted, such as the presence of the psychologist or children ’ s services, had been deemed necessary to avoid any risk of child removal, bearing in mind the first applicant ’ s prior behaviour. Such measures were in accordance with the Hague Convention on the Civil Aspects of International Child Abduction.",
"162. The Government further submitted that the proceedings leading to the decree had been duly notified and conducted in the presence of both parties, who were allowed to make all the relevant submissions, and the fact that one of the applicant ’ s lawyers was not able to attend was irrelevant. They further noted that one of her lawyers, who had previously relinquished his mandate, had been reinstated. The lack of organisation of the first applicant ’ s defence could not weigh against the judge ’ s decision to proceed with urgency, as had been requested by the first applicant.",
"163. As to the alleged impartiality of the judge, the Government submitted that notification of the application to the domestic judge and the attachment of the documents to the domestic case file served the purposes of a procedure for the abstention of the judge from the case. The judge appointed subsequently was an administrative judge, who in terms of law could also be assigned to civil cases, as also confirmed by the decision of the executive magistrate ( “ magistrato dirigente ” ) of 1 December 2010. His impartiality was crystal clear, as could be seen from the fact that he even increased the time period during which the minor was to be placed with the mother. Moreover, according to the Government, no argument could be made in relation to the father ’ s alleged kidnapping, since this issue did not appear from the children ’ s services reports or any judicial decisions. Moreover, they insisted that the father had not abducted the child but was simply on holiday with her.",
"(c) The third - party Government ’ s submissions",
"164. The Italian Government firstly noted that Mr X. ’ s behaviour amounted to kidnapping, in so far as his action to take away the child and not return her to her mother according to stipulated conditions had not been authorised by a judge. They further submitted that the allegation that the first applicant had attempted to kidnap the child was not substantiated, as it was clear from the decree of 25 June 2007 (see paragraph 28 above) that the applicants were authorised to reside in Rimini, Italy. In consequence, it could not be acceptable that the first applicant ’ s contact rights were hindered by the application of the Hague Convention conditions, which did not apply to the first applicant ’ s situation. Moreover, when Mr X. started requesting that these conditions apply (February 2008) the Hague Convention was not yet applicable to issues between the two states, as it had entered into force only on 1 August 2008.",
"165. The Italian Government considered it deplorable that the hearing leading to the impugned decision had taken place without legal representation for the first applicant, and that the refusal of the judge to grant an adjournment for this purpose raised issues as to the fairness of the proceedings under Article 6 § 1. They reiterated that the domestic jurisdictions had to make a detailed examination of the family ’ s situation and take into consideration other elements, such as the emotional, psychological, material and medical needs of the child, as well as undertaking an overall assessment of the balance between competing interests, bearing in mind the best interests of the child. In their view a violation of Article 6 § 1 persisted, in that after nearly three years the appeal proceedings against the impugned decision had not yet been terminated. This delay was not understandable in view of the delicate situation, the best interest of the child and her rights under Article 8. Moreover, the Italian Government were of the view that the deterioration in the second applicant ’ s health from 2009 onwards could have been due to incompetence on the part of children ’ s services, as evidenced by the Associazione Pro Bimbi ’ s submissions (see below). They therefore requested the Court to examine the role played by children ’ s services in so far as they appeared to have put aside the interests of the child in favour of those of the father.",
"166. Lastly, they considered that the first applicant must have suffered distress at seeing her child being moved from one place of residence to another. However, her good faith towards Mr X. had been evident even by her recent agreement to allow the child to attend Mr X. ’ s wedding. The Italian Government considered that a joint custody regime should have been accompanied by a decision to have the child reside with the mother, which according to child psychology studies was a fundamental period in children of such a young age. Moreover, bearing in mind that it appeared that the second applicant was often left in the care of her paternal grandparents, the Government had trouble understanding the choice of the San Marino authorities to order residence with the father.",
"167. In the light of the circumstances of the case the Italian Government was of the view that the San Marino Government had violated the applicant ’ s rights under Article 8 in conjunction with Article 6.",
"(d) The third - party intervener ’ s submissions",
"168. The Associazione Pro Bimbi provides, through its activities, support for parenting and the well - being of minors. It receives support from, inter alia, the Ministries of Public Instruction, Health, Justice, and Foreign Affairs. They submitted that in 2009 they had received a number of requests from separated parents in respect of their loss of parental rights and/or joint custody. Some of these cases had turned out to be extremely alarming from the point of view of the right to joint parenting and regular contact rights. These complaints mainly concerned children ’ s services. During the association ’ s discussions on child custody, strong criticisms of children ’ s services were voiced by parents, in particular in respect of their lack of qualifications and ineffective support for parents. Many spoke about their distressing experiences in trying to see their children, particularly in cases of parents with dual nationality, who publicly complained that they had faced discriminatory treatment from the services. The association therefore invited children ’ s services and the Council of the Order of Psychologists of San Marino (“the Council”) to attend subsequent sessions. Unlike the Council, children ’ s services did not send any representatives. The Council ’ s representative, in reply to questions set, confirmed that in San Marino it sufficed to have a degree in pedagogy without a further professional qualification to be employed by children ’ s services. Moreover, they were not subject to monitoring by the Council and were not bound by a code of conduct.",
"169. The association further cited a letter from children ’ s services in which they acknowledged that, with a total of only seven staff members and a lack of resources and funding, they were not in a position to carry out effectively their role of support for judges and protection of minors of 150 families, of whom fifty were cases of high - conflict separations which were often hard to mediate. The association also considered that it was anomalous for the staff of children ’ s services to assume conflicting roles, namely the function of public officials reporting to judges and also as mediators providing support for families and children. Concerned about the above matter, the association had sent letters to the head of the Institute for Social Security, who was in charge of children ’ s services. The latter responded that a commission of enquiry would be set up and investigations carried out. Up to the date of submissions no response had been received.",
"2. The Court ’ s assessment",
"(a) General principles",
"170. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see Keegan v. Ireland, 26 May 1994, § 50, Series A no. 290 ). Family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty. Thus, the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8 (see Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144 ).",
"171. Domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life (see, for example, Hoffmann v. Austria, judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29, and Palau-Martinez v. France, no. 64927/01, § 30, ECHR 2003-XII).",
"172. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”. Necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see W. v. the United Kingdom, 8 July 1987, § 60, Series A no. 121. )",
"173. Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “ respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005 ). The Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation on the national authorities to take such measures. This also applies to cases where contact and residence disputes concerning children arise between parents (see Kosmopoulou v. Greece, no. 60457/00, § 44, 5 February 2004 ).",
"174. In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State ’ s margin of appreciation (see W. v. the United Kingdom, cited above, § 59, and Keegan, cited above, § 49 ).",
"175. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody (see, inter alia, C. v. Finland, no. 18249/02, § 53, 9 May 2006 and Wildgruber v. Germany, (dec.) nos. 42402/05 and 42423/05, 29 January 2008 ). However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001 ‑ V (extracts).",
"176. Where the measures in issue concern parental disputes over their children, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact and residence disputes, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance ( see Zawadka, cited above, § 54, and Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A). Moreover, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ( see Zawadka, cited above, § 67) which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002 ).",
"177. Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority ’ s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on relevant considerations and is not one-sided, and hence neither is, nor appears to be, arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8 ( see W. v. the United Kingdom, cited above, § 62 and 64 in fine ). In conducting its review in the context of Article 8 the Court may also have regard to the length of the local authority ’ s decision-making process and of any related judicial proceedings. An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time ( ibid. , § 65; see also H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120 ).",
"178. It is of paramount importance for parents always to be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which is at the disposal of the domestic courts ( see Sahin v. Germany [GC], no. 30943/96, § 71, 8 July 2003, and Kosmopoulou, cited above, § 49 ). It is, moreover, for the authorities to show that there are compelling reasons for refusing a data subject ’ s request to be provided with a copy of their personal data files ( see Tsourlakis v. Greece, no. 50796/07, § 44, 15 October 2009).",
"(b) Application of the above principles to the present case",
"179. In the present case the Court notes that in December 2006 the competent national courts granted sole custody of the child to the first applicant. Six months later, in June 2007 the domestic court ordered joint custody and that the child should live and attend school for the following school year in Rimini, Italy, where she had established herself with the mother. However, by an order of 21 September 2007 the domestic courts decided that the second applicant should reside in San Marino, as Mr X. had the right to easy and unsupervised contact with his child. On 12 November 2007 joint custody was upheld as being in the best interest of the child. By a decision of 19 February 2008, the court, again upheld joint custody and ordered the child to be returned to San Marino to live with her father and to attend school there. This decision was confirmed on appeal three years later. In the meantime a number of orders had been issued on the matter, upholding joint custody and residence with the father, in San Marino.",
"180. The Court observes that from 2007 onwards, the first applicant ’ s rights had diminished from full custody, to a right to supervised contact, to be held in San Marino, of nearly two hours per day. Subsequently, contact hours changed to three hours on alternate days, including an overnight stay, and remained subject to the same conditions up to August 2008. Following that date contact hours increased to two to six hours per day, overnight stays, and alternate weekends with the parents, up to entire weeks over the Christmas holiday period. Most of these visits were nevertheless supervised either by the father or his legal representatives, children ’ s services or CTU experts, who videoed the meetings.",
"181. It has not been contested by the parties that the domestic decisions related to the applicants ’ custody and contact rights constituted interference with the applicants ’ family life which was in accordance with the law, and the Court considers that the measures pursued the legitimate aims of the protection of health or morals and/or the protection of the rights and freedoms of others, namely the child and her parents. It remains to be ascertained whether the measures were necessary in a democratic society.",
"182. The Court notes that in this sphere its review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced by the domestic courts were relevant and sufficient (see Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130 ).",
"183. In reviewing whether the domestic courts based their decisions on relevant grounds, the Court observes that the domestic courts persistently reiterated the best interests of the child. They based their decisions on a number of further considerations, such as the relationship between the parents, the inherent problems of joint custody in such cases, particularly were it transpired that one parent was, for the most part, hostile towards the other and hindered contact rights, the attitude and availability of the parents and the specific environments involved. In each of their decisions they relied on detailed and complete reports from the children ’ s services (see, for example, paragraphs 22, 28, 38, 50 and 77 ) which were drawn up following constant and specific requests by the domestic courts. These reports were a result of the constant monitoring performed by the service. From 2007 onwards the courts further had the benefits of reports by ex-parte counsellors and experts, and from 2008 onwards also reports by the CTU. Moreover, the parties had regularly made written and oral submissions before the court and were allowed to air all their requests and concerns, which the courts undoubtedly took into consideration.",
"184. In this light, the Court finds it reasonable, that the courts considered it necessary - for the protection of the child ’ s interests - not to maintain in place a sole custody order in favour of the first applicant but to award the parents ’ joint custody, neither does it appear illogical to have opted for residence with the father. It is also noted that the domestic courts did not exclude a change in regime if circumstances so required. Furthermore, the domestic courts took due care to recommend education programmes for the family and to foster the parents ’ reconciliation and co-operation in the best interest of their daughter.",
"185. As to contact rights, the Court has already observed the details of the regime applied (see paragraph 180 above ). It reiterates that the national authorities having the benefit of direct contact with all the persons concerned are better placed than the international judge to assess such needs. The Court considers that the measures adopted do not appear manifestly arbitrary or unfair. In consequence, it is not for the Court to enter into a detailed assessment of the most appropriate contact arrangements. It suffices for the Court to note that these rights were not denied or suppressed at any moment, the applicants having maintained constant and regular contact with each other, and the first applicant having retained joint custody over the second applicant. While supervision and often limitation as to the venue of contact meetings (the father ’ s residence), must have restricted the purpose of visits between mother and child, limiting to some extent their contact and the opportunity to develop their relationship - a matter which was in both of their interests and particularly the child ’ s, whose interest is paramount - the Court considers that monitoring by the child services was necessary to allow the domestic courts to make informed decisions as to custody and contact rights. Moreover, such monitoring also served to ensure the child ’ s well being. The Court is ready to accept that while there was no threat of violence or serious health issues (see, a contrario, Gluhaković v. Croatia, no. 21188/09, § 63, 12 April 2011 ) there could have been a risk of psychological abuse as evidenced by the suggestions that the child might develop Parent Alienation Syndrome, thus justifying the father ’ s presence at meetings. This having been said, the Court refutes the Government ’ s argument that such limitations were necessary as a precautionary measure against a possible abduction by the first applicant. The Court notes that when the first applicant moved to San Marino, she had informed the judge (see paragraph 26), similarly, when requested to submit the second applicant ’ s passport she did so (see paragraph 56). While she appeared to be more hesitant to submit the second passport, the Court notes that in the meantime it was Mr X. who had requested a second passport and who was allowed to travel with the child (see paragraphs 70 and 92). Moreover, it had been repeatedly stated by the courts that travel was banned unless authorised by it (see paragraphs 51, 70 and 99), a measure which in principle deterred unilateral decisions to take the child away. Furthermore, the Court notes that there is nothing in the case file which gives objective grounds for any fear of the applicants ’ absconding, particularly since the first applicant ’ s family lived in Rimini, not far from San Marino, and indeed any mere suspicions or fears which Mr X. might have had had neither been substantiated nor confirmed by the courts. Lastly, the Court notes that the presence of the parties ’ lawyers had not been court ordered, and indeed it was the children ’ s services that requested the court to prohibit such a practice (see paragraph 69 above). Thus, any discomfort caused in this respect could have easily been avoided by the parties ’ good will.",
"186. As to the applicants ’ contention that the children ’ s services were biased and unqualified, the Court considers that quite apart from the submissions made by the third-party intervener association, the matter remains unsubstantiated, and in any event the Court has not discerned any proof of the lack of effectiveness of such a service, particularly where, as in the present case, the proposals made by the service do not appear to be manifestly arbitrary or discriminatory. While it is true that the domestic courts have a duty to exercise constant vigilance, particularly as regards action taken by social services, to ensure the latter ’ s conduct does not defeat the authorities ’ decisions (see Scozzari and Giunta v. Italy [GC], cited above, § 179), the Court notes that in the present case, the applicants had ample possibilities to criticise and contest the children ’ s services qualifications, actions and findings in the contentious proceedings, as in fact the first applicant had done in relation to the children ’ s services failure to facilitate her contact rights (see paragraphs 46, 48 and 56 above). Moreover, when at issue, the domestic courts considered that the children ’ s services were made up of reliable experts (see paragraph 110 above).",
"187. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. In assessing whether the domestic courts ’ reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the first applicant with the requisite protection of her interest.",
"188. The Court notes that, throughout the proceedings, the applicant, represented by counsel, had the opportunity to present her arguments in writing and orally. Indeed she had presented ample submissions to the domestic courts as evidenced by the voluminous documentation submitted to the Court. As to the hearing of 19 February 2008 on the merits of her and Mr X. ’ s requests, the Court considers that given the fact that the first applicant ’ s representative had been duly notified of the date of the hearing (see paragraph 43 above), that at the actual hearing she had originally been represented by co-counsel, and that she had had the opportunity to submit written pleadings, it cannot be said that her involvement had not been effective at that stage. This is more so in view of the fact that in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. In this light, and bearing in mind that the decision of 19 February 2008 only confirmed the retention of a joint custody regime which had previously been decided (see paragraphs 28 and 38 above ) the Court finds reasonable the refusal of the domestic court to adjourn the hearing.",
"189. As to the applicants ’ complaint that the proceedings were unreasonably lengthy, while the Court finds reprehensible that the appeal against this decision took three years to be decided (6 March 2008 to 7 March 2011), it notes that various orders were delivered and arrangements made in the meantime, and that the first applicant ’ s access rights have been regularly maintained, the calendar of visits being changed regularly by agreement of the parties and the assistance of children ’ s services. As to the overall length of the proceedings the Court notes that the first applicant intervened in the custody and contact proceedings in December 2006 and the proceedings are to date still pending. However, it is evident from the facts of the case that there have not been any significant lapses of inactivity, or adjournments for reasons related to internal organisation (see, a contrario Veljkov v. Serbia, no. 23087/07, § 88, 19 April 2011 and Wildgruber v. Germany, nos. 42402/05 and 42423/05, § 61, 21 January 2010 ). Indeed it also transpires that the parties ’ requests for urgent hearings had been immediately followed up, with the domestic courts calling on extraordinary hearings of their own motion when necessary (see, for example, paragraph 43 above). Thus, although parallel proceedings and the fact that the courts had to decide a number of ancillary matters simultaneously must have detracted from the required speediness of custody proceedings, the Court considers that overall the domestic courts appear to have dealt with the proceedings with the requisite diligence.",
"190. In so far as the applicant argued that she had been denied access to the proper documentation, namely that by a decision of 17 July 2008, the first applicant was denied access to the video recordings of her visits with the second applicant, the Court considers that the information contained in those recordings was pertinent to the applicants ’ relationship and could have allowed the first applicant to become aware of any apparent negative points which could have influenced the judge against her and if necessary take them into account, in future, with a view to improving the relationship with her child. The only reason given by the domestic court for such a refusal was that the applicant had no right to such materials, children ’ s services being the judge ’ s auxiliary (see paragraph 77 above). The Court is not persuaded by this reasoning and no other compelling reasons supporting their refusal to provide the video recordings have been put forward. However, it notes that nine months later the parties ’ requests for CTU recordings and all relevant documentation had been granted (see paragraph 10 4 above), thus, the first applicant could make use of such relevant information for the purposes of the proceedings which were still ongoing. Thus, the initial refusal cannot suffice to conclude that the State failed to comply with its positive obligations to ensure respect for the first applicant ’ s private and family life.",
"191. Lastly, as to the claims, raised in the applicants ’ observations, regarding the impartiality of the relevant judges, the Court observes, as did the appeal court, that no request for the withdrawal of such judges had been made at the relevant time.",
"192. Having regard to the state ’ s margin of appreciation in this sphere, and having considered the case as a whole, the Court is satisfied that the domestic courts ’ procedural approach provided adequate material on which to reach decisions based on relevant and sufficient reasons while adequately involving the first applicant in the decision-making process.",
"193. It follows that there has not been a violation of Article 8 of the Convention in respect of the applicants.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"194. The applicants complained that they did not have an effective domestic remedy in respect of the second applicant ’ s abduction as a result of the tribunal ’ s decision to archive the case against Mr X. They relied on Article 13 of the Convention, which reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"A. The parties ’ submissions",
"195. The applicant ’ s submitted that the law referred to by the Government which came into force on 1 September 2008, provided in its Article 10 of the transitional and final rules as follows –“the present law applies to all criminal proceedings for which notice of the crime reached the investigating judge in the period after the law came into force. The present law does not apply to cases pending on the date when it came into force if they are published and filed within the following nine months.” In the present case, the proceedings against Mr X. were filed on the last possible day, thus excluding any possibility of an appeal.",
"196. The Government submitted that the first applicant could have lodged an appeal before the Judge of Criminal Appeals ( Giudice delle Appelazioni Penali ), against the Commissario della Legge ’ s decision of 10 June 2009 to archive the case, which, if upheld, could order the reopening of the preliminary investigation and assign it to a different inquiring magistrate. Such an action was provided for by Article 135 of the Code of Criminal Procedure as amended in 2008 and which came into force on 1 September 2008. The latter provided the accused and the injured party with the possibility of lodging an appeal within thirty days of notification of the order that no further action would be taken. The Government further submitted that the transitional provisions mentioned by the applicants were not applicable to the case in question. However, even if this were so, the decision to archive the case was delivered several days after the expiration of the nine months from its entry into force.",
"197. The Italian Government supported the observations submitted by the San Marino Government.",
"B. The Court ’ s assessment",
"198. The Court notes that the parties disagreed as to the application of the relevant law and they have not submitted any information as to the functioning of the legal amendment in practice. Nor did the Government give an explanation as to why the transitional measures did not apply to the present case. However, the Government contended that even if they had the applicants would still have been in time to appeal.",
"199. Indeed, the Court observes that the transitional provisions clearly stated that the new law, providing for a right to appeal, would not apply to cases which were archived within nine months of its coming into force. It notes that the amendment to the law came into force on 1 September 2008 and the case was archived on 10 June 2009, thus more than nine months after the entry into force of the amendment. It therefore appears that in principle an appeal was available to the applicants. In the present circumstances and in the light of the submissions on the matter, the Court considers that since the applicants failed to even attempt an appeal, it would be speculative to examine whether such a remedy would have been effective.",
"200. It follows that this part of the complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION",
"201. The first applicant complained that from February to August 2008 the second applicant was not allowed to leave the State of San Marino, contrary to Article 2 of Protocol No. 4, which reads as follows:",
"“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.",
"2. Everyone shall be free to leave any country, including his own.",
"3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.",
"4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”",
"202. The Government contested that argument.",
"A. Admissibility",
"203. The Government submitted that the second applicant, as a minor, did not have an autonomous right to freedom of movement, and therefore could not be considered a victim.",
"204. The Court makes reference to its conclusion about the second applicant ’ s victim status, above. Moreover, it notes that the rights guaranteed by this provision apply to any person, and not solely to adults. In the present case, the first applicant and Mr X. had joint custody over the second applicant. In consequence, they were in principle both authorised and capable of enabling the second applicant ’ s travel, had it not been for any restrictions imposed by the national courts.",
"205. It follows that the Government ’ s objection in this respect must be dismissed.",
"206. The Court further notes that this complaint is linked to the one examined above under Article 8 and must therefore likewise be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"207. The applicants submitted that although the first applicant had joint custody the second applicant ’ s movements were restricted as a result of the limitations imposed on her by the court. Indeed from 13 February 2008 up to 11 August 2008 the second applicant was confined to the territory of San Marino, for no legitimate reason. It was clear that such a measure had been granted in order to prevent Italian courts from having the jurisdiction to decide on the case.",
"208. The Government submitted that the applicant ’ s restrictions arose from the court decisions ordering the child to be resident with the father in San Marino and the mother ’ s contact rights to be exercised in San Marino and such a decision could not constitute a violation of the said provision.",
"209. The Italian Government considered that the limitations imposed on the second applicant ’ s freedom of movement, namely prohibiting her from going to Italy, had the aim of distancing the second applicant from her mother and her maternal family. They stated that the reasons put forward by children ’ s services and the CTU had been contradictory and no specific reasons had been given for the decision to keep the second applicant with the father and not with the mother, particularly in view of her tender age and needs. In consequence, in their view, there had been a violation of the second applicant ’ s rights under Article 2 of Protocol No. 4.",
"2. The Court ’ s assessment",
"210. The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person the right to liberty of movement within a territory and the right to leave that territory, which implies a right to leave for any country of the person ’ s choice to which he or she may be admitted. Thus, freedom of movement prohibits any measure liable to infringe that right or to restrict the exercise thereof which is not “in accordance with the law” and does not satisfy the requirement of a measure which can be considered “necessary in a democratic society” in the pursuit of the legitimate aims referred to in the third and fourth paragraph of the above-mentioned Article (see Baumann v. France, no. 33592/96, § 61, ECHR 2001 ‑ V (extracts). As regards the proportionality of the interference, the Court has particular regard to the duration of the measure in question (see Nikiforenko v. Ukraine, no. 14613/03, § 56, 18 February 2010 ).",
"211. The Court reiterates that an obligation to ask the authorities permission to leave each time does not correspond to the sense of the concept “freedom of movement” (see Ivanov v. Ukraine, no. 15007/02, § 85, 7 December 2006 ). The Court considers that the series of domestic decisions banning travel, and dispossessing the second applicant of her passport, in the present case, restricted the second applicant ’ s right to liberty of movement in a manner amounting to an interference, within the meaning of Article 2 of Protocol No. 4 to the Convention (see Roldan Texeira v. Italy (dec.), no. 40655/98, 26 October 2000, and Baumann, cited above, § 62 ).",
"212. The parties did not dispute that the decisions banning travel from the territory of San Marino in the present case were compatible with domestic procedural law and had a basis in the national legal order.",
"213. As to the legitimate aim cited by the Government, the Court reiterates its earlier assessment that there were no objective grounds founding any fear of the second applicant being kidnapped by her mother. Nevertheless, bearing in mind that at the relevant time San Marino was not a party to the Hague Convention, the Court recognises that the domestic courts felt bound to issue directions which could provide alternative protection against any such eventuality. In these circumstances, the Court therefore is ready to accept that the measure pursued the maintenance of “ordre public” and the protection of the rights of others.",
"214. The Court observes that in the present case the second applicant was confined to the territory of San Marino from at least 22 February 2008 to 11 August 2008. Bearing in mind the short duration of the restriction, the Court considers that the measure at issue was proportionate to the aim pursued (see, mutatis mutandis, Roldan Texeira, (dec.), cited above).",
"215. Accordingly, there has not been a violation of Article 2 of Protocol No. 4 to the Convention.",
"V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"216. The applicants further complained that the circumstances created by the judicial authorities, the CTU and the children services amounted to inhuman and degrading treatment, particularly as a result of the period of isolation in San Marino. Indeed, as a result, the second applicant suffered psychological distress. Moreover, the first applicant had been pressured by these entities into withdrawing her complaints against Mr X., which were eventually archived. They cited Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"217. The Court reiterates that, to fall within the scope of Article 3, the treatment in question must attain a minimum level of severity. The assessment of that minimum level is, in the nature of things, relative, and depends on all the circumstances of the case, and in particular on the nature and context of the treatment, how long it lasted, the physical and mental effects and, in some cases, on the sex, age and state of health of the person concerned. On this basis, it is not sufficient for the treatment to include some unpleasant aspects (see Bove v. Italy, (dec.) no. 30595/02, 18 November 2004).",
"218. The Court considers that, while the proceedings and related events have surely been a source of stress and anxiety to the applicants in the light of the circumstances of the present case, it cannot be said that they have reached the threshold proscribed by Article 3.",
"219. It follows that this complaint is inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.",
"VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"220. Lastly, the applicants complained under Article 1 of Protocol No. 1, about the amount of maintenance awarded by the order of 18 May 2007, which erroneously considered that the first applicant did not need to pay rent.",
"221. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it can only deal with the matter if the relevant complaint is raised within a period of six months from the date on which the final decision was taken (see Debono v. Malta, (dec.) no. 34539/02, 3 May 2005). In the present case the final decision in relation to this complaint was delivered on 18 May 2007 and was therefore taken more than six months before the lodging of this application with the Court on 7 July 2008.",
"222. It follows that this complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4."
] |
79 | Kopf and Liberda v. Austria | 17 January 2012 | Between December 1997 and October 2001 the applicants, a married couple, were foster parents to a boy, born in 1995. After his biological mother regained custody of him, the applicants were denied access as well as visiting rights. They complained in particular that the Austrian courts had decided – after proceedings lasting three and a half years – that granting them visiting rights was no longer in the child’s best interests. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, while the Austrian courts, at the time of taking their decisions, had struck a fair balance between the competing interests of the child and his former foster parents, they had however not examined sufficiently rapidly the applicants’ request to be allowed to visit their former foster child. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants were born in 1953 and 1943 respectively and live in Vienna.",
"6. In 1997 the biological mother of F., then two years old and born out of wedlock, set her apartment on fire after having consumed drugs. The mother and her child were rescued and, on 19 December 1997, the Vienna Youth Welfare Office ( Amt für Jugend und Familie ) handed F. over to the applicants as foster parents.",
"7. The applicants subsequently tried to obtain custody of F. and wanted to adopt him. F. ’ s mother recovered and was at first allowed access to visit her son. She then tried to obtain custody of F., which led to arguments between her and the applicants. Since these disputes were to the detriment of F., he was given to a “crisis foster family” ( Krisenpflegefamilie ) on 25 October 2001 for approximately eight weeks. After that period F. was handed over to his biological mother, who obtained provisional custody of him following a decision of the Vienna Juvenile Court ( Jugendgerichtshof ) on 19 December 2001. This decision entered into force on 18 December 2002, when the Supreme Court rejected an appeal by the applicants ( Revisionsrekurs ).",
"8. In the meantime on 20 December 2001 the applicants requested the right to visit F. Thereupon the Juvenile Court asked the Vienna Youth Welfare Office for their observations on the applicants ’ request.",
"9. The Vienna Youth Welfare Office submitted observations on 31 December 2001, stating that because of the long-lasting relationship between F. and the applicants it would be inappropriate not to allow access to the foster parents.",
"10. On 31 January 2002 the Juvenile Court heard the biological mother, who opposed the granting of visiting rights to the applicants because F. was in the process of getting used to her again.",
"11. On 8 February 2002 the applicants requested the acceleration of the proceedings ( Fristsetzungantrag ) under Section 91 of the Austrian Court Act.",
"12. On 28 March 2002 the Vienna Juvenile Court Assistance Office ( Wiener Jugendgerichtshilfe ) submitted their observations to the Juvenile Court. In the following months both parties repeatedly filed written observations on that report. The applicants also requested that an expert for child psychology be appointed.",
"13. On 2 December 2002 the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology. The biological mother objected to this request.",
"14. On 4 December 2002 the Juvenile Court asked the applicants whether they were maintaining their request for the appointment of an expert, given that meanwhile a report by the doctor with whom F. had had therapy had been obtained. On 10 December 2002 the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed.",
"15. On 17 February 2003 the Juvenile Court designated Dr. Sp. as the expert. The biological mother filed objections against Dr. Sp.",
"16. In July 2003 the court file was transferred to the Vienna Regional Court for Civil Matters, which was dealing with an appeal lodged by the applicants in the custody proceedings concerning F. lodged on 23 May 2003. On an unspecified date the Vienna Regional Court transferred the file to the Wiener Neustadt Regional Court as it considered that that court was competent to decide on the appeal. The Wiener Neustadt Regional Court did so on 19 and 29 January 2004; the file was then forwarded to the Mödling District Court, which had meanwhile become competent to deal with custody and visiting - rights proceedings.",
"17. On 16 December 2003 Dr Sp asked the District Court for leave to be discharged from the duty to prepare an expert report. He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by F. ’ s mother.",
"18. The Mödling District Court held a hearing with the parties on 1 April 2004 in order to discuss how to proceed further with the case. The judge informed the applicants and the biological mother that he would ask the Youth Office of the Mödling District Administrative Authority ( Jugendamt der Bezirkshauptmannschaft ) for a final report on the issue of visiting rights.",
"19. P. , who was the officer in charge at the Youth Office of the Mödling District Administrative Authority, submitted the report on 29 July 2004. She recommended refusing visiting rights to the applicants, because the reestablishment of contact with F. after it had been interrupted for more than two years might harm the psychological stability of the child. On 17 August and 16 September 2004 the parties submitted their comments on that report.",
"20. On 3 August 2004 Dr. Z. of the Niederösterreich Child and Youth Psychological Consulting Office ( Kinder- und jugendpsychologischer Beratungsdienst ) also suggested that the applicants should not be granted access to F., explaining that F. was aware of the difficulties between his mother and the applicants and therefore, as a protective measure, had said that he did not want to see the applicants. Dr. Z. further stated that not seeing the applicants was not to the detriment of the child. The applicants submitted observations regarding these recommendations.",
"21. On 9 November 2004 the Mödling District Court rejected the applicants ’ request to visit F. and found that failure to provide for personal contact ( Unterbleiben des persönlichen Verkehrs ) between the applicants and F. did not endanger his well-being.",
"22. It found that under Article 148 (4) of the Civil Code a court, upon the request of a parent, the child, a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well-being. Third persons, in contrast to parents or grandparents, had no legal right to be granted contact rights and consequently no legal standing in related court proceedings. They could merely suggest to the court ( anregen ) that it examine the matter of its own motion, and a court could only grant contact rights if failure to do so would endanger the child ’ s well-being.",
"23. Taking the applicants ’ request as such a suggestion, visiting rights could not be granted. From all the material in the possession of the District Court it was evident that F. was vehemently opposed to meeting the applicants, while at the same time he had developed a close and positive relationship with his mother. The District Court acknowledged that the applicants had a genuine concern for F. ’ s well - being; however, in the present situation the interests of the applicants did not coincide with the child ’ s best interests. Given that F. had not been in contact with his foster parents for more than three years, the District Court would follow the conclusions in the reports of P., from the Youth Office of the Mödling District Administrative Authority, and Dr. Z., from the Niederösterreich Child and Youth Psychological Consulting Office. It was quite possible that immediately after F. had been placed with the “crisis foster family” in October 2001 the granting of visiting rights to the applicants might have been useful. However, this was no longer the case and it now served the best interests of the child, who was living with his biological mother, not to put him back in a situation of divided loyalties ( Loyalitätskonflikt ) between her and his “former family”, the applicants.",
"24. On 6 December 2004 the applicants appealed against the District Court ’ s decision. They argued that the refusal of visiting rights breached their rights under Article 8 of the Convention.",
"25. The Regional Court dismissed the applicants ’ appeal on 17 February 2005. It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions. The status of a foster parent was, however, a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the one between parents and children had developed. Even though the applicants had lived with F. for approximately forty-six months in the same household with the intent to develop such emotional ties, it was actually more than forty months since they had had care of him and they could now no longer be considered his foster parents. Nevertheless, their appeal had to be considered on its merits, and, for the reasons given by the District Court, granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded.",
"26. On 25 May 2005 the Supreme Court dismissed an extraordinary appeal by the applicant ( außerordentlicher Revisionsrekurs ). That decision was served on the applicants ’ counsel on 7 July 2005."
] | [
"II. RELEVANT DOMESTIC LAW",
"27. Article 148 of the Civil Code ( Allgemeines Bürgerliches Gesetz buch ) reads as follows:",
"“(1) If one parent does not live in a common household with a minor child, then the child and this parent have the right to be in personal contact with each other. The exercise of this right shall be regulated by mutual consent between the child and the parents. Whenever such an agreement cannot be reached, the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child, upon an application by the child or a parent, giving due consideration to the needs and wishes of the child.",
"(2) If necessary, the court shall restrict or not permit the exercise of the right to personal contact, especially if the authorised parent does not comply with his/her obligation under Section 145b.",
"(3) Paragraphs (1) and (2) shall apply by analogy to the relationship between grandchildren and their grandparents. However, the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents (a parent) or their relationship to the child.",
"(4) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child ’ s welfare, the court shall issue the disposition necessary to regulate the personal contact upon an application by the child, a parent, the youth welfare agency, or of its own motion .”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"28. The applicants complained under Article 8 of the Convention that their right to family life had been infringed as a result of the Austrian courts ’ decisions to refuse them access to their former foster child. They also submitted that the conduct of the Austrian courts amounted to a breach of the “ reasonable time ” requirement under Article 6 of the Convention. The Government contested that argument.",
"29. The Court considers that the complaint should be examined under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"30. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"31. The applicants submitted that the District Court had not rejected the petition for visiting rights on the ground that the visiting rights would endanger the child ’ s welfare. The request had instead been rejected on the ground that not granting visiting rights to the foster parents would not endanger the welfare of the child. Such a criterion was not in accordance with the requirements of Article 8 of the Convention. The Regional Court and the Supreme Court had not examined what would really be in the child ’ s interests but had concentrated on the issue of the applicants ’ standing in the proceedings. They had found that because of the considerable period of time which had elapsed since the proceedings had started the applicants could no longer be considered F. ’ s foster parents. Such an approach was unacceptable. It was the responsibility of the Austrian courts that the proceedings had been conducted at such a slow pace and that they had consisted of a continuing exchange of submissions between the parties, the District Courts and various youth welfare bodies, whereas the authorities should have acted particularly speedily given what was at stake for the applicants and the importance the element of time has in such proceedings. Once the District Court had made its decision, the visiting rights had been refused with the argument that it had been a very long time since the child had been with the applicants. Thus, the delay caused by the Austrian courts had been used as an argument for refusing the visiting rights. The applicants did acknowledge the importance of the child ’ s welfare but considered that regard should also be had to the interests of the foster parents.",
"32. The Government accepted that the judgments of the Austrian courts on the applicants request for visiting rights constituted an interference with their right to respect for their family life. That interference was in accordance with the law, that is, it was based on Article 148 (4) of the Civil Code, and it also served a legitimate aim, namely the protection of the rights and freedoms of others, that is, the child concerned and his biological mother. The interference was also necessary in a democratic society. The Austrian courts had carefully balanced the interest of the applicants in further personal contact with their former foster child against the interest of the biological mother of the child in re-constituting and protecting an undisturbed and fruitful mother - child relationship, as well as taking into account the welfare of the child himself. Austrian law attributed a particularly high priority to the welfare of the child in decisions on family-law matters and the interests of adults had often to give way to this priority.",
"33. The Government also argued that the proceedings on the issue of visiting rights had been conducted expeditiously; the matter had been complex and the Austrian courts had done their best to establish the essential basis for their decisions, whereas the applicants and the other party to the proceedings had filed numerous applications and submissions to which the court had had to react, which had inevitably slowed down the proceedings.",
"2. The Court ’ s assessment",
"34. The Court must first examine whether there existed a relationship amounting to private or family life between the applicants and F. within the meaning of Article 8 of the Convention.",
"35. In this respect the Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties (see Anayo v. Germany, no. 20578/07, § 55, 21 December 2010, with further references). The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII ). Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C).",
"36. In the case of Moretti and Benedetti v. Italy the Court considered the relationship between the applicants as foster parents and the child entrusted to them, who had lived with them from the age of one month for a period of nineteen months, as falling within the notion of family life within the meaning of Article 8 § 1 because there had been a close inter-personal bond between the applicants and the child and the applicants had behaved in every respect like the child ’ s parents ( Moretti and Benedetti v. Italy, no. 16318/07, § § 49-50, 27 April 2010 ).",
"37. In the present case F. came into the applicants ’ household at the age of two and lived with them for a period of approximately forty-six months. The applicants tried to obtain custody of F. and to adopt him. In their different decisions the Austrian Courts acknowledged that the applicants had a genuine concern for F. ’ s well - being and that an emotional link between F. and the applicants similar to the one between parents and children had started to develop during that period. The Court therefore considers, and this is not in dispute between the parties, that such a relationship falls within the notion of family life within the meaning of Article 8 § 1. Article 8 therefore applies to the present case and the Court must determine whether there has been a failure to respect the applicants ’ family life.",
"38. As regards compliance with Article 8, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003 ‑ III ).",
"39. The Court further notes that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 ( see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts), and W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121 ). The Court has repeatedly found that in cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty is decisive in assessing whether a case concerning access to children had been heard within a reasonable time as required by Article 6 § 1 of the Convention and also forms part of the procedural requirements implicit in Article 8 (see Kaplan v. Austria, no. 45983/99, § 32, 18 January 2007; Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002; and Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000-VIII). The principle of exceptional diligence applies mutatis mutandis to the present case.",
"40. The Court considers that in the present case the essential question is whether the Austrian courts in their various decisions struck a fair balance between the competing interests of the applicants, the child and the biological mother and, in doing so, complied with the inherent procedural requirements of Article 8 of the Convention. For this reason the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with its positive obligation under Article 8 of the Convention.",
"41. In this connection, the Court recalls that its role is not to substitute itself for the competent domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A ).",
"42. The applicants argued that the Austrian courts had not properly examined their request for the granting of visiting rights because, on the basis of Article 148 (4) of the Civil Code, the courts had concentrated on the issue of whether the applicants had standing in the proceedings or a right to appeal and had dismissed their request merely on the ground that the refusal of visiting rights would not endanger the well - being of F. That was not the kind of weighing of interests required by Article 8 of the Convention.",
"43. The Court observes, however, that the District Court did consider the case on its merits and, as is apparent from its decision, examined whether contact between the applicants and F. would be in the child ’ s best interests. It concluded, however, that it was in the best interests of the child, who was living with his biological mother, not to bring him back into a situation of divided loyalties ( Loyalitätskonflikt ) between her and his “former family”, namely the applicants, and the District Court therefore refused the request. Moreover, the Regional Court examined the applicants ’ appeal on the merits but concluded that the District Court had correctly resolved the matter before it.",
"44. The Court, whose task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, therefore considers that the domestic courts, at the time they took their respective decisions, struck a fair balance between the competing interests. It is not persuaded by the applicants ’ argument that the wording of Article 148 (4) of the Civil Code, which provides for visiting rights only if “ the absence of personal contact between the minor child and a third party ... would jeopardize the child ’ s welfare ”, prevented the domestic courts from doing so. In this context the Court reiterates that, in the balancing process, particular importance should be attached to the best interests of the child, which may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010 ).",
"45. The applicants also submitted that the Austrian courts had failed to decide expeditiously on their request, and that had had a direct impact on the decision taken because when the District Court eventually decided on the request it concluded that because of the time that had elapsed since its introduction the granting of visiting rights was no longer in F. ’ s best interests.",
"46. The Court observes that the proceedings on the applicants ’ request started on 20 December 2001, when they asked the District Court to grant them visiting rights, and ended when the final decision of the Supreme Court was served on them on 7 July 2005, thus lasting for three years, six months and thirteen days. Before the District Court, which took its decision on 9 November 2004, the proceedings lasted for two years, ten months and eleven days. During this period the applicants had no contact with F., who had meanwhile returned to his biological mother. It is true that the case was of some complexity and the applications filed by the applicants during the proceedings may have contributed to their length, but this is not sufficient to explain the total length. On the other hand, before the District Court, notwithstanding the applicants ’ repeated requests for the acceleration of the proceedings, the proceedings progressed particularly slowly and, on two occasions, namely between March 2002 and December 2002 (see paragraphs 12-13 above) and between February 2003 and April 2004 (see paragraphs 15-18 above), they came to a standstill, for which no satisfactory explanation has been furnished by the Government.",
"47. This passage of time also had a direct and adverse impact on the applicants ’ position. At the beginning of the proceedings the Vienna Youth Welfare Office recommended that because of the long-lasting relationship between F. and the applicants a right to access should be granted, and the District Court, in its decision of 9 November 2004, indicated that if the decision had been taken earlier there would have been good reasons to grant the request. Eventually, the District Court, basing itself on reports by the Youth Office of the Mödling District Administrative Authority and the Niederösterreich Child and Youth Psychological Consulting Office drawn up in 2004, dismissed the applicants ’ request. From its decision it is apparent that the passing of time was crucial for the District Court. It noted that F. had not had contact with his former foster parents for more than three years, that meanwhile he had re-established a positive relationship with his biological mother and that it was not in his interests to put him in a situation of divided loyalties between her and his “former family”, namely the applicants.",
"48. In these circumstances, the Court cannot find that the domestic courts complied with their duty under Article 8 to deal diligently with the applicants ’ request for visiting rights. The Court, therefore, finds that the procedural requirements implicit in this Article were not complied with.",
"49. Accordingly, there has been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"50. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"51. The applicants claimed 100,000 euros (EUR) in respect of non-pecuniary damage. They argued that the conduct of the Austrian courts had caused them profound and lasting psychological harm as they still had no contact with their foster - child and had no information on his well-being or development.",
"52. The Government considered the claim excessive.",
"53. The Court considers that the applicants must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court, therefore, awards the applicants 5 ,000 EUR in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants on this amount.",
"B. Costs and expenses",
"54. The applicants also claimed EUR 4,119.79 for the costs and expenses incurred before the domestic courts and EUR 6,739.30 for those incurred before the Court.",
"55. The Government argued that the applicants had failed to show that the costs claimed for the domestic proceedings had been actually and necessary incurred in order to ward off the violation of the Convention found. As regards the costs incurred for the proceedings before the Court, the amount claimed was excessive. Taking the correct basis for the calculation of fees under the Austrian law in respect of lawyer ’ s fees, only an amount of EUR 3,243.92 was justified.",
"56. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000, covering costs under all heads, plus any tax that may be chargeable to the applicants on this amount.",
"C. Default interest",
"57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
80 | Vojnity v. Hungary | 12 February 2013 | This case concerned the total removal of a father’s access rights on the grounds that his religious convictions had been detrimental to his son’s upbringing. The applicant complained in particular that the denial of his access rights had been based on his religious beliefs and that he had been treated differently to other people seeking access rights following divorce or separation. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention. It found that the Hungarian courts had failed to prove that it was in the child’s best interest to have all ties severed with his father, who had therefore been discriminated against in the exercise of his right to respect for family life. Indeed, there had been no exceptional circumstance to justify taking such a radical measure as severing all form of contact and family life between the applicant and his son. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1948 and lives in Szeged.",
"6. On 8 June 2000 the applicant, an adherent of the religious denomination Hit Gyülekezete (Congregation of the Faith), divorced from his wife, and their son, born in 1994, was placed with the mother. The applicant was granted access rights.",
"7. The applicant lodged a motion with the Szeged District Court to reclaim custody or have his access rights re-regulated. The two psychiatric opinions prepared in the course of the ensuing proceedings established that the father’s visits did not impose a burden on the child and suggested loose but regular contact between the applicant and his son. Nonetheless, the court rejected his request on 13 October 2003. Another similar motion of the applicant was also dismissed on 20 June 2004 by the same court, which stated that the child’s removal from his social environment would not be in his interest and that the applicant’s circumstances were not satisfactory for the upbringing of a child. Nonetheless, the court found that the applicant’s behaviour was not malicious towards his son and his access rights should not be withdrawn, as requested by the mother, on the ground of his religious devotion.",
"8. On 11 January 2006 the Szeged Guardianship Authority filed an action to have the child placed with his older brother, the mother having been considered unfit. In respect of a potential placement with the applicant, the Authority had regard to its observations that his heavy-handed proselytism vis-à-vis the son and his inadequate housing conditions represented a danger for the boy.",
"9. The Szeged District Court appointed an expert psychologist. In his opinion of 5 September 2006 the expert found, having examined the applicant, the mother, their son and his older brother, that the boy had strong emotional ties to his siblings and his mother but none to his father. According to the expert, the applicant held unrealistic educational ideas hallmarked by religious fanaticism which rendered him unfit to provide the son with a normal upbringing; indeed, he forced his beliefs on his son to an extent that it resulted in the latter’s alienation from him.",
"10. On 12 September 2006 the District Court placed the child with his brother, but maintained the applicant’s access rights. This decision was upheld by the Csongrád County Regional Court, acting as a second-instance court, on 2 October 2006.",
"11. Subsequently the brother filed an action against the applicant seeking deprivation of his access rights.",
"12. The District Court appointed an expert psychologist. In his opinion of 14 September 2007 the expert submitted, after examining the brother and the son – but not the applicant –, that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism. He was of the view that the applicant was unfit to contribute to the son’s normal development and that the applicant should be subjected to examination by an expert psychiatrist. He suggested that the applicant’s access rights should be removed altogether, because his visits – which went beyond the authorised occasions – were of a vexatious nature and harmful for the child.",
"13. The District Court then gave judgment and removed the applicant’s access rights altogether. Relying essentially on the expert’s opinion, it held that his vexatious and harmful appearances in his son’s life amounted to an abuse of his access rights and seriously endangered the child’s development and upbringing.",
"14. On appeal, on 4 February 2008 the Csongrád County Regional Court upheld the first-instance judgment. It held that even considering the acknowledged mutual interest of the child and his father in maintaining a family tie based on affection, this consideration was not applicable in the case, since the applicant abused his rights to influence the child in pursuit of his own religious beliefs, which triggered anxiety and fear in the boy and endangered his development. In particular, the Regional Court found, relying on the expert opinion, that the applicant’s “irrational worldview made him incapable of bringing up his child” and that he “did not exercise his right of access in accordance with its purpose ... but to impose his religious convictions on the child”."
] | [
"II. RELEVANT DOMESTIC LAW",
"15. Act no. IV of 1952 on Marriage, Family and Guardianship (“the Csjt.”) provides as follows:",
"Section 1",
"“(2) In the application of this Act the minor child’s interest shall always be taken into account and his or her rights shall be safeguarded.”",
"Section 92",
"“(1) The child shall have the right to maintain direct contact in person with his or her parent living separately. Maintenance of regular contact with the child is a right and obligation of the parent living separately (access rights). The parent or any other person bringing up the child shall be under the obligation of ensuring undisturbed maintenance of contact.",
"(2) A parent shall – unless [subject to a restraining order] – have the right to maintain contact with his or her child even where the parent’s custody rights are suspended.",
"(3) In exceptionally justified cases, in the interest of the child, the parent whose custody was withdrawn by the court or ceased under section 48 (3) and the child has not been adopted may also be entitled to maintain contact with his or her child. Such a decision shall be delivered by the court which terminated the parent’s custody or – where the child has been placed in permanent foster care – by the guardianship authority.",
"(4) In absence of agreement between the parents, or in case of dispute between the parents and the guardian, the decision on the maintenance of contact shall be taken by the guardianship authority. The guardianship authority or the court proceeding in marriage- or child-placement-related cases may restrict or terminate this right or suspend its exercise.",
"(5) Where the decision on the maintenance of contact was taken by a court, amendment of the court’s decision may only be sought before a court, within two years from its having become final.",
"(6) The execution of the court decision on the maintenance of contact shall be arranged for by the guardianship authority.”",
"16. Government Decree no. 149/1997. (IX. 10.) on Child Custody Boards, Child Protection Procedure and Child Custody Board Procedure provides as follows:",
"Section 27",
"“(1) The aim of the access rights is:",
"a) to maintain family contact between the child and the persons entitled to access according to paragraph (1) of section 28, and",
"b) that the parent having access rights follow continuously and support, by doing his/her utmost, the upbringing and the growth of the child.”",
"Section 28",
"“(1) The parents, the grandparents, the major siblings ... are all entitled to access.”",
"Section 30",
"“(6) The guardianship authority or the court may appoint as the place of exercising access rights the [premises of the child welfare centre].”",
"Section 30/A",
"“(1) If the parents ... cannot find an agreement about the time or manner of exercising access rights, the guardianship authority shall draw the parties’ attention to the possibility of availing themselves of ‘mediation with a view to protecting the child’ ( gyermekvédelmi közvetítői eljárás ).”",
"Section 31",
"“(5) The guardianship authority or the court may – upon request – withdraw the access rights of the person with access if he or she exercises the access rights in grave violation of the interest of the child or the person having custody and by this conduct gravely endangers the child’s upbringing and development.”",
"Section 32",
"“(1) The re-regulation of access rights – not including the restriction, suspension or withdrawal of the access rights – may be requested within two years from the date on which the decision thereon became final, if the circumstances underlying the decision of the court or the guardianship authority have later significantly changed and the re-regulation of the access rights serves the interest of the child...",
"(4) In the proceedings for the re-regulation of the access rights the guardianship authority or the court may, upon request, in the interest of the child, lift the restrictions imposed on the access rights and may restore the access rights where the circumstances on which the decision was based no longer prevail.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION",
"17. The applicant complained that the denial of his access rights in respect of his son had been based on his adherence to the religious denomination Hit Gyülekezete, amounting to a differential treatment in respect of the enjoyment of his right to respect for family life. He claimed in this respect a violation of his rights under Article 8 of the Convention, both taken alone and read in conjunction with Article 14.",
"He further complained that his right to freedom of thought, conscience and religion had been violated, since the impugned measure had been directly linked to the manifestation of his religious belief and thus fell within the ambit of Article 9 of the Convention.",
"Article 8 reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 9 provides as follows:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"18. The Government contested these arguments.",
"19. The Court considers that it is appropriate to examine the applicant’s complaints under Article 14 read in conjunction with Article 8 of the Convention (see, e.g., mutatis mutandis, Zaunegger v. Germany, no. 22028/04, § 34, 3 December 2009).",
"A. Admissibility",
"20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ arguments",
"a. The applicant",
"21. The applicant submitted that he had been treated differently due to his religious convictions in respect of the enjoyment of his rights under Article 8 of the Convention from other persons seeking access rights to their children following divorce or separation. In particular, he submitted that the domestic authorities’ decision withdrawing his access rights in respect of his son on the basis of his religious beliefs had amounted to an unjustifiable interference with his right to respect for family life.",
"22. The applicant moreover argued that access to his son had been refused not in the interest of the child’s physical or mental integrity but due to his religious convictions. Relying in particular on the decision of the Csongrád County Regional Court, he claimed that the domestic courts had found deficiencies in his methods and ideas of upbringing since he had intended to transfer his religious worldview to his son.",
"23. Furthermore, the applicant submitted that although several less restrictive measures existed under Hungarian law, the domestic authorities had failed to examine them.",
"b. The Government",
"24. The Government acknowledged that there had been an interference with the applicant’s right to family life. They stressed however that intervention by the domestic courts had been prescribed by law, namely section 92 (4) of the Csjt. (see paragraph 15 above). Moreover, it pursued a legitimate aim, that is, the protection of the child’s interests, and was necessary in a democratic society. They added that in this field the child’s interests were paramount, overriding the interests of the parents.",
"25. The Government moreover disputed the allegation that in the instant case the applicant had been treated differently. They pointed out that the domestic courts had taken into account, in accordance with the Hungarian law, the child’s best interest alone, and the decisions of the Szeged District Court and the Csongrád Court of Appeal had been based on the fact that, in the circumstances of the case, the maintenance of the applicant’s contact rights would not have served the child’s interest.",
"26. The Government concluded that the domestic courts, in reaching their decision, had had regard exclusively to the overriding interest of the child and not the applicant’s religious beliefs. Thus, the applicant had not been discriminated against in any manner.",
"2. The Court’s assessment",
"27. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000 ‑ X).",
"28. The Court notes at the outset that in the instant case the applicant had regular contact with his son until the decision of the Csongrád County Regional Court of 4 February 2008 which deprived him of all access rights (see paragraph 14 above). In this respect, the Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156). The applicant having been deprived of this element, the Court finds that the Regional Court’s decision constituted an interference with the applicant’s right to respect for family life.",
"Thus the case falls within the ambit of Article 8 of the Convention.",
"29. The Court further reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Hoffmann v. Austria, 23 June 1993, § 31, Series A no. 255 ‑ C). In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94).",
"30. Consequently, it must first be determined whether the applicant can complain of such a difference in treatment in regard to his right to respect for family life.",
"31. The Court will first ascertain whether or not the applicant’s access rights were removed essentially on account of his religious conviction. It is true that the domestic courts had regard above all to the child’s interest when granting the request for the withdrawal of the applicant’s access rights (see paragraph 13 above). However, the Court notes that when deciding on the applicant’s suitability to contribute to his son’s development, the domestic authorities added to their consideration the factor – for that matter, evidently the decisive one – of the applicant’s religious conviction and its possible effects on the child. In particular, the Regional Court based its ruling on the expert opinion stating that the applicant’s “irrational worldview made him incapable of bringing up his child”. Furthermore, the Regional Court held against the applicant that during his contacts with the child, he had intended to transfer his religious convictions to him (see paragraph 14 above). It does not appear that other points of fact or law were considered in depth. In this connection, the Court has already held that a distinction based essentially on a difference in religion alone is not acceptable (see Hoffmann, cited above, § 36).",
"Therefore, in the Court’s view, the applicant’s religious convictions had a direct bearing on the outcome of the matter in issue. Consequently, there has been a difference of treatment between the applicant and other parents in an analogous situation, which consisted of reproaching the applicant for his strong religious convictions.",
"32. As has been well established in the Court’s case-law, such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003 ‑ XII).",
"33. The Court is of the opinion that the aim pursued in the instant case, namely the protection of the health and rights of the child, is legitimate.",
"34. It remains to be determined whether there was a reasonable relationship of proportionality between the means employed, namely depriving the father of his access rights altogether, and the legitimate aim pursued.",
"35. The Court recalls that Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the circumstances, the subject matter and its background (see Zaunegger, cited above, § 50).",
"36. The Court notes that the subject matter of this case is the applicant’s differential treatment in the context of the total removal of his access rights to his son, and this to a decisive extent on account of the applicant’s religious beliefs. It considers that, in the light of the importance of the rights enshrined in Article 9 of the Convention in guaranteeing the individual’s self-fulfilment, such a treatment will only be compatible with the Convention if very weighty reasons exist. The Court has applied a similar approach in the context of differences in treatment on the basis of sex (see Abdulaziz, Cabales and Balkandali, cited above, § 50), birth status (see Inze v. Austria, 28 October 1987, § 41, Series A no. 126), sexual orientation (see L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003 ‑ I) and nationality ( Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996 ‑ IV).",
"37. In the present case, the Government have pointed to the importance of protecting the child’s psychological health from the purported stress exerted by the applicant’s intensive efforts to transfer his convictions to him. While the Court accepts that the domestic authorities may have showed legitimate concern in this respect, it has reservations as to whether this consideration qualifies as a very weighty reason allowing for differential treatment. It would add that the rights to respect for family life and religious freedom as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in education, as provided in Article 2 of Protocol No. 1 to the Convention, convey on parents the right to communicate and promote their religious convictions in the bringing up of their children. The Court adds in this context that this would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless this exposes the latter to dangerous practices or to physical or psychological harm, and it sees no reason why the position of a separated or divorced parent who does not have custody of his or her child should be different per se.",
"38. The Court observes that in the present case there is no evidence that the applicant’s religious convictions involved dangerous practices or exposed his son to physical or psychological harm. It is true that the expert appointed by the District Court considered that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism (see paragraph 12 above) but no convincing evidence was presented to substantiate a risk of actual harm, as opposed to the mere unease, discomfort or embarrassment which the child may have experienced on account of his father’s attempts to transmit his religious beliefs. The Court notes in this connection that the expert did not examine the applicant, nor was his suggestion that the applicant should be examined by a psychiatrist followed up. It further notes that while the Regional Court, in upholding the first-instance judgment, referred to the child’s “anxiety and fear”, it deprived the applicant of his access rights essentially on account of the applicant’s “irrational worldview” and his attempts to impose his religious convictions on the child, without explaining what real harm these caused to the child.",
"39. In any event, even assuming that the authorities’ concern about the psychological damage the applicant’s child may have suffered amounts to a very weighty reason for the purposes of assessing the differential treatment in question, the Court considers that the solution chosen by the authorities in the face of this problem cannot be accepted for the following reasons.",
"40. In respect of restrictions on family life, the Court reiterates that as regards restrictions placed by authorities on parental rights of access, a stricter scrutiny is called for than in the context of custody (see Görgülü v. Germany, no. 74969/01, § 42, 26 February 2004). It is in a child’s interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX).",
"41. The Court observes that the domestic courts’ decisions on the removal of the applicant’s access rights rendered impossible any form of contact and the establishment of any kind of further family life.",
"It is to be recalled that a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see B. v. the United Kingdom, 8 July 1987, § 77, Series A no. 121).",
"42. In the instant case, the Court considers that the Government have not demonstrated the presence of such exceptional circumstances. This is all the more troubling in the face of the fact that – although the domestic courts examined the psychological strain which his father’s religious practice would represent for the child (see paragraph 14 above) – they gave no consideration to the question whether the mere suspension of the applicant’s access for a certain period of time or any other less severe measure that exists under Hungarian law (such as the exercise of access rights in controlled circumstances) would have been sufficient to allow the child to regain his emotional balance. Instead, they decided to apply an absolute ban on the applicant’s access rights. For the Court, the approach adopted by those authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention.",
"43. In sum, in view of the fact that the domestic courts applied a very restrictive measure to the applicant’s detriment, without giving due consideration to possible alternatives, the Court concludes that in respect of the measure at issue there was no reasonable relationship of proportionality between a total ban on the applicant’s access rights and the aim pursued, namely the protection of the best interest of the child. Consequently, the applicant has been discriminated against on the basis of his religious convictions in the exercise of his right to respect for family life.",
"There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8 in the instant case.",
"II. ALLEGED VIOLATION OF ARTICLE 8 TAKEN ALONE OR ARTICLE 9 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14",
"44. The applicant further complained that there had been an interference with his freedom of religion within the meaning of Article 9 of the Convention, and that this interference was discriminatory within the meaning of Article 9 taken in conjunction with Article 14. He also complained that there had been a breach of Article 8 taken alone.",
"45. The Court considers that, while these complaints are also admissible, no separate issue arises under these provisions, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found.",
"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"46. Lastly, invoking Article 6 of the Convention, the applicant complained that the courts had dealt with his case in an unfair manner, accepting unsubstantiated allegations about his capacity to contribute to the upbringing of his child.",
"47. The Court considers that, while this complaint is also admissible, no separate issue arises under this provision, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"48. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"49. The applicant claimed 642,857 euros (EUR) in respect of non-pecuniary damage.",
"50. The Government contested this claim.",
"51. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 12,500 under this head.",
"B. Costs and expenses",
"52. The applicant also claimed EUR 6,429 for the costs and expenses incurred before the Court. This sum corresponds to 42 hours of legal work billable by his lawyer charged at an hourly rate of EUR 120 plus VAT (that is, EUR 6,400.80) as well as travel costs in the amount of EUR 28.84.",
"53. The Government contested this claim.",
"54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads.",
"C. Default interest",
"55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
81 | Kuppinger | 15 January 2015 | This case concerned in particular the complaint by the father of a child born out of wedlock that the proceedings he had brought to enforce court decisions granting him contact rights with his son had been excessively long and ineffective. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention as regards the execution of an interim decision of May 2010 granting the applicant the right to see his son. It found that the German authorities had failed to take effective steps to execute the decision in question. The Court further held that there had been no violation of Article 8 as regards both the execution of an order on contact custodianship of September 2010 and the proceedings on the review of the contact regulations. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 8 of the Convention, finding, in particular, that he did not have an effective remedy under German law against the length of proceedings which did not only offer monetary redress, but which could have expedited the proceedings on his contact rights before the family courts. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background to the case",
"5. The applicant was born in 1953 and lives in Heidelberg. He is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with him. In 2004 the applicant unsuccessfully attempted to establish contact.",
"6. On 19 May 2005 the applicant lodged a request with the Frankfurt / Main District Court for the regulation of contact rights. The course of proceedings before the District Court is summarised in the Court ’ s judgment in the case of Kuppinger v. Germany [Committee], no. 41599/09, §§ 6-33, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contact between the applicant and his son. Three supervised contact meetings took place between 14 June and 19 July 2007.",
"7. On 21 December 2009 the District Court suspended the applicant ’ s contact rights for one year. This decision was amended on 22 March 2010 with respect to the applicant ’ s right to be informed about the child ’ s personal circumstances.",
"8. By judgment of 21 April 2011 (see Kuppinger, cited above, § 51), the Court found that the length of the proceedings before the Frankfurt District Court, which had lasted from 19 May 2005 to 22 March 2010, violated the applicant ’ s right to a trial within a reasonable time under Article 6 § 1 of the Convention. The Court further considered that there had been a violation of the right to an effective remedy under Article 13 of the Convention.",
"B. Execution of the interim decision of 12 May 2010",
"9. On 30 December 2009 the applicant lodged an appeal against the decision given by the District Court on 21 December 2009. On 15 April 2010 the Frankfurt Court of Appeal held a hearing.",
"10. By interim decision of 12 May 2010 the Court of Appeal decided that the applicant had the right to see his son for three hours on six specific dates between 26 May and 6 August 2010. The first three contact meetings were to take place in the presence of a supervisor. The Court of Appeal further ordered the child ’ s mother to take the child to the meetings on time. Finally, the Court of Appeal warned the mother that an administrative fine ( Ordnungsgeld ) of up to 25,000 euros (EUR) could be imposed if she did not comply with her obligations under this decision.",
"11. The Court of Appeal noted that the last contact meeting had taken place in 2007. There was no indication that contact with the applicant would jeopardise the child ’ s welfare. According to expert opinion, the child ’ s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother ’ s stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflict between the parents, and their ensuing lack of communication, posed a risk to successful contact. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the granting of contact rights could not await the outcome of successful counselling.",
"12. The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important to re ‑ establish contact carefully after a regrettable interruption of two years.",
"13. On 31 May 2010 the supervisor reported on the first contact meeting, scheduled for 26 May 2010, which had been postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child had decided to go to his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holiday for the two meetings scheduled for 25 June and 2 July 2010 and that the parties ’ counsels would have to agree on alternative dates.",
"14. On 18 June 2010 the supervisor reported on the second contact meeting scheduled for 11 June 2010. According to the report, the meeting had lasted around 35 minutes during which the applicant and his son had engaged in several play activities. The meeting was interrupted by two interactions between the child and his mother. Subsequently, the child told the applicant that he did not wish to play with him and left with his mother.",
"15. On 25 May 2010 the mother ’ s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother ’ s absence and that she expected that the meetings would be re-scheduled for 20 August and 3 September 2010.",
"16. On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were to take place during the mother ’ s holidays.",
"17. On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings, which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof of her alleged holiday absence.",
"18. On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least EUR 3,000 on the mother for having failed to enable him to exercise his contact rights on 26/29 May and a further EUR 5,000 for having prevented him from exercising his contact rights on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date, 29 May 2010, the mother had brought the child, but taken him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant ’ s counsel referred to the case of Koudelka v. the Czech Republic, no. 1633/05, 20 July 2006 ), the applicant further requested the District Court to reach a decision speedily.",
"19. On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child had refused to go with his father and the supervisor ’ s mediation attempts had been to no avail.",
"20. On 30 July 2010 the mother submitted documents to justify her absence.",
"21. On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish to have any contact. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30 minutes late because of traffic problems. The supervisor informed him that mother and child had left the building after ten minutes.",
"22. On 25 August 2010 the Youth Office submitted comments.",
"23. On 26 August 2010 the District Court scheduled a hearing for 10 September 2010.",
"24. On 9 September 2010 the District Court, on the mother ’ s counsel ’ s request, postponed the hearing to 24 September 2009.",
"25. During the hearing on 24 September 2010 the District Court heard the supervisor ’ s oral submissions.",
"26. On 1 September 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings.",
"27. On 22 October 2010 the applicant ’ s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file.",
"28. By decision of 12 November 2010 the District Court imposed an overall administrative fine of EUR 300 on the mother for having contravened the contact order six times. The District Court noted that it was not in dispute between the parties that contact did not take place, or took place only for a limited period of time, on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contact, albeit to a limited degree.",
"29. The District Court considered that the fact that contact visits were terminated because of the child ’ s resistance did not exonerate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits. The mother had failed to establish that she had undertaken such measures. She might have had good reason for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal ’ s or the applicant ’ s consent. Finally, the mother was under an obligation to wait for the applicant on 6 August 2010, taking into account that the applicant had informed her beforehand that he would be late.",
"30. The District Court observed that the relevant provisions prescribed an administrative fine of up to EUR 25,000 for each established contravention of the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2 October 2010 (see paragraph 45, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contact. Against this background, the mother ’ s personal responsibility appeared to be minor. This was even more so as the mother did not completely prevent contact, but took the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child ’ s established pattern of behaviour. It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because a contact custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure.",
"31. According to the District Court, account also had to be taken of the fact that the purpose of the first dates, on which the child had prematurely terminated the contact visits, was to institute contact. It was inherent in this constellation that contact could only be established gradually and might fail. The Court of Appeal had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child.",
"32. With regard to the contact meetings scheduled for 25 June and 2 July 2010, the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account. He had thus incurred travel and other expenses on these dates in spite of this knowledge.",
"33. Considering these circumstances, the Court found it reasonable to impose an administrative fine of EUR 80 for each of the three occasions when contact did not take place at all and of EUR 20 each for the three remaining contraventions.",
"34. Both parties lodged complaints. The applicant submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention.",
"35. On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal.",
"36. On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011.",
"37. On 2 February 2011 the Court of Appeal rejected both parties ’ complaints. In respect of the applicant ’ s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive.",
"38. On 28 February 2011 the applicant lodged an application to be heard ( Anhörungsrüge ) with the Court of Appeal, which was rejected by that court on 4 May 2011.",
"39. On 16 August 2011 the Federal Constitutional Court refused to accept the applicant ’ s constitutional complaint for adjudication (no. 1 BvR 1544/11).",
"40. In the meantime, on 14 February 2011 the applicant requested the District Court to execute its decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance court fees. On 26 April 20 11 the District Court requested the applicant to submit an original version of the decision to be executed. On 4 May 2011 the applicant pointed out that the decision had to be executed ex officio. On 1 June 2011 the mother, who had been granted leave to pay by instalments, had paid the administrative fine in full. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid.",
"C. Execution of the contact order of 1 September 2010",
"41. On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of contact rights) and granted the applicant contact rights on every second Wednesday afternoon for three hours each time, beginning on 29 September 2010. Following four supervised contact meetings, the applicant was to have the right to unsupervised contact meetings of up to eight hours each. The Court of Appeal further appointed Mr. H. as custodian for the implementation of contact rights ( Umgangspfleger ). The mother was ordered to hand over the child to the custodian for the purpose of contact meetings. Both parents were ordered to have preparatory conversations with the custodian.",
"42. The Court of Appeal confirmed its previous finding that there was no indication that contact with his father would jeopardise the child ’ s welfare and that there was thus no reason to suspend contact rights. There was furthermore not sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child ’ s verbal refusals to meet his father were not based on the child ’ s own assessment, but stemmed from the child ’ s loyalty to his mother as his immediate caregiver. It was evident that contact meetings had solely failed because of the mother ’ s lack of willingness or her inability to allow such contact.",
"43. The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings.",
"44. In view of the mother ’ s continuing failure to fulfil her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of contact rights. The Court of Appeal observed that the custodianship had to be subject to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son, allowing continued contact.",
"45. On 2 October 2010 the custodian informed the Court of Appeal that he had met the applicant, who had been uncooperative and did not seem to take an interest in the child ’ s welfare. Under these circumstances, contact could not take place as scheduled. Nevertheless, in order to allow for contact, he recommended that the applicant seek professional counselling.",
"46. On 15 November 2010 the applicant requested the District Court to discharge the custodian from his duties.",
"47. On 16 November 2010 the District Court appointed a curator ad litem to represent the child ’ s interests and submitted the request to the mother, the custodian and to the Youth Office for comments within one week.",
"48. On 30 November and 9 December 2010 the Youth Office and the mother asked the District Court to reject the request.",
"49. On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011.",
"50. On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, had not respected the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters (see Relevant Domestic Law, below).",
"51. On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge ’ s return from holidays.",
"52. On 21 January 2011 a hearing took place in the absence of the custodian, who had informed the District Court that he was on holiday.",
"53. On 29 January 2011 the custodian requested the District Court to discharge him from his duties.",
"54. Between 2 and 9 February 2011 the District Court judge contacted by telephone eight potential custodians. Ms R. was ready to supervise the first contacts, while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits.",
"55. On 11 February 2011 the District Court informed the parties that custodian H. could only be dismissed if a new custodian was appointed. The District Court ’ s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and enquired about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations ( Abänderungsverfahren, see paragraphs 67-81, below ).",
"56. On 16 March 2011 the mother challenged the District Court judge for bias. She withdrew her motion on 12 April 2011.",
"57. On 12 April 2011 the applicant ’ s counsel informed the mother ’ s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal ’ s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14 April 2011 the mother ’ s counsel replied that she considered that the applicant did not have the right to unsupervised contact.",
"58. Between 16 April and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits. Between 10 May and 11 July 2011 the applicant lodged 6 requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings.",
"59. On 27 June 2011 the mother ’ s counsel requested the District Court to suspend proceedings pending the proceedings on the review of contact rights.",
"60. By decision of 29 June 2011 the District Court established that Mr H. ’ s custodianship had expired on 31 March 2011.",
"61. On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant ’ s letter of 5 July 2011.",
"62. On 19 July 2011 the applicant complained that the District Court ’ s failure to decide on his requests violated his right to an effective legal remedy.",
"63. On 19 July 2011 the District Court informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011.",
"64. On 26 August 2011 the District Court rejected the applicant ’ s requests to impose administrative fines on the mother. The District Court observed that the supervised contact ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contact could take place without an initial phase of supervised contact. This question was the subject matter of the new proceedings on the review of contact rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the contact order of 1 September 2010.",
"65. On 13 September 2011 the applicant lodged a complaint which was rejected by the Frankfurt Court of Appeal on 12 December 2011.",
"D. Proceedings on the review of regulations on contact rights",
"66. On 11 February 2011 the Frankfurt District Court instituted ex officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take on duties as custodians, for 16 March 2011.",
"67. During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contact, in particular the envisaged length of the first unsupervised contact meeting. The mother challenged the District Court judge for bias (compare paragraph 56 above for the parallel proceedings). On 31 March 2011 the substitute judge requested the mother ’ s counsel to submit reasons for this motion. On 12 April 2011 the mother ’ s counsel withdrew the motion.",
"68. On 18 May 2011 the District Court judge heard the child.",
"69. On 29 June 2011 the District Court decided to hear expert opinion on the question of whether the decision on contact rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child ’ s best interests either to order unsupervised contact or to suspend contact rights.",
"70. On 15 July 2011 the applicant challenged the court - appointed expert for bias. On 25 July 2011 the District Court rejected the motion as being unfounded. On 5 August 2011 the applicant lodged a complaint. On 3 November 2011 the Court of Appeal accepted the motion.",
"71. On 19 December 2011 District Court appointed a new expert. On 15 March 2012 the expert informed the court that he had been unable to contact the applicant. The applicant informed the court that he was unavailable for further examination. On 29 March 2012 the applicant ’ s counsel abandoned his brief.",
"72. On 17 April 2012 the applicant requested the District Court to schedule a hearing immediately.",
"73. On 20 April the District Court, having received the expert report on 19 April, scheduled a hearing for 29 May 2012 and informed the parties that the applicant could be assessed on the basis of the expert ’ s personal impression gained during the hearing. On 22 May 2012 the applicant rejected the District Court judge on grounds of bias and the hearing was cancelled.",
"74. On 22 June 2012 the challenge for bias was rejected as being unfounded. On 9 July 2012 the applicant lodged an appeal which was rejected by the Court of Appeal on 31 October 2012.",
"75. On 16 November 2012 the District Court scheduled a hearing for 30 January 2012. On 5 December 2012 the applicant lodged a fresh challenge for bias, which was dismissed on 29 January 2013. On 15 March 2013 the District Court scheduled a hearing for 11 April 2013. Upon the applicant ’ s request, the hearing was postponed to 6 June 2013.",
"76. On 1 June 2013 the applicant informed the District Court that health reasons prevented him from attending the hearing. The District Court, taking into account the parties ’ absences during the summer months, postponed the hearing to 22 August 2013.",
"77. On 14 August 2013 the applicant once again requested the District Court to cancel the hearing. He did not appear at the hearing which took place on 22 August 2013. On 11 September 2013 the applicant requested the District Court to re-open the hearing, while at the same time submitting that he was unfit to appear in court.",
"78. On 12 November 2013 the Frankfurt District Court suspended the applicant ’ s contact rights until 31 October 2015 on the ground that contact against the child ’ s expressed will would jeopardise his welfare. The applicant lodged an appeal.",
"79. The applicant did not appear at the hearing which took place before the Frankfurt/Main Court of Appeal on 11 February 2014. The Court of Appeal scheduled a further hearing for 21 May 2014, to which the court - appointed expert was also summoned. On 20 May 2014 the applicant asked the Court of Appeal to allow him to bring a private expert to the hearing and, at the same time, to postpone the hearing scheduled for the following day as the private expert was unable to attend. The Court of Appeal referring, inter alia, to section 155 of the Act on Procedure in Family Matters, refused the request. On 21 May 2014 counsel for the applicant, who did not attend the hearing in person, challenged the Chamber of the Court of Appeal for bias, which was dismissed on 21 July 2014.",
"80. On 17 September 2014 the Frankfurt /Main Court of Appeal confirmed the suspension of contact rights until 31 October 2015. It furthermore allowed the father to write monthly letters, which the mother was ordered to hand over to the child. Relying on expert opinion, the Court of Appeal considered that personal contacts against the consistently expressed will of the child, who had now reached the age of eleven, would jeopardise the child ’ s psychological development and had thus to be temporarily excluded. The Court of Appeal further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child, which had already lasted more than a decade, had not only been caused by the parents ’ and, in particular, the mother ’ s failure, but also by a failure of the judiciary and of the children and youth welfare services involved."
] | [
"II. RELEVANT DOMESTIC LAW",
"81. Section 1684 of the German Civil Code provides:",
"Contact of the child with its parents",
"“(1) The child has the right to contact with each parent; each parent has a duty and a right of contact with the child.",
"(2) The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person.",
"(3) The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of contact ( contact custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited...",
"(4) The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. .. .”",
"82. Under section 1626a of the Civil Code as in force until 18 May 2013, the parents of a minor child born out of wedlock exercised joint custody if they made a declaration to that effect or if they married. Otherwise the mother obtained sole custody.",
"83. Section 155 of the Act on Procedure in Family Matters ( Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ) as in force since 1 September 2009 reads as follows:",
"“(1) Parent and child matters referring to the child ’ s place of abode, contact rights or the surrender of the child, as well as proceedings based on a threat to the child ’ s welfare must be conducted as a matter of priority and expediently.",
"(2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for postponement must be furnished when the request for postponement is made.",
"(3) ...”",
"84. Section 89 provides",
"Administrative fines ( Ordnungsmittel )",
"“(1) In case of non-compliance with an enforcement order for the surrender of persons and for the regulation of contact, the court may impose an administrative fine ( Ordnungsgeld ) on the obligated party and in the event that the administrative fine cannot be collected it may order arrest for disobedience to court orders ( Ordnungshaft ). Where the imposition of an administrative fine lacks prospect of success, the court may order arrest. The order is taken by court decision.",
"(2) The decision ordering the surrender of a person or the regulation of contacts shall indicate the consequences of any non-compliance with the enforcement order.",
"(3) The amount of an individual administrative fine shall not exceed EUR 25,000 ...",
"(4) No administrative measure shall be imposed if the obligated person submits reasons establishing that he cannot be held liable for the non-compliance ... ”",
"85. According to section 90 of that same law, decisions on contact rights shall not be executed by use of direct force against a child.",
"86. The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) entered into force on 3 December 2011. According to section 198, paragraph 1, of the Courts Constitution Act as amended by the Remedy Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A prior objection to delay ( Verzögerungsrüge ), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or has already become the subject of a complaint with this Court. In pending proceedings the objection to delay should be raised without delay, when the Remedy Act entered into force. In these cases the objection preserved a subsequent compensation claim even retroactively. For further details compare Taron v. Germany (dec.), no. 53126/07, §§ 29-26, 29 May 2012).",
"THE LAW",
"I. SCOPE OF THE COMPLAINT",
"87. In his submissions to the Court, the applicant complained about the domestic courts ’ failure to implement his contact rights in proceedings instituted on 19 May 2005.",
"88. The Government pointed out that the proceedings between 19 May 2005 and 22 March 2010 could not be re-examined by the Court as they had been the subject matter of the judgment given by the Court on 21 April 2011 ( Kuppinger, cited above).",
"89. The applicant submitted in reply that the previous proceedings before the Court exclusively concerned his complaint under Article 6 § 1 of the Convention about the excessive length of the proceedings, but not the complaint about the excessive length and lack of effectiveness under Article 8 of the Convention. The instant case thus clearly concerned distinct subject matter.",
"90. Article 35 § 2 ( b ) of the Convention provides:",
"“The Court shall not deal with any application submitted under Article 34 that ... is substantially the same as a matter that has already been examined by the Court ... ”",
"91. The Court observes that in its judgment given on 21 April 2011 ( Kuppinger, cited above ), a Committee of the Court examined the applicant ’ s complaints under Articles 6 and 8 about the length of contact proceedings lasting from 19 May 2005 until 22 March 2010. The Court chose to examine this complaint solely under Article 6 of the Convention (see Kuppinger, cited above, § 37). The Court reiterates that a complaint is characterised by the facts alleged in it, not by the legal grounds or arguments relied on ( see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; and Previti v. Italy (dec.), no. 45291/06, 8 December 2009 ). It follows that the complaint about the conduct of contact proceedings prior to 22 March 2010 is substantially the same as a matter that has already been examined by the Court in the above - mentioned judgment.",
"92. It follows that the complaint concerning the proceedings between 19 May 2005 and 22 March 2010 must be rejected under Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same as a matter that has already been examined by the Court and that the Court is only competent to examine the proceedings which took place after that date.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"93. Regarding the proceedings which took place after 22 March 2010, the applicant complained that the domestic authorities failed to implement his contact rights with his son, thus violating his right to respect for his family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"94. The Government contested that argument.",
"95. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"A. Merits",
"1. Execution of the interim decision of 12 May 2010",
"( a ) The applicant ’ s submissions",
"96. According to the applicant, the administrative fine imposed by the Frankfurt/Main District Court was ineffective and obviously inappropriate for implementing his contact rights. As was to be expected, the fine did not have any impact on the mother ’ s behaviour. There was, furthermore, no indication that the appointment of a contact custodian would change the mother ’ s refusal of contact. The applicant furthermore claimed that the length of the administrative fine proceedings had been excessive.",
"(b) The Government ’ s submissions",
"97. The Government considered that the District Court had taken measures which could reasonably be expected to enable effectively the implementation of the contact decision of 12 May 2010. The sum of EUR 300, even though it may appear a small amount at first glance, represented an appropriate measure for promoting the child ’ s mother ’ s willingness to cooperate. Given the highly escalated conflict between the parents, it was already doubtful whether an administrative measure provided for by law could actually represent an appropriate means to enforce contact. The fact that his mother was exposed to administrative fine proceedings had rather intensified the child ’ s rejection of the applicant. Given the extremely complex and contentious situation, the District Court ’ s assessment of the degree of the mother ’ s accountability was comprehensible. Furthermore, it had to be taken into account that the measure was primarily aimed at sanctioning past behaviour, as the appointment of a contact custodian meant that further contraventions of the decision on contact rights were not to be expected.",
"98. The Government further submitted that the District Court took the decision on the administrative measures three and a half months after the applicant ’ s request. The fact that the District Court awaited the return of the case file before taking its decision on 12 November 2010 was not cause for objection given the complexity of the proceedings and the fact that the main proceedings had already been terminated on 1 September 2010. The joinder of the two requests lodged by the applicant on 21 July and 11 August 2010 served the purpose of enhancing the efficiency of the proceedings. The District Court judge had granted the case the highest priority and had even postponed her own holiday plans in order to be able to schedule the hearing at the earliest possible date.",
"(c) The Court ’ s assessment",
"99. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005 and Tsikakis v. Germany, no. 1521/06, § 74, 10 February 2011 ).",
"100. Furthermore, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In relation to the State ’ s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V).",
"101. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution that can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299 ‑ A; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003).",
"102. In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide, cited above, § 102).",
"103. Finally, the Court has held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide, cited above, § 106; and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 130, 1 December 2009 ).",
"104. Turning to the circumstances of the instant case, the Court notes that the Frankfurt Court of Appeal decided on 12 May 2010 that the applicant had the right to see his son for three hours on each of six specific dates between May and August 2010. These contact meetings were to be followed by unsupervised visits. On 21 July 2010 the applicant asked the District Court to impose an administrative fine of at least EUR 3,000 on the mother, as none of the visits had taken place as scheduled. On 11 August 2010 the applicant lodged a further request for the remaining dates. On 12 November 2010 the District Court, jointly ruling on both requests, imposed an overall administrative fine of EUR 300 on the mother for having contravened six times the decision on contact rights. Even though the mother paid this sum in June 2011, none of the supervised visits took place as scheduled.",
"105. Under the general principles set out above, it is the Court ’ s task to determine whether the domestic authorities took all necessary steps to facilitate the execution of the contact order of 12 May 2010 as could reasonably be demanded in the special circumstances of this case. The Court notes, at the outset, that the District Court ’ s decision contains no information on the financial situation of the mother. Nevertheless, it cannot but observe that the overall administrative fine of EUR 300 appears to be rather low, given that the pertinent provisions allowed for the imposition of a fine of up to EUR 25,000 for each individual case of non-compliance. It is thus doubtful whether this sanction could reasonably have been expected to have a coercive effect on the child ’ s mother, who had persistently prevented contact between the applicant and his son. The Court takes note of the District Court ’ s reasoning that even though the child ’ s mother was accountable for the failed contact, her personal responsibility proved to be minor, as the demands on her educational capabilities had been high and as she had been obliged “not only to reconsider her own stance on the problems within a few weeks, but also to change the child ’ s established pattern of behaviour” (see paragraph 30, above).",
"106. The Court observes in this context that the parties had agreed to institute supervised contact as early as 2005 and that the Frankfurt/Main District Court had first ordered such contact on 22 May 2007 (see Kuppinger, cited above, §§ 7, 16). Having regard to the fact that the mother must have been made aware during the previous court proceedings of her general obligation to allow the applicant contact to his son, it is difficult to follow the District ’ s Court ’ s reasoning that the mother had to reconsider her stance on the problems “within a few weeks”. The Court further observes that the decision contains no information on whether the mother had at least attempted to meet her obligations under the contact order by encouraging the child to meet the applicant. The Court finally observes that the Frankfurt Court of Appeal, in its decision given on 17 September 2014 (see paragraph 80, above), conceded that the administrative fine imposed on the mother might have been insufficient.",
"107. Even if it is possible that more severe sanctions would not have changed the mother ’ s general stance towards the applicant ’ s contact rights, this did not dispense the domestic authorities from their obligation to undertake all appropriate steps to facilitate contact. Finally, the Court is not convinced by the Government ’ s argument that it was unlikely that the situation would repeat itself, given that the family court had, in the meantime, set up contact custodianship. Even if a contact custodian had more effective means at his disposal than a mere supervisor, it is hardly conceivable that he would be able to achieve his task of implementing contact rights without a certain degree of cooperation on the mother ’ s side.",
"108. With regard to the swiftness of the enforcement proceedings, the Court observes that the proceedings lasted more than ten months from 21 July 2010, when the applicant lodged his first request to impose an administrative fine, until 1 June 2011, when the overall fine was paid. The Court notes that the District Court did not give a separate decision on the applicant ’ s first request, but awaited the submissions in reply to the subsequent requests before giving a decision. Given the special urgency of the subject matter, the Court is not convinced that the joinder, which caused a delay of several weeks, best served the interest of the efficiency of the proceedings. Furthermore, a delay of approximately one month occurred when the District Court awaited the return of the main case file from the Court of Appeal, even though the main proceedings before that Court had already been terminated six weeks before. It follows that this delay could have been avoided by a swifter dispatch of the case file.",
"109. Having regard to the facts of the case, including the passage of time, the best interests of the child, the criteria laid down in its own case ‑ law and the parties ’ submissions, the Court, notwithstanding the State ’ s margin of appreciation, concludes that the German authorities have failed to make adequate and effective efforts to execute the contact order of 12 May 2010.",
"110. There has accordingly been a violation of Article 8 of the Convention.",
"2. Execution of the decision of 1 September 2010",
"( a ) The applicant ’ s submissions",
"111. According to the applicant, the implementation of contact custodianship had failed because of the custodian ’ s inappropriate and unprofessional behaviour. The proceedings on the discharge of the contact custodian had been inefficient and excessively long. The District Court had failed to take the necessary steps of contacting potential custodians who had previously expressed their readiness to accept this task. Furthermore, the District Court had failed to comply with its obligation under section 155 of the Act on Procedure in Family Matters to schedule a hearing within a month of receipt of the applicant ’ s request. Accordingly, the District Court could have taken a decision in 2010.",
"112. The applicant further submitted that the refusal to impose further administrative fines was arbitrary and did not comply with the domestic law.",
"(b) The Government ’ s submissions",
"113. The Government submitted that the domestic courts did not fail to comply with their obligations under Article 8 of the Convention in respect of the proceedings on the applicant ’ s request to discharge the contact custodian and on his request for further administrative fines to be imposed on the mother.",
"114. The implementation of contact custodianship had failed on account of an open dispute between the applicant and the custodian. The proceedings on the discharge of the custodian had not been excessively long. The District Court ’ s attempts to organise a replacement for the custodian had ultimately failed due to a dispute between the applicant and the potential contact custodians. As the contact custodianship ended on 31 March 2011, the decision of 29 June 2011 was of a purely declaratory nature. The Government pointed out in this context that non-compliance with section 155 of the Act on Procedure in Family Matters was not a decisive factor in the current proceedings, because this provision was merely a recommendation and did not stipulate swiftness at all costs. The decisive factor was always the best interest of the child.",
"115. The Government also submitted that the applicant ’ s further requests for administrative fines clearly lacked any prospect of success as the contact order given on 1 September 2010 only provided for unsupervised contact following a preparatory phase of supervised contacts. It must thus have been clear for the applicant that the decision did not grant him the right to unsupervised contact without an initial phase of supervised contact. The Government further submitted that the proceedings were processed without any undue delay.",
"(c) The Court ’ s assessment",
"116. The Court observes, at the outset, that the applicant did not lodge an appeal and thus did not exhaust domestic remedies against the District Court ’ s decision of 26 August 2011 not to impose further administrative fines on the child ’ s mother. It follows that the Court is only called upon to examine the applicant ’ s Article 8 complaint with regard to the length issue.",
"117. The Court observes that the proceedings on the discharge of the contact custodian were instigated on 15 November 2010, when the applicant lodged his request, and were terminated on 29 June 2011, when the District Court established that contact custodianship had expired on 31 March 2011. The proceedings thus lasted seven months and two weeks before the District Court. The Court notes that, under the pertinent legislation, a contact custodian could only be dismissed if a new custodian was appointed at the same time. The Court further notes that the District Court made considerable efforts to find a contact custodian, which were ultimately to no avail. The proceedings on the applicant ’ s requests to impose further administrative fines lasted from 10 May 2011, when the applicant lodged his first request, and ended on 26 August 2011, when the District Court rejected the requests. Proceedings thus lasted three months and seventeen days. In the light of all circumstances of the case, the Court does not find this length of proceedings to be excessive.",
"118. In the light of these considerations, the Court cannot find that the conduct of the proceedings on the discharge of the contact custodian and on the applicant ’ s requests to impose further administrative fines violated the applicant ’ s rights under Article 8 of the Convention.",
"3. Proceedings on the review of contact regulations",
"(a) The Government ’ s submissions",
"119. The Government submitted that the length of the proceedings on the review of contact regulation was primarily caused by the applicant ’ s own conduct. While the applicant was free to make use of all procedural means available to him, the ensuing delays were not imputable to the domestic courts.",
"(b) The applicant ’ s submissions",
"120. The applicant contested that the length of the proceedings was imputable to him. The proceedings on the modification of contact rights were ineffective and lasted an excessively long time. In particular, the District Court had failed to summon other possible contact custodians after the agreement with Ms Z. had failed. The necessity to hear an expert opinion was caused by the excessive length of the prior proceedings and therefore also imputable to the domestic courts.",
"(c) The Court ’ s assessment",
"121. The Court notes that the proceedings on the review of contact regulations were instituted ex officio by the District Court on 11 February 2011 and were terminated before that court on 12 November 2013. The appeal proceedings were terminated by the decision given by the Frankfurt Court of Appeal on 17 September 2014. Therefore, the proceedings lasted two years and nine months before the first instance court and some ten months before the Court of Appeal. The Court observes that the applicant lodged two motions, and the defending party one motion, for bias against the District Court Judge, each of which caused a delay of several weeks. A further delay of almost five months was caused by the fact that the applicant rejected the court ‑ appointed expert on grounds of bias. While this rejection was ultimately successful, it has not been established that the grounds for the suspicion of bias lay within the sphere of the District Court or could have been known to the District Court prior to his appointment. Hearings were postponed twice upon the request of the applicant, who finally stated that he was unfit to appear in court. The Court further observes that the applicant did not appear at any of the hearings scheduled by the Court of Appeal and rejected the Chamber of the Court of Appeal for failure to comply with his request to postpone a hearing.",
"122. In the light of these facts, the Court cannot find that the length of the proceedings before the family courts, even though considerable, was due to the courts ’ lack of special diligence. In particular, the applicant ’ s alleged inability to take part in the scheduled hearings cannot be held imputable to the family courts. The Court concludes that it has not been established that the family courts have failed to comply with the procedural aspect of Article 8 of the Convention with regard to the proceedings instituted on 11 February 2011.",
"III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"123. The applicant also complained that the length of the court proceedings concerning contact rights had exceeded a reasonable time in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by a ... tribunal...”",
"124. The Court notes that, under the Remedy Act, the applicant was entitled to lodge a claim for just satisfaction, but failed to do so. However, he disputes the effectiveness of the Remedy Act. Referring to a judgment in which a Court of Appeal awarded an applicant monetary compensation amounting to EUR 1, 500 for the excessive length of contact proceedings lasting two years and eight months, and which had been confirmed by the Federal Court of Justice on 13 March 2014 (III ZR 91/13), the applicant submitted that the domestic courts had failed to take into account relevant case-law of the Court when assessing just satisfaction claims under the Remedy Act.",
"125. The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Eberhard and M., cited above, § 147 ).",
"126. The Court notes that the applicant had access to the claim for just satisfaction, which became available to him under the transitory provision of the Remedy Act upon its entry into force on 3 December 2011. The Court has previously found that the Remedy Act was in principle capable of providing adequate redress for the violation of the right to a trial within a reasonable time and that an applicant could be expected to make use of this remedy, even though it became available to him only after he had lodged his complaint with the Court ( see Taron, cited above, § § 40 -43 ). The Court considers that the applicant has not submitted any reason which would allow the conclusion that the just satisfaction claim would not have had a reasonable prospect of success if pursued by the applicant in respect of the alleged unreasonable length of the court proceedings. The mere allegation that one Court of Appeal, in a court decision confirmed by the Federal Court of Justice, may have failed to take into account relevant case-law of the Court when assessing the amount of damages to be awarded under the Remedy Act, is not sufficient to call into question the general effectiveness of the legal remedy as a whole.",
"127. This part of the application must thus be rejected for non ‑ exhaustion of domestic remedies in accordance with Article 3 5 §§ 1 and 4 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION",
"128. The applicant complained of a violation of his right to an effective remedy against the excessive length of the proceedings before the family courts. He relied on Article 13 in conjunction with Article 8 of the Convention.",
"129. The Government contested that argument.",
"A. Admissibility",
"130. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The Government ’ s submissions",
"131. Referring to the Court ’ s decision in the case of Taron ( cited above, §§ 39-45 ), the Government submitted that the Court had already established that the Remedy Act was generally suited to provide effective redress against excessive length of proceedings. While the evaluation of the domestic remedy, which had been in force for two years, was still pending, the existing case-law showed that the new remedy was functioning well in practice. This had been confirmed by the final resolution issued by the Committee of Ministers in the Rumpf case ( see Rumpf v. Germany, no. 46344/06, 2 September 2010 and Resolution CM/ResDH(2013)244 ).",
"132. According to the Government, the new legal remedy was effective also in cases concerning contact with children, as it had a general preventive effect besides offering monetary redress. The two - stage legal remedy available under the amended Courts Constitution Act had a general, preventive effect by virtue of its very existence. In addition, the instrument of an objection to delay had a warning function, since it pointed out to the trial court which proceedings were already protracted from an applicant ’ s point of view and thus allowed that court to expedite the proceedings. Furthermore, the compensation claim under the Remedy Act also had a preventive function, as it could already be lodged while proceedings were pending. Finally, the plaintiff had the option of obtaining monetary compensation for any disadvantages resulting from a violation of the right to a decision within a reasonable time.",
"133. The Government observed that the proceedings which were the subject matter of the instant complaint had been pending since May 2010 and thus fell under the transitional provision of Article 23 of the Remedy Act. Accordingly, the objection to delay was not yet available at that stage of the proceedings. However, the draft legislation had already been published at that time; furthermore, especially in regard to family law, the appeal courts had already generally recognised the legal institution (which was not regulated by law) of a complaint on account of inactivity in order to avert the danger of creating irreversible effects. Finally, the applicant himself had lodged several objections to delay during the proceedings at hand.",
"2. The applicant ’ s submissions",
"134. According to the applicant, the Remedy Act did not comply with the prerequisites laid down in the Court ’ s case-law. The Court had held in several judgments that a purely compensatory remedy was not sufficient to address violations resulting from the length of proceedings in which the conduct of the proceedings may have an impact on the applicant ’ s family life (the applicant referred to the Court ’ s judgments in the cases of Macready v. the Czech Republic, nos. 4824/06 and 15512/08, 22 April 2010 and Bergmann v. the Czech Republic, no. 8857/08, 27 October 2011 ).",
"135. The Remedy Act was not yet in force when the proceedings at issue were instituted and the applicant would only have been in a position to lodge a compensation claim under its transitory provisions. However, after consideration, the applicant had abstained from making use of this possibility also in view of its lack of effectiveness. The solution of compensation provided by the Remedy Act did not satisfy the requirements of an effective preventive remedy, because it did not lead to an order of binding measures to expedite proceedings. Neither did the objection to delay fulfil these requirements, as it constituted neither a legal claim for a declaration of a violation of the Convention nor a right to effective redress, as the law did not provide for a possibility of an effective appeal.",
"3. The Court ’ s assessment",
"(a) General principles",
"136. The Court reiterates that Article 13 of the Convention gives direct expression to the States ’ obligation, enshrined in Article 1 of the Convention, to protect human rights first and foremost within their own legal system. It therefore requires that the States provide a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). In the present case, having regard to its conclusion with regard to the conduct of the proceedings before the family courts (compare, in particular, paragraph 1 0 9, above), the Court considers that the applicant had an arguable claim of a violation of Article 8 relating to the conduct of the proceedings on contact rights.",
"137. The Court further reiterates its case-law according to which remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy therefore fulfils these criteria if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 ‑ VIII; and Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006 ‑ VII ). However, in proceedings in which the length of the proceedings has a clear impact on the applicant ’ s family life (and which thus fall to be examined under Article 8 of the Convention) the Court has considered that a more rigid approach is called for, which obliges the States to put into place a remedy which is at the same time preventive and compensatory (see Macready, cited above, § 48; and Bergmann, cited above, §§ 45-46 ). The Court has observed in this respect that the State ’ s positive obligation to take appropriate measures to ensure the applicant ’ s right to respect for family life risked becoming illusory if the interested parties only had at their disposal a compensatory remedy, which could only lead to an a posteriori award for monetary compensation (see Macready, ibid. ).",
"(b) Application to the instant case",
"138. Turning to the circumstances of the instant case, the Court observes that the proceedings at issue concerned the applicant ’ s contact rights with his young child. It is thus clear that the case falls within the category of cases which risk being predetermined by their length. Under the principles set out above, it thus has to be determined whether German law provided, at the relevant time, a remedy against the length of proceedings which did not only offer monetary redress, but which was also effective to expedite proceedings before the family courts.",
"(i) The Remedy Act",
"139. With regard to the effectiveness of the remedy introduced by the Remedy Act, the Court observes at the outset that this remedy only became available in December 2011 and thus at a time when the instant proceedings had already continued for one and a half year and were pending before the Court. The applicant chose not to avail himself of the possibility to request monetary compensation under its transitory provisions. The Court reiterates that it has previously found that there were no reasons to believe that the new remedy would not afford an applicant an opportunity to obtain adequate and sufficient compensation for his grievances (see Taron, cited above, § 40 ). It has not, however, examined the question of whether the Remedy Act could also be regarded as effectively expediting the proceedings if the right to respect for family life otherwise risked becoming illusory.",
"140. With regard to the warning function attributed by the respondent Government to the objection to delay, the Court accepts that such an objection may, in a specific case, encourage a trial court to expedite proceedings. It notes, however, that the Remedy Act does not attach any sanction to the failure to comply other than the possibility to lodge a compensation claim. The Court is, furthermore, not convinced that the possibility to lodge a compensation claim can be regarded as having a sufficient expediting effect on pending proceedings in cases concerning contact rights to young children, if this is necessary to prevent a violation of the right to respect for family life.",
"141. In the light of these considerations, the Court is not convinced that the provisions introduced by the Remedy Act meet the specific requirements for a legal remedy designed to meet the State ’ s positive obligations under Article 8 of the Convention in proceedings relating to a parent ’ s contact rights with his young child.",
"(ii) The complaint alleging inaction",
"142. The Court has previously considered that the complaint alleging inaction, which did not have a statutory basis in domestic law, but had been accepted by a number of appeal courts prior to the entry into force of the Remedy Act, could not be regarded an effective remedy against the excessive length of civil proceedings, having regard to the uncertainty about the admissibility criteria for such a complaint and to its practical effect on the specific proceedings (see Sürmeli, cited above, §§ 110 ‑ 112). The Court observes that the Government have not put forward any arguments which would allow a different conclusion to be drawn in the instant case. It follows that the complaint alleging inaction cannot be regarded as an effective remedy in this specific case.",
"(iii) Section 155 of the Act on Procedure in Family Matters",
"143. The Court finally observes that the Government submitted in a different context that section 155 of the Act on Procedure in Family Matters, which obliging family courts to treat contact proceedings as a priority and expediently, was merely a recommendation and did not stipulate swiftness “ at all costs” (see paragraph 114, above). They did not allege that this provision could serve as an effective remedy within the meaning of Article 13 of the Convention. The Court appreciates that this provision may encourage the courts to comply with their duty to exercise special diligence in contact proceedings. However, in the absence of any statutory sanction for non ‑ compliance, the Court agrees that this tool cannot be regarded as an effective preventive remedy against the excessive length of contact proceedings.",
"144. Accordingly, the applicant did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings on his contact rights.",
"145. There has therefore been a violation of Article 13 in conjunction with Article 8 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"146. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"147. The applicant claimed the sum of at least EUR 30,000 in respect of non-pecuniary damage. The applicant submitted that he had suffered non-pecuniary damage because of the excessively long and ineffective proceedings on contact rights which had been pending before the family courts since 2005 and which led to his permanent separation from his child. The applicant considered as an aggravating factor that the Court ’ s judgment of 21 April 2011 (see Kuppinger, cited above) did not have an enduring effect on the processing of the proceedings by the family court.",
"148. The Government pointed out that the excessive length of the original proceedings had already been considered by the Court in its previous judgment (see Kuppinger, cited above). In the present case, only the proceedings on review of contact regulations were of an exceptional length which was, however, still justified under the circumstances of this particular case. By way of an alternative, the Government drew attention to the fact that the Court had previously decided not to award any compensation for non-pecuniary damage in a comparable case (the Government referred to Berlin v. Luxembourg, no. 44978/98, § 72, 15 July 2003 ).",
"149. The Court notes that the applicant has been awarded EUR 5,200 in respect of non ‑ pecuniary damage for the length of the proceedings between the years 2005 and 2010 (see Kuppinger, cited above, § 61). Ruling on an equitable basis, it awards the applicant EUR 1 5, 000 in respect of non-pecuniary damage for the violation of his rights under Articles 8 and 13 of the Convention in the instant case.",
"B. Costs and expenses",
"150. The applicant also claimed a total of EUR 4,524.61 for costs and expenses incurred before the domestic courts (including costs for the proceedings before the Federal Constitutional Court in the amount of EUR 2,032.40) and EUR 4,404.13 for those incurred before the Court. He submitted that the child ’ s mother had failed to reimburse him the costs of the first administrative fine proceedings.",
"151. The Government affirmed that the applicant had failed to submit fee agreements justifying the bills relating to the costs of the proceedings before the Court and before the Federal Constitutional Court. They further submitted that the costs before the family courts were not incurred in an attempt to redress the violation of Article 8. Furthermore, the applicant had an enforceable claim against the mother for reimbursement of the costs of the first administrative fine proceedings.",
"152. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in an attempt to redress the violation of the Convention rights and are reasonable as to quantum. The Court observes that it has found a violation of Article 8 of the Convention only with respect to the first administrative fine proceedings and that the applicant has obtained an enforceable title against the child ’ s mother for reimbursement of the costs incurred by these proceedings. In the light of this, the Court considers it reasonable to award the sum of EUR 2,032.40 for costs and expenses in the domestic proceedings and of EUR 4,404.13 for the proceedings before the Court.",
"C. Default interest",
"153. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
82 | Kacper Nowakowski v. Poland | 10 January 2017 | This case concerned the contact rights of a deaf and mute father with his son, who also has a hearing impairment. The applicant complained in particular about the dismissal of his request to extend contact with his son. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that, even though the parents’ strained relationship had admittedly not made the Polish courts’ task an easy one when deciding on contact rights, they should nonetheless have taken measures to reconcile the parties’ conflicting interests, keeping in mind that the child’s interests were paramount. The courts had notably not properly examined the possibilities which existed under domestic legislation of facilitating the broadening of contact between the applicant and his son. Moreover, they had failed to envisage measures more adapted to the applicant’s disability, such as obtaining expert evidence from specialists familiar with the problems faced by those with hearing impairments. Indeed, the courts had relied on expert reports which had focused on the communication barrier between father and son instead of reflecting on the possible means of overcoming it. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1976 and lives in Białystok.",
"A. Background facts",
"6. The applicant is deaf and mute. He uses sign language to communicate with other people.",
"7. The applicant and A.N. married on 20 August 2005. A.N. suffers from a hearing impairment and has had a hearing implant fitted. She communicates both orally and through sign language.",
"8. The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffers from a hearing impairment. In February 2007 the applicant and his wife separated. On 11 June 2007 A.N. filed a petition for divorce.",
"9. In the course of the divorce proceedings, on 19 July 2007 the Białystok Regional Court issued an interim decision on the applicant ’ s contact with his son. Under that decision, the applicant could visit his son every Tuesday and Thursday between 4 p.m. and 6 p.m. and every Sunday between 2 p.m. and 5 p.m. at the child ’ s place of residence and without the presence of any third parties.",
"10. The court ordered experts from the Białystok office of the Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ‑ “ the RODK”) to prepare an opinion on the suitable form and frequency of the applicant ’ s contact with his son. In the course of his interview with the experts, the applicant underlined his commitment to maintaining contact with the child, without giving any details. The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of 19 July 2007. The last contact had occurred on 25 August 2007.",
"11. In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial. In the view of the experts, taking into account the necessity to ensure the proper development of the child, contact between the applicant and the child should take place four times a month and last two hours on each occasion.",
"12. On 15 November 2007 the Białystok Regional Court granted a decree of divorce without ascribing blame for the breakdown of the marriage. In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It further ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. until 6 p.m. and on every fourth Sunday of each month from 11 a.m. until 1 p.m. Contact should take place at the mother ’ s home in her discreet presence but in the absence of third parties. The applicant was further ordered to pay child maintenance.",
"13. It appears that neither of the parties appealed against the judgment, which consequently became final on 6 December 2007.",
"B. Proceedings concerning a change in contact arrangements",
"14. In August 2011 the applicant filed an application with the Białystok District Court for a change to his contact arrangements. He asked the court to be allowed to have contact with his son on every second and fourth weekend of each month from 3 p.m. on Friday until 6 p.m. on Sunday, away from the mother ’ s home. He also asked to be allowed to see his son for some time over the Christmas and Easter periods and to spend with him half of the winter holidays and half of the summer school holidays. The applicant argued that the child had already reached the age of five and needed increased contact with his father in order to strengthen their ties.",
"15. The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He submitted that his son was happy to spend time with him and to play with him. The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family. It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly. For example, she refused to pass on oral messages from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him.",
"16. The mother submitted that the applicant had remained passive during his meeting with S.N. and that she had not obstructed those meetings. In her view, S.N. did not have any emotional ties with his father and did not need contact with him. Further, the applicant would be unable to properly care for S.N. The mother lived together with her parents and her son.",
"17. On 4 November 2011 a court guardian submitted a report to the court. According to that report, the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses. He had not seen his son since 12 October 2011. However, the mother of the applicant had been visiting her grandson regularly.",
"18. On 15 March 2012 the applicant applied for an interim decision and asked for the right to have contact with his son during the second day of the Easter holidays, from 10 a.m. to 5 p.m., and to take him away from his place of residence. On 23 March 2012 the Białystok District Court issued an interim decision allowing the applicant to visit his son during the second day of the Easter holidays from 11 a.m. to 1 p.m. at the child ’ s place of residence.",
"19. On 30 April 2012 the RODK issued an opinion commissioned by the District Court. It had been prepared by a psychologist, an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong – indeed, the mother had a tendency to be overprotective. The child ’ s ties with the father were superficial and weak. The child recognised the applicant as his father but did not consider him a part of his family. The father ’ s ties with the child were positive, but founded on limited experience and high expectations. These ties were also affected by the communication difficulties between them. The experts further noted that the conflict between the parents impeded their cooperation with regard to the child. They suggested that the parents be counselled by a specialist with a view to their being taught how to accept each other as a parent.",
"20. The experts opined that an increase in contact, as requested by the applicant, was not advisable, on account of the limited level of communication between him and the child, the child ’ s age and history, and the strength of the child ’ s ties with the mother and maternal grandparents. They recommended, however, that contact should also take place outside the mother ’ s home ( at playgrounds, during walks) but in her presence. The mother should cooperate with the father and support him in making his contact with the child more diverse. The experts noted that the ability of the applicant to care independently for his son was considerably limited. In their view, the interests of the child required that the parents cooperate with each other, despite the communication problems. The experts added that the mother should be more proactive in this regard but that the father should not contest the mother ’ s decisions concerning the child.",
"21. The applicant contested the experts ’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people. He claimed that their finding that contact could not take place without the presence of the mother on account of his (that is to say the applicant ’ s) disability amounted to discrimination. The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy.",
"22. The District Court heard evidence from the RODK experts. The psychologist, G.H., admitted that the RODK did not have specialised methods of examining deaf people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact. She noted that the child was well-developed and rehabilitated ( zrehabilitowanym ). The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them. Such circumstances created a particular difficulty in the case of a child with a hearing impairment. The psychologist observed that the applicant ’ s disability also constituted an objective obstacle. In her opinion, contact should take place two to three times a month.",
"23. The court dismissed the applicant ’ s request for a second expert opinion since the earlier opinion was complete and comprehensive.",
"24. The court also heard the parties and witnesses (family members). It further took into account information submitted by a court guardian after visiting the applicant ’ s and the mother ’ s respective homes, together with relevant documentary evidence.",
"25. On 9 August 2012 the Białystok District Court dismissed the applicant ’ s application for a change to the contact arrangements.",
"26. The court established that the parents of S.N. remained in conflict and could not reach an agreement regarding the child ’ s contact with the father. Since September 2009 the child had attended a nursery school with an integration unit, where he had remained under the supervision of a specialist in deaf education, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. The child required specialised medical care and followed a rehabilitation programme. He was certified as having a second - degree disability.",
"27. Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change to the contact arrangements would not be in the child ’ s best interests. It was true that the first decision in respect of contact had been given five years previously, when S.N. had been a baby and when the presence of his mother during contact had been justified by the child ’ s age. However, the age of the child was not the only element to consider. Other relevant elements were the specifics of the child ’ s development, his state of health, his disability, the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents. The court found that these elements still justified the discreet presence of the mother and at her home during the applicant ’ s contact visits. It noted that the requested change to the contact arrangements would be too far-reaching, since the applicant wanted to see his son more often, outside S. N. ’ s place of residence and without the mother being present. The court observed that except for the first two months of the child ’ s life the applicant had not lived with him or cared for him. The applicant admitted that he had not always kept to scheduled visits. Sometimes the reasons for this had been beyond his control (health problems or evening school commitments) and sometimes contact had been obstructed by the mother. However, in consequence, his limited and irregular involvement in the child ’ s life had adversely influenced the emotional ties between the father and the son.",
"28. The court underlined that the applicant had not been fully availing himself of his rights to contact his son, as granted by the divorce judgment. Nonetheless, once their ties were strengthened and the applicant made full use of the rights already granted to him, it would be possible to extend contact.",
"29. The court also found that it could not disregard the communication problems between the applicant and his son. It did not agree with the applicant that this constituted a discriminatory measure against him; rather, it constituted an objective and independent factor that hampered his communication with the child. The applicant, irrespective of his own and his son ’ s disability, had an incontestable right to contact with his son. However, the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only orally, so communication difficulties naturally arose. For this reason, it was still justifiable that the mother, who was able both to use sign language and communicate orally, should be present during the applicant ’ s visits. The mother ’ s presence, which provided the child with a sense of security, could also help him to relax during his meetings with the father. The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son. The issue was not only about interpreting between sign language and speech but also about ensuring security and stability, which could only be provided by the mother. The applicant ’ s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother.",
"30. The court underlined that the applicant ’ s contact with his son should first and foremost ensure the security and stability of the child. The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent his time would certainly jeopardise the child ’ s well-being and damage his sense of security. The court dismissed the applicant ’ s argument that the child spent most of his day in a nursery school (that is to say outside his home and without his mother ), so he could easily stay at the applicant ’ s father ’ s home. It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place.",
"31. The court observed that the child ’ s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son.",
"32. The fact that the child had been paying short unsupervised visits to a neighbour of the mother ’ s family did not support the applicant ’ s argument either. The court noted that the neighbour was a familiar person to the child, since he had been regularly visiting the child ’ s family. In addition, the unsupervised visits to the neighbour ’ s flat did not last longer than one hour.",
"33. Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo family therapy. It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent. However, the only suitable place for such therapy for persons with impaired hearing was the premises of a foundation ( fundacja ) attached to the nursery school attended by the child. The mother stated that she already attended a parent support group there and the applicant declared that he could do the same. In these circumstances, the court found that there was no need for its intervention.",
"34. The applicant lodged an appeal with the Białystok Regional Court. He argued that the District Court had failed to respect the principle of non-discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son. He invoked Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court had erred in holding that the child ’ s interests did not justify a change to contact arrangements. The expert opinion indicated that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child. In addition, according to some witnesses, the contact took place in the presence of third parties.",
"35. The applicant contested the lower court ’ s finding that the child ’ s paternal grandmother was a stranger to him; he argued that the child would not be exposed to stress in the event of contact without the mother ’ s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to order a supplementary expert opinion.",
"36. On 23 November 2012 the Białystok Regional Court dismissed the applicant ’ s appeal. It found that the lower ’ s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified.",
"37. The Regional Court noted that the contact arrangements could be amended if the interests of the child so required (Article 113 5 of the Family Code). It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact. It stressed that the priority of the court in such cases was to take into account the interests of the child, not the interests of either of his or her parents.",
"38. It further underlined that the presence of the mother during visits was necessary in order to ensure the child ’ s sense of security since the mother was the primary carer, with strong ties to the child. The paternal grandmother could not provide the same sense of security. In addition, the mother ’ s presence would solve the problem of communication between the applicant and the child. The Regional Court did not agree with the applicant that the lower court ’ s taking into account the issue of communication barrier had amounted to discrimination against him. The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded, given that the interests of the child were of primary consideration, overriding the individual interests of the parents. The Regional Court stressed that this constituted an objective obstacle, not a form of discrimination against the applicant.",
"C. Proceedings concerning parental authority",
"39. In July 2011 A.N. brought an action in the Białystok District Court for an order limiting the scope of the applicant ’ s parental authority over S.N. to those issues that concerned their son ’ s education. She submitted that the applicant had refused to give his consent to an identity document being issued for the child.",
"40. In October 201 1 the applicant brought a counteraction seeking an order to compel A.N. to undergo family therapy. He argued that A.N. was acting to the child ’ s detriment by refusing to cooperate with the applicant in matters concerning the child. She also humiliated and insulted the applicant in the child ’ s presence and undermined his authority.",
"41. On 2 August 2012 the Białystok District Court restricted the applicant ’ s parental authority over S.N. to issues concerning his education. It dismissed the applicant ’ s counteraction.",
"42. The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings. The experts concluded that the joint exercise of parental authority was practically impossible. The reason for this was the permanent conflict between the parents, as well as the communication difficulties. The experts recommended that both parents undergo therapy with a view to developing their parenting skills. They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate. In the view of the experts, the mother of the child properly exercised her parental authority, in particular with respect to the child ’ s needs, the necessity of treatment, and the development of the child ’ s social skills.",
"43. Having regard to the evidence, the court found that it was justifiable to restrict the applicant ’ s parental authority and limit it only to matters concerning the child ’ s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority. The applicant was not to be solely blamed for this situation. Furthermore, communication with the applicant was limited on account of his disability; however, the mother had been aware of this fact since the beginning of their relationship. The court further took into account the fact that the child was being raised by the mother, the parents lived apart, and there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child ’ s health.",
"The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father. The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child ’ s medical treatment since these were sometimes urgent – therefore, it was the mother, with whom the child lived, who should decide on them.",
"44. With regard to the applicant ’ s request for the mother to be obliged to undergo family therapy, the court did not find this justified. It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy. It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority and that the child ’ s welfare was not endangered.",
"45. The applicant appealed.",
"46. On 23 November 2012 the Białystok Regional Court dismissed the applicant ’ s appeal. It underlined that the court of first instance had comprehensively assessed the evidence in the case. In the view of the Regional Court, the limitation of the applicant ’ s parental authority was in the interests of the child. It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant.",
"IV. COUNCIL OF EUROPE MATERIALS",
"51. Recommendation No. R (98) 1 of the Council of Europe ’ s Committee of Ministers to member States on the Family Mediation, adopted on 21 January 1998, recognised the growing number of family disputes, particularly those resulting from separation or divorce. Noting the detrimental consequences of conflict for families, the texts recommended that the member States introduce or promote family mediation or, where necessary, strengthen existing family mediation. In accordance with paragraph 7 of the Recommendation, the use of family mediation could “improve communication between members of the family, reduce conflict between parties in dispute, produce an amicable settlement, provide continuity of personal contacts between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and States ” (see also the European Commission for the Efficiency of Justice ’ s Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters ( CEPEJ (2007)14 ) )."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Constitution of the Republic of Poland",
"47. The relevant articles of the Constitution provide as follows :",
"“ Article 47.",
"Everyone shall have the right to legal protection of his private and family life ...",
"Article 69.",
"Public authorities shall provide, in accordance with statute, assistance to disabled persons to ensure their subsistence, adaptation to work and social communication.”",
"B. Family and Custody Code",
"48. The relevant part of the Family and Custody Code of 1964, as in force at the material time, reads:",
"“ Article 113.",
"§ 1. Regardless of [who exercises] parental authority, the parents and their child have the right and obligation to maintain contact with each other.",
"§ 2. Contact with the child will include, in particular, spending time with the child (visits, meetings, taking the child outside of his or her place of residence) and direct communication, maintaining correspondence, and using other means of distance communication, including electronic communications.",
"Art. 113 1.",
"§ 1. If the child lives permanently with one parent, the manner of the other parent maintaining contact with the child shall be determined by the parents jointly, having regard to the welfare of the child and taking into account his or her reasonable wishes; in the absence of an agreement [between the parents] the guardianship court shall decide.",
"§ 2. ...",
"Article 113 2.",
"§ 1. If the welfare of the child so requires, the guardianship court shall limit contact between [either or both] parents and the child.",
"§ 2. The guardianship court may, in particular:",
"1) prohibit meetings with the child,",
"2) prohibit taking the child outside of his or her place of residence,",
"3) allow a meeting with a child only in the presence of the other parent or foster parent, a guardian, or another person designated by the court,",
"4) limit contact to specific kinds of distance communication,",
"5) prohibit distance communication.",
"Article 113 4.",
"When deciding on the matter of contact with the child, the guardianship court may compel the parents to undertake a specific course of action; in particular, [it may] refer them to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family, at the same time indicating the manner of overseeing compliance with the orders issued.",
"Article 113 5.",
"The guardianship court may change its decision on contact, if the welfare of the child so demands .”",
"III. INTERNATIONAL LAW INSTRUMENTS",
"A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)",
"49. The relevant provisions of the Convention on the Rights of Persons with Disabilities, which came into force in respect of Poland on 25 October 2012, read as follows:",
"Article 5 - Equality and non-discrimination",
"“1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.",
"2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.",
"3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.",
"4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”",
"Article 23 - Respect for home and the family",
"“1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:",
"a. The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;",
"b. The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;",
"c. Persons with disabilities, including children, retain their fertility on an equal basis with others.",
"2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child ‑ rearing responsibilities.",
"...",
"4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. ... ”",
"B. Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (Resolution 44/25)",
"50. The relevant provisions of the Convention on the Rights of the Child, which came into force in respect of Poland on 7 July 1991, read as follows:",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"...”",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child...",
"...",
"3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests. ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"52. The applicant complained that the dismissal of his application for an extension of contact with his son had infringed his right to respect for his family life. He alleged that the courts had offered him no assistance in facilitating contact with his son. The applicant relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"53. The Government maintained that the application was inadmissible on account of the applicant ’ s lack of victim status. They underlined that the dismissal of the applicant ’ s request for an extension of contact did not affect contact arrangements already in place. The applicant had not visited his son for one year after the divorce judgment and, when he had renewed contact, his visits had not been as frequent as had been possible under the divorce judgment.",
"54. The applicant disagreed with the Government ’ s submission. It was true that after the divorce he had not made use of all the possibilities for contact with his son, but he underlined that he had been hospitalised during that period. There had been problems with diagnosing the applicant ’ s medical problems and it had been suspected that he might have been suffering from some infectious disease. During the period in question, the applicant had not visited his son because he had not wanted to transmit a disease to him. Eventually, the applicant had been diagnosed with pernicious anaemia ( which had been caused by stress related to the divorce ) and Hashimoto ’ s disease. The applicant was also suffering from depression, for which he had started undergoing therapy. Accordingly, the applicant could not be blamed for missing visits during 2007 and 2008.",
"55. The Court considers that the Government ’ s objection regarding the lack of victim status is closely linked to the merits of the complaint under Article 8. It therefore joins this objection to the merits.",
"56. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 3 5 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The applicant ’ s submissions",
"57. The applicant submitted that his son, born in 2006, had been only eleven months old on the date of the divorce judgment. The applicant did not question that an infant in the first months of his life should reside with the mother. However, with the passage of time, the child ’ s needs had changed and for this reason the applicant had filed his motion for an extension of contact in August 2011. His son had started his pre - school education and he did not require the constant presence of his mother. In the applicant ’ s view, this was the right moment to have contact with his son in places other than at the mother ’ s home.",
"58. The applicant agreed that the interests of the child were of primary importance and should prevail over the interests of the parents. However, in order to ensure S.N. ’ s proper development, the child should have the possibility of seeing his father as often as possible. Many psychological studies had indicated that the marginalisation of the father ’ s role could have a negative influence on a child ’ s well-being and personal development. It was in the joint interests of the father and the child to have frequent and lasting contact in a diverse environment. The applicant alleged that the domestic courts had done nothing to promote the ties between him and his son and had deprived the applicant of the possibility of being a real parent to his son.",
"59. The applicant argued that the domestic courts had not taken into consideration many relevant factors of which they had been aware. For example, the mother and the maternal grandmother of S.N. had created an unfriendly environment when the applicant had been visiting his son. The applicant could visit his son only in a room of a surface area no greater than four square metres, even though S.N. had his own bedroom. The applicant wanted to spend more time with his son and felt a strong emotional connection with him. However, the conditions during his visits could not be described as neutral and did not guarantee freedom of communication between the applicant and his son. During visits, the applicant was treated dismissively. The mother and the maternal grandmother did not communicate with each other and with the child in sign language, so the applicant was excluded from any discussion and felt left out. In these conditions, it was really difficult to create closer ties with his son. Furthermore, the district court was aware that the mother was refusing to teach S.N. sign language and that the child consequently could not communicate with the applicant without the assistance of third parties.",
"60. The applicant disagreed that his disability and the resulting communication barrier were only one of many reasons for the dismissal of his application. It was the failure to adjust the contact arrangements to reflect the age of the child and the applicant ’ s hearing impairment which had created the communication barrier. The applicant submitted that all parties to the case ( that is to say the child and both parents) suffered from a hearing impairment. The mother had a problem with both oral and sign language communication and, contrary to the Government ’ s assertions, she was unable to serve as an interpreter between the applicant and his son.",
"61. The applicant submitted that during visits he had taught sign language to his son. This was necessary for establishing stronger ties between them and moulding the identity of the child, as well as helping the child to avoid problems with functioning in the society. In addition, the fact that the mother did not teach S.N. sign language for the purposes of enabling him to communicate with the applicant could not be seen as conducive to the child ’ s well-being.",
"62. The applicant ’ s disability could not be seen as an objective obstacle to his communication with S.N. When the applicant and A.N. had decided to establish a family and to have a child, they had taken into consideration their respective disabilities and all consequences that might arise therefrom. The actions of the mother – who had tried to eliminate the applicant from his son ’ s life by limiting their contact – had been irresponsible. The decision of the domestic courts should have furthered the child ’ s interests, namely that the child should have had the opportunity to spend time with his father and his father ’ s family in the applicant ’ s home. The applicant should have been given a chance to make his son feel secure in his presence.",
"63. The applicant maintained that the child ’ s best interests demanded a broader perspective than the one adopted by the domestic courts. It was essential to promote the ties between the applicant, his son and the applicant ’ s family in order to ensure the optimum development of the child in the light of the child ’ s disability. A deaf - mute father could understand better than anybody else what kind of obstacles his disabled son could encounter in his life. The applicant had the necessary experience and wanted to prepare his son for the challenges of adult life.",
"64. The applicant argued that the domestic courts had not taken any measures prescribed by the law or necessary for the well-being of the child which could have ended the conflict between the parents. On one hand, the domestic courts had made any future change in contact arrangements conditional upon the applicant developing stronger ties with his son, but on the other hand, they had not been proactive in encouraging this to happen. The mother had acted as an intermediary between the applicant and S.N., even though she had been in big conflict with the applicant. The conflict between the parents should not have been allowed to have an effect on the father ’ s contact with his child.",
"65. The domestic courts had treated the applicant as if he were intellectually or emotionally disabled. On account of his disability the applicant was, to some extent, isolated from society, but at the same time he was fully physically and mentally capable. The applicant studied, worked and was independent in all his life activities. He had graduated from a high school for adults and had obtained a qualification as a masseur. The domestic courts ’ finding that the applicant, on account of his hearing impairment, would not be able to ensure his son ’ s safety during contact outside the mother ’ s house was highly discriminatory. In conclusion, the applicant stated that the court decisions had violated his right to respect for his family life.",
"2. The Government ’ s submissions",
"66. The Government were convinced that the conduct of the domestic courts had not violated Article 8 of the Convention. They submitted that the applicant had agreed to a no-fault divorce and for years had not questioned the ruling concerning his contact with his son. In addition, the applicant had not visited his son for one year following the granting of the divorce, and in the subsequent period his contacts with his son had not been as regular as that provided for by the divorce judgement.",
"67. The Government underlined that the disability of the applicant and the communication barrier had not been the only or primary reasons for issuing the decision complained of by the applicant. The domestic courts had been guided by the child ’ s best interests and had taken into account various elements, such the child ’ s development, his state of health, and his strong ties with his mother and with his maternal grandparents.",
"68. The right to maintain contact was primarily the right of the child and not the right of the parents. In the present case, the interests of the applicant ’ s minor child, who was disabled like his father, should prevail. The Government underlined the necessity of continuing the child ’ s treatment and rehabilitation so as to ensure the best prospects for his development in the future. The domestic courts had taken into account the fact that children with impaired hearing were more exposed to stress related to changes in their routines, since they were not always able to understand external factors. Accordingly, the necessity of guaranteeing a sense of safety and stability was crucial for the child ’ s proper development which, in the domestic courts ’ view, could only be ensured by the child ’ s mother. Furthermore, the child ’ s mother could serve as an interpreter between the applicant and his son, since she used both oral and sign language.",
"69. In addition, the domestic courts underlined that the applicant ’ s right to contact with his son remained unquestioned. Nonetheless, objective obstacles, such as the disability of a parent or of a child, should be taken into account when deciding on the form of contact. The Government emphasised that once the applicant established ties with his son and overrode the communication barrier there would be prospects for extending his contact rights. However, the applicant should first familiarise the child with himself within the scope of the existing contact arrangements.",
"3. The Court ’ s assessment",
"(a) Relevant principles",
"70. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “ family life ” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down ( see, among other authorities, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000 ‑ VIII, and G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016).",
"71. Even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps ( see Hämäläinen v. Finland [GC], no. 37359/09, § 63, ECHR 2014). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State ’ s margin of appreciation (see, amongst other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005). When assessing the compliance of State authorities with their obligations under Article 8, it is necessary to take due account of the situation of all members of the family, as this provision guarantees protection to the whole family ( see Jeunesse v. the Netherlands [GC], no. 12738/10, § 117, 3 October 2014).",
"72. Where the measures in issue concern parental disputes over their children, however, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact questions, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, amongst other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130).",
"73. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. The Court has thus recognised that the authorities enjoy a margin of appreciation when deciding on custody matters. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of contact, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003 ‑ VIII).",
"74. In relation to the State ’ s obligation to take positive measures, the Court has held that in cases concerning the implementation of the contact rights of one of the parents, Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family; the State ’ s obligation is not one of result, but one of means (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 ‑ I; Cristescu v. Romania, no. 13589/07, § 61, 10 January 2012; Prizzia v. Hungary, no. 20255/12, § 35, 11 June 2013; P.K. v. Poland, no. 43123/10, § 86, 10 June 2014 ).",
"75. The Court recalls that there is currently a broad consensus ‑ including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents (see Sahin, cited above, § 66). The parents ’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (see Neulinger and Shuruk, cited above, § 134). Child interests dictate that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX).",
"(b) Application of the above principles to the present case",
"76. The Court observes that it was not disputed by the parties that the tie between the applicant and his son falls within the scope of “family life”, within the meaning of Article 8 of the Convention. It takes the same view.",
"77. The Court notes that under the divorce judgment of 15 November 2007 the applicant ’ s son, who was then eleven months old, was to reside with his mother, while the applicant was granted the right to see his son for two hours every week (see paragraph 12 above). At the time the applicant did not object to these arrangements. It was uncontested that the applicant had not fully availed himself of his contact rights owing, inter alia, to his health problems (see paragraphs 15 and 27- 28 above).",
"78. It appears that subsequently the applicant was keen on developing a closer relationship with his son. In August 2011 the applicant applied to the Białystok District Court for an extension of contact rights. He asked to be allowed to have contact on the second and fourth weekend of every month, as well as over part of Christmas, Easter and half of the main school holidays (see paragraph 14 above). The applicant wanted to increase contact with his son with a view to strengthening their ties, since his son had almost reached the age of five and had started his pre-school education.",
"79. The domestic courts refused the applicant ’ s request for an extension of contact. They found that the requested change would not be in the child ’ s best interests, having regard to a range of factors, such as the child ’ s disability and his heavy dependence on the mother. It was still necessary that the contact took place in the presence of the mother and at her home. It was considered that the mother ensured security and stability for the child. Furthermore, the requested change of contact arrangements was going too far, given the previously limited extent of the contact between the applicant and his son. In addition, the domestic courts had to pay some regard to the communication problems between the applicant and his son, given that the applicant used exclusively sign language while his son communicated only orally (see paragraphs 27-32 and 37-38 above).",
"80. The decisive question in the present case is whether the national authorities took all the appropriate steps that could reasonably have been demanded to facilitate contact between the applicant and his son ( see, Ignaccolo-Zenide, cited above, § 96; Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000 ‑ VIII; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003; and, mutatis mutandis, in respect of the steps required to enforce existing contact arrangements, P.K. v. Poland, cited above, § 87; Malec v. Poland, no. 28623/12, § 69, 28 June 2016; Cristescu, cited above, § 61; and Manuello and Nevi v. Italy, no. 107/10, § 52, 20 January 2015 ).",
"81. The Court underlines the importance of the child ’ s interests in preserving and developing his or her ties with his or her family, and in particular with his or her mother and father. It considers that, in principle, it is in the child ’ s best interests to maintain contact with both parents, in so far as practicable, on an equal footing, save for lawful limitations justified by considerations regarding the child ’ s best interests. The same rationale underpins Article 9 § 3 of the Convention on the Rights of the Child (see paragraphs 50 above).",
"82. The applicant ’ s right to see his son was never in dispute for the national courts and they all agreed that the applicant should be able to enjoy that right. However, the national courts should have also ensured that the applicant was able to effectively exercise his right to contact with his son ( Gluhaković v. Croatia, no. 21188/09, § 62, 12 April 2011, and Bondavalli v. Italy, no. 35532/12, § 81 in fine, 17 November 2015).",
"83. The Court considers that in its assessment of the reasons advanced by the domestic courts it must pay due regard to two specific features of the present case, namely (i ) the serious conflict between the parents, and (ii ) the disability of the applicant and of his son.",
"(i) Conflict between the parents",
"84. As can be seen from their decisions, both the Białystok District Court and the Białystok Regional Court were aware of the conflict between the parents. Their animosity surfaced in the parallel set of proceedings concerning the issue regarding the extent of the applicant ’ s parental authority (see paragraph 43 above). Further, the District Court noted in its judgment of 9 August 2012 that sometimes contact had been “ obstructed by the mother” (see paragraph 27 above). In addition, the experts commissioned by the District Court in respect of contact arrangements opined that the conflict between the parents impeded their cooperation with regard to the child. Those experts recommended that both parents be counselled by a specialist with a view to assisting them in accepting each other as parents (see paragraph 19 above).",
"85. However, the District Court did not heed the experts ’ recommendation, noting that the mother of the child had already attended a parent support group at the foundation attached to the specialised nursery school attended by the child and that the applicant had declared that he could join the same group. In those circumstances, the District Court found that it was not necessary to impose an obligation on the parents to undergo family therapy (see paragraph 33 above).",
"86. The Court observes that the Family and Custody Code contains a number of provisions pertaining to the regulation of contact between parents and a child (see paragraph 48 above). In particular, Article 113 4 of the Code provides that when deciding on the matter of contact with a child, the guardianship court may compel the parents to undertake a specific course of action. This provision indicates, in an non-exhaustive manner, that parents may be referred, for example, to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family. In addition, Article 113 2 § 2 (3) of the Family and Custody Code stipulates that the guardianship court may order that contact between a parent and a child should take place in the presence of, inter alia, a court guardian or another person designated by the court (see paragraph 48 above).",
"87. The Court notes that the domestic legislation provides for a range of instruments that can assist in alleviating conflict between parents and facilitate contacts between the non-custodial parent and the child. However, the domestic legislation makes no provision for mediation in family-law cases. The Court has already observed in a similar case concerning the enforcement of contact rights that civil mediation “ would have been desirable as a means of promoting cooperation between all parties to the case” (see Cengiz Kılıç v. Turkey, no. 16192/06, § 132 in fine, 6 December 2011). The Court referred in this respect to the Recommendation of the Committee of Ministers of the Council of Europe No. R (98) 1 on Family Mediation (see paragraph 51 above). The Recommendation provides, inter alia, that the use of family mediation can “ improve communication between members of the family, reduce conflict between parties in dispute, produce an amicable settlement, provide continuity of personal contact between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and States ”. In the Courts view, family mediation may be an efficient instrument for the implementation of rights protected under Article 8 of the Convention. However, it is not for the Court to assess in the instant case whether the existing instruments would have been sufficient or whether they should have been supplemented by means of legislative reform.",
"88. It is true that the RODK experts retained by the domestic courts stressed the need to develop a new pattern of contact. However, in the Court ’ s view, the domestic courts did not properly examine the possibility of resorting to different existing legal instruments which could have facilitated the broadening of contact between the applicant and his son.",
"89. The Court acknowledges that the task of domestic courts was rendered difficult by the strained relationship between the applicant and the child ’ s mother. However, the lack of cooperation between separated parents is not a circumstance which can, in and of itself, exempt the authorities from their positive obligations under Article 8. Rather, it imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ( see Zawadka, § 67; Bondavalli, § 82; G.B., § 98; and Malec, § 72, all cited above ).",
"(ii) The applicant ’ s disability and the communication barrier",
"90. The second, important factor in the reasoning of the domestic courts was the respective disabilities of the applicant and of his son, which created a communication barrier between them. The domestic courts viewed this as an objective obstacle to contact and not as a discriminatory measure against the applicant (see paragraphs 29 and 38 above). The Court concurs with the position of the domestic courts that regardless of his disability, the applicant had an incontestable right to contact with his son and that the communication issue should have been taken into account in regulating contact arrangements.",
"91. The question before the competent domestic authorities was which solution, given the circumstances of the case, would, on the one hand, take into account the child ’ s best interests and, on the other hand, permit the applicant to effectively develop a relationship with his child. The domestic courts ’ solution to the problem was to involve the child ’ s mother in the contact arrangements, since she was able to communicate both orally and in sign language. However, this solution ignored the existing animosity between the parents and the frequent complaints by the applicant that the mother had attempted to obstruct contact and to marginalise his role. The Court also notes in this context that the development of the relationship between the applicant and his child requires much more time than would be the case in a normal situation, given the difficulties in direct communication and the necessity of translation from and into sign language.",
"92. In the present case, the dismissal of the applicant ’ s application for extension of contact meant that the applicant kept his right to two hours of contact per week in the presence of the child ’ s mother. The Court accepts that the change to the contact arrangements sought by the applicant was possibly too far-reaching, having regard to the relatively limited prior contact between the applicant and his son. It might have been more appropriate to gradually increase the applicant ’ s contact with his son and to make it more diverse. Nonetheless, the Court finds that the maintenance of the same restricted contact arrangements was likely to entail, with the passage of time, a risk of the severance of the applicant ’ s relationship with his son (see, mutatis mutandis, Gluhaković, cited above, § 59).",
"93. In the Court ’ s view, the domestic courts should have envisaged additional measures, more adapted to the specific circumstances of the case ( see, mutatis mutandis, Gluhaković, cited above, where in regulating contact the authorities failed to take into account the father ’ s work schedule). Having regard to the specifics of the applicant ’ s situation and the nature of his disability, the authorities were required to implement particular measures that took due account of the applicant ’ s situation. The Court refers here to the second sentence of Article 23 § 2 of the Convention on the Rights of Persons with Disabilities, which provides that “State Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.” (see paragraph 49 above).",
"94. The Court further notes that the domestic courts failed to obtain expert evidence from specialists familiar with the problems faced by persons suffering from a hearing impairment. The experts stressed their limited competence in respect of persons suffering from a hearing impairment. Furthermore, the expert report relied on by the courts did not address possible means of overcoming the barriers resulting from the disability in question. The experts focused on the existence of barriers instead of reflecting on possible means of overcoming them.",
"95. The domestic courts ’ duty, in cases like the present one, is to address the issue of what steps can be taken to remove existing barriers and to facilitate contact between the child and the non-custodial parent. However, in the instant case they failed to consider any means that would have assisted the applicant in overcoming the barriers arising from his disability.",
"(iii) Conclusion",
"96. Having analysed the reasons advanced by the national authorities, the Court finds that they have not taken all appropriate steps that could reasonably be demanded with a view to facilitating the applicant ’ s contact with his son.",
"97. The Court concludes that, notwithstanding the State ’ s margin of appreciation, the authorities have failed to adequately secure the applicant ’ s right to respect for his family life as regards his right to effective contact with his son ( see Gluhaković, cited above, § 79).",
"98. In the light of the above, the Court dismisses the Government ’ s objection concerning the applicant ’ s lack of victim status.",
"99. There has accordingly been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION",
"100. The applicant complained that the courts had dismissed his application for increased contact with his son solely on the ground of his disability. He relied on Article 14 in conjunction with Article 8 of the Convention. Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"101. The applicant argued that the domestic courts had violated Article 14 read in conjunction with Article 8 of the Convention. He maintained that in a similar case involving a fully-bodied father the courts would have not set contact at two hours per visit and four visits a month and without the possibility of the child in question being taken to the father ’ s home. The domestic courts had not only failed to assist the applicant, who was disabled, but they had discriminated against him with their decisions. In cases involving non-disabled parties, the Polish courts underlined that the child should be aware that he or she had two parents and should have the possibility of spending time with both of them. In the applicant ’ s case, this right was refused to him.",
"102. The Government argued that the present case did not disclose a violation of Article 14 read in conjunction with Article 8 of the Convention. They submitted that that the domestic courts had underlined on numerous occasions that the applicant ’ s disability was not, per se, a motive for the dismissal of his application for an extension of contact. However, taking into account the best interests of the child, it could not go unnoticed that the aforementioned disability had given rise to a communication barrier between the applicant and his son, since the applicant used only sign language and the child communicated orally. Therefore, the form of contact should be adjusted to reflect the situation of the family.",
"103. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.",
"104. The Court has already found a violation of Article 8 of the Convention. In view of its analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention, read in conjunction with Article 8 of the Convention ( see, for a similar conclusion, Schneider v. Germany, no. 17080/07, § 108, 15 September 2011, or A.K. and L. v. Croatia, no. 37956/11, § 94, 8 January 2013).",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"105. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. He submitted that he had suffered serious emotional distress on account of the erroneous decisions of the national authorities. The impugned decisions had prevented the applicant from building a stronger relationship with his son. Furthermore, the applicant received no assistance from the domestic courts in respect of his situation. The domestic courts ’ decisions had also influenced the applicant ’ s mental health, since he was excluded from his son ’ s life and that made him feel helpless.",
"107. The Government submitted that the applicant ’ s claim was exorbitant. In the event that the Court established that there had been a violation of the Convention in the case, the Government submitted that the finding of a violation would constitute sufficient just satisfaction. In the alternative, they asked the Court to assess the issue of compensation on the basis of its case-law in respect of similar cases, with due regard to the national economic circumstances.",
"108. The Court considers that the applicant has suffered non-pecuniary damage as a result of the domestic courts ’ failure to secure him the effective enjoyment of contact with his son which cannot be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 16, 25 0 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.",
"B. Costs and expenses",
"109. The applicant also claimed EUR 680 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court.",
"110. The Government observed that the applicant ’ s lawyer had not produced any invoice confirming the amount paid for legal fees in respect of the proceedings before the Court, except for the sum of 72. 80 Polish zlotys (EUR 18 ) for postal expenses. In this regard, they submitted that according to paragraph 9 (1) of the Regulation of the Minister of Finances of 28 March 2011 (Journal of Laws of 2011, no. 68, item 360 with subsequent changes) an invoice should be issued within seven days of the service in question being performed.",
"111. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 680 for the domestic proceedings and EUR 18 for the proceedings before the Court. In respect of the latter, the Court notes that the applicant has not produced any invoice or other document showing that he actually incurred costs in respect of his legal representation in the proceedings before it. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court rejects the claim in this part.",
"C. Default interest",
"112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
83 | Stankūnaitė v. Lithuania | 29 October 2019 | This case concerned complaints by the applicant about care decisions related to her daughter and the fact that her daughter was not returned to her even though the criminal investigation against her (her former partner had accused her of being complicit in the sexual molestation of their daughter) had been discontinued. She also complained about the delays in the actual return of her daughter after the court order in her favour. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicant. It found in particular that the Lithuanian authorities had acted with the requisite diligence in the care proceedings: they had had first to wait for the applicant to be cleared of involvement in the alleged sexual molestation of her daughter. Once that obstacle was out of the way and the courts had examined what was in the best interests of the child they had ordered her return to the applicant. The authorities had then faced obstruction from other family members in handing the child over but had eventually successfully taken the appropriate measures to deal with what was an extremely difficult situation. | Parental Rights | Parental authority, child custody and access rights | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background to the case",
"6. The applicant was born in 1986. Her current address is unknown to the Court (see paragraphs 14 and 105 in fine below).",
"7. The applicant lived with D.K. On 19 February 2004 a daughter was born to the couple, who were not married.",
"8. On 19 March 2008 the Vilnius City First District Court approved a settlement agreement between the applicant and D.K., who by that time had been living separately, in which it was agreed that the daughter would live with D.K. The first - instance court ’ s decision was upheld by the Vilnius Regional Court on 29 May 2008, which dismissed the applicant ’ s appeal. The applicant retained the right to see her daughter and would periodically take her to her home.",
"9. On 30 November 2008, on the basis of an application by D.K., the authorities started a pre-trial investigation on suspicion that the girl had been sexually molested (Article 153 of the Criminal Code, see paragraph 85 below ) by a certain A. Ū. (also see paragraphs 26 - 28 below). D.K. alleged that the crime had taken place in the applicant ’ s rented apartment in Kaunas, and in her presence.",
"B. D.K. ’ s application to restrict the applicant ’ s parental rights and the applicant ’ s contact with her daughter until December 2009",
"10. On 22 December 2008 D.K. lodged an application with the Kaunas City District Court to restrict the applicant ’ s parental rights. He argued that, pursuant to the settlement agreement, the applicant had been communicating with their daughter and taking her to her home. According to D.K., when the girl had returned to him having visited her mother between 21 and 23 November 2008, she had started telling him about how her mother and some men who had come to her mother ’ s home had been behaving with her. D.K. noted having already lodged an application with the police regarding his daughter ’ s molestation, and that a criminal investigation had been opened (see paragraph 9 above). D.K. then asked the court to apply temporary protective measures in order to restrict the applicant ’ s ability to see her daughter until the civil case for the restriction of her parental rights had been resolved.",
"11. By a ruling of 23 December 2008 the Kaunas City District Court granted D.K. ’ s request for temporary protective measures, prohibiting the applicant from seeing her daughter until the civil case for the temporary restriction of her parental rights had been terminated. The court noted that a pre - trial investigation had been opened concerning the alleged sexual molestation. Accordingly, there was sufficient basis to apply temporary protective measures. The court also cited Article 3.65 § 2 (7) of the Civil Code as the legal basis for the measures (see paragraph 79 below).",
"12. However, following an appeal by the applicant, by a ruling of 27 April 2009 made in written proceedings the Vilnius Regional Court varied the temporary protective measure by allowing the applicant to see her daughter in the presence of a representative from the Kaunas city childcare authorities. The Regional Court pointed out that any suspicions against the applicant had not yet been proven, therefore to completely forbid the child from seeing her mother could be detrimental to the child ’ s best interests.",
"13. On 8 July 2009 the Kaunas City District Court amended the contact order between the applicant and her daughter: they were to meet twice a week between 9 and 11 a.m. at the premises of the Kaunas city childcare authorities, in the presence of their representative. D.K. was responsible for taking his daughter to those meetings. The court also suspended the examination of the civil case concerning the restriction of the applicant ’ s parental rights until the pre-trial investigation in the criminal case about the girl ’ s sexual molestation had been terminated. The applicant and her lawyer took part in that hearing.",
"14. By a final ruling of 15 December 2009 the Vilnius Regional Court examined an appeal lodged by the applicant and essentially left the District Court ’ s decision of 8 July 2009 unchanged, with the exception that D.K. ’ s sister N.V. had become responsible for taking the girl to the meetings, which were to take place in a secure location designated by the Lithuanian witness protection authorities, and in the presence of a representative from the childcare authorities. The reason for that was a change in circumstances – there had been an incident on 5 October 2009 in which two people had been shot (see paragraphs 16 and 17 below), and State protection had been instituted in respect of both the applicant and her daughter. When upholding the temporary protective measure as set out earlier, the Regional Court highlighted the principle that priority had to be given to the interests of the child. It relied on Article 3.3 § 1 of the Civil Code and Article 4 § 1 (1) of the Law on the Fundamentals of Protection of Children ’ s Rights ( see paragraphs 77 and 79 below ). The Regional Court also considered that the District Court had properly assessed the situation, having taken into account the opinion of the Kaunas childcare authorities, which had been the institution providing a conclusion in the case. Lastly, it pointed out that the applicant had herself limited contact with her daughter in the past period, although it did not elaborate further.",
"15. According to the Government, who have not been contradicted on these points by the applicant, from 5 October 2009 onwards the meetings between the girl and the applicant did not take place based on reasons that lay with the latter. Specifically, on 27 October 2009 the applicant asked the childcare authorities to postpone her meetings with her daughter. She resumed the meetings on 17 December 2009. Despite being informed in writing, the applicant also failed to appear at a review meeting concerning the drafting of a temporary guardianship plan for her daughter, which had been organised by the childcare authorities to take place on 21 October 2009.",
"C. Events leading to the decision to establish temporary guardianship for the applicant ’ s daughter",
"16. On 5 October 2009 two people were gunned down in Kaunas. One of them was a judge of the Kaunas Regional Court, J.F., the other was the applicant ’ s sister, V.N. It was suspected that D.K. had committed that crime. He fled from the law enforcement authorities and, in rather unclear circumstances, was found dead on 17 April 2010, the day which the court later pronounced as his date of death. On the basis of expert reports, including from the Swedish National Forensic Service ( Rättsmedicinalverket ), the Lithuanian authorities found that D.K. had actually died from alcohol and drug poisoning, and that he had choked on the contents of his own stomach.",
"17. On 8 October 2009 the director of the Kaunas Municipal Administration, on the basis of Articles 3.261 and 3.265 of the Civil Code (see paragraph 79 below), issued a temporary guardianship in respect of the applicant ’ s daughter, effective as of 5 October 2009. She was supposed to reside at the child development centre at the Vilnius University Hospital. Afterwards, on 12 October 2009 the director of the Kaunas Municipal Administration, on the basis of Article 3.264 of the Civil Code (see paragraph 79 below), appointed N.V., who was D.K. ’ s sister and a judge at the Kaunas Regional Court, as the temporary guardian of the child who should live with N. V. at her home in the township of Garliava, in Kaunas district. The decision stipulated that it could be appealed against under the rules set out in the Law on Administrative Proceedings (see paragraph 86 below ). No such appeal was lodged.",
"D. Criminal proceedings",
"1. Termination of the criminal proceedings against the applicant",
"18. During the pre-trial investigation regarding the sexual molestation of the applicant ’ s daughter (see paragraph 9 above), the prosecutor questioned a number of individuals, including the applicant, D.K ., A. Ū. (the main suspect) and J.F. At a certain point additional charges of sexual assault under Article 150 § 4 of the Criminal Code were brought in respect of the applicant, her sister V.N., as well as A. Ū. and J.F.",
"19. In the course of the pre-trial investigation the authorities questioned the applicant ’ s daughter as a victim on four occasions: on 17 and 30 December 2008, and on 9 June and 23 October 2009. Her testimony varied: during the first two interviews she said that acts of molestation had been performed on her by the suspect A. Ū ., and also testified that her mother had been present. Later, however, her account of what had happened became more and more detailed. According to the submissions of D.K. and his relatives, and, partly, the interviews with the applicant ’ s daughter, she started remembering more and more details of her sexual abuse: that besides the main suspect, A. Ū ., there were two other men who had molested and sexually assaulted her on a number of occasions and in the presence of the applicant and the applicant ’ s sister V.N.; this had taken place at the applicant ’ s home, V.N. ’ s home and a hotel.",
"20. In the course of the criminal proceedings the girl was assessed by the psychologist I. Č., whose conclusion of 12 August 2009 stated that the girl had been capable of talking about events that had happened in the past. That said, it was not possible to ascertain whether the girl ’ s experience had been direct, that is, whether the acts of sexual molestation had been performed on her, or whether that experience had been indirect, that is, whether she had watched the sexual acts of others, seen pornographic films, or heard adult conversations and questions on the topic. It was also not possible to ascertain whether those actions actually had been performed with the girl because later on she had been too often and improperly questioned about the alleged sexual abuse. The psychologist also addressed, as a separate matter, the video material provided by D.K. with the girl ’ s accounts of sexual abuse. The psychologist pointed out that the very clear and specific description of A.Ū. provided by the girl in the video-recordings, that her father had given to the authorities, had differed from how she had described him in her interview with the authorities of 17 December 2008. The psychologist concluded that the father had influenced the girl ’ s real experience by constantly talking with his daughter about that topic and giving her leading questions.",
"21. The State Forensic Psychiatry Service ’ s specialist report no. 92TPK ‑ 1 of 25 November 2009, based on the psychological assessment of the girl, also supported the conclusions of psychologist I. Č. According to this report, the girl ’ s age and individual experience, as well as the fact that from the start of the talks about sexual violence she had been living with her father, could have had an impact on her testimony. In general, the information which the girl had obtained from the adults, and the adult conversations and opinions expressed in her presence, had influenced the child ’ s understanding about those events and the way she had described them. For children of her age, recognition and positive evaluation by adults, especially those who were important to them and had authority, was important. Accordingly, in order to please, children would adjust their statements and answer as asked.",
"22. On 26 January 2010 a prosecutor at the Vilnius Regional Prosecutor ’ s Office discontinued the criminal investigation in respect of the applicant and the two people who had been shot, V.N., and J.F. (see paragraph 16 above), holding that they had not committed the crimes of sexual assault and sexual molestation (Articles 150 § 4 and 153 of the Criminal Code).",
"Among other evidence, the prosecutor relied on the conclusion by the forensic psychiatrists, which had evaluated the applicant ’ s daughter ’ s testimony as not entirely credible, given that she had been questioned while she had already been living with her father and his family members, who could have indirectly influenced her perceptions (see paragraphs 20 and 21 above ). Moreover, in none of her interviews or occasions when her behaviour had been observed had the specialists noticed any behaviour to show that she had experienced long - term sexual abuse. The girl ’ s testimony had not been sufficiently precise and consistent.",
"In so far as the suspect A. Ū. was concerned, the suspicions against him were changed to sexual molestation, and he was charged with that crime on 23 February 2010.",
"The prosecutor informed the girl ’ s representative N.V. about the right to challenge this decision via a higher prosecutor.",
"23. N.V. then challenged the prosecutor ’ s decision. Having examined the material in the pre-trial investigation file, on 23 February 2010 a higher prosecutor dismissed the appeal, upholding the decision of 26 January 2010 as reasonable and sound.",
"24. By a final and unappealable ruling of 3 November 2010 the Panevėžys Regional Court upheld the prosecutors ’ conclusions as well ‑ founded. The court observed that when considering the girl ’ s testimony, the circumstances in which the testimony about sustained sexual abuse had been given had been particularly important. The same importance should have been attributed to the specialists ’ conclusions. Those circumstances had been examined in this case – the girls ’ family members had been questioned and the prosecutors had stated their opinions about the credibility of that testimony.",
"The Regional Court also stressed that, as established by the prosecutors, the dispute between the applicant and D.K. over their daughter had started in 2006, and their relationship had become hostile. Moreover, as pointed out by the prosecutor in the decision of 23 February 2010, the video recordings which D.K. had made of the girl clearly showed that on more than one occasion it had been talked at length with the girl about sexual actions and sexual violence, and in this way her understanding of sexual experience and her subsequent statements had been influenced ( see also paragraphs 20 and 23 above ).",
"The Regional Court noted that the prosecutor ’ s assessment had been based on the experts ’ opinion and specialists ’ conclusions, as well as D.K. ’ s own admission that the video - recordings had started to be made in December 2008, that is, from the very beginning of the pre-trial investigation ( see paragraph 9 above ). It also pointed to the conclusions by the psychologist I. Č. and the report no. 92TPK-1 (see paragraphs 20 and 21 above ).",
"25. As to the applicant, the Regional Court noted that the prosecutor ’ s decision to discontinue the pre-trial investigation had been based on the gathered material, which had been carefully and thoroughly examined. Although N.V. and her family members had claimed that the applicant ’ s involvement in her daughter ’ s sexual abuse and molestation had been proven by the girl ’ s testimony, the Regional Court considered that testimony to be inconclusive. It upheld the prosecutor ’ s conclusions that the vague and inconsistent data could not form a basis for holding that the applicant had been involved in the girl ’ s molestation.",
"2. A.Ū. ’ s death and posthumous acquittal",
"26. As to the main suspect in the case, A. Ū ., on 23 February 2010 a bill of indictment on charges of sexual molestation of a minor (Article 153 of the Criminal Code) was drawn up and the criminal case was transferred to the court for examination.",
"27. However, on 13 June 2010 A. Ū. was found dead. By a decision of 17 November 2010 the District Court discontinued the criminal case against A.Ū. on the grounds that the accused had died. It was later reopened at the request of A. Ū. ’ s relatives, who sought to clear his name.",
"28. By a judgment of 30 November 2012 the Vilnius City Second District Court acquitted A. Ū. in respect of the charges of sexual molestation, under Article 153 of the Criminal Code. That judgment was upheld by the Vilnius Regional Court on 10 April 2013, which held that the charges had not been proven. In its reasoning the Regional Court also extensively relied on the psychologists ’ conclusions (see paragraphs 20 and 21 above).",
"3. Pre-trial investigation against D.K. on account of the disclosure of information about his daughter ’ s private life to the public",
"29. On an unspecified date in 2009 the authorities started a pre-trial investigation in respect of D.K. on the grounds that he, by sending to the media and other individuals filmed recordings of his daughter recounting the sexual acts possibly performed against her, had not only made public the material of a criminal investigation, but had also made public information about his minor daughter ’ s private life, it being degrading to her honour and dignity. The criminal investigation against D.K. was based on allegations of abuse of parental rights and duties ( Article 163 of the Criminal Code, see paragraph 85 below). It was discontinued on 3 May 2010, upon D.K. ’ s death (see paragraph 16 above).",
"E. Civil proceedings for the child ’ s return to the applicant",
"1. The applicant ’ s request that her daughter be returned to her care, and the applicant ’ s contact with her daughter until December 2011",
"30. On 23 December 2009 the applicant applied to the Kėdainiai District Court for a permanent residence order in respect of her daughter. She submitted that she could take care of her daughter and that there had been no reason to prevent her and her daughter communicating. She also pointed out that her parental rights had not been restricted.",
"31. Within those proceedings N.V. lodged a counterclaim, applying for residence in respect of the child and asking that the applicant ’ s parental rights in respect of her daughter be permanently restricted.",
"32. In the spring of 2010 the applicant asked the courts to lift the temporary protective measure, on the grounds that by a decision of 26 January 2010 the prosecutor had dropped the criminal charges against her (see paragraph 22 above ). However, by a ruling of 4 June 2010 the Panevėžys Regional Court dismissed her request, noting that the contact schedule for the applicant and her daughter, as set out by the Vilnius Regional Court on 15 December 2009 (see paragraph 14 above), was sufficient for them to maintain contact and implement her parental rights.",
"The court also noted that in order to annul or change the temporary protective measure a factual basis was necessary. In the present case, such a basis could be the child ’ s suffering when living with the guardian or her interest in communicating with her mother. However, according to the court, the applicant had not provided any factual proof that her and her daughter ’ s relationship could break up because of the contact schedule set by the court on 15 December 2009, or that the existing contact order would be detrimental to the child ’ s interests, such as her not having proper conditions to grow and develop. The court also relied on the fact that an appeal against the prosecutor ’ s decision to discontinue the criminal proceedings against the applicant and her co-accused had been pending (see paragraphs 23 and 24 above ).",
"33. According to the report of 14 December 2009 of the Psychological Support and Counselling Centre (a public institution), the temporary guardian N.V. and the girl had attended the centre on 16 November 2009 and psychological support had been provided to the girl once a week. The employees of the centre noted that the girl and N.V. had established a relationship of trust. They proposed that psychological support be continued. In the report of the centre of 17 February 2010 it was noted that N.V. had taken part in a training programme for guardians.",
"34. In January and February 2011, both the applicant and N.V. had asked the Kėdainiai District Court to order a number of examinations. In particular, the applicant asked if the experts could ascertain whether her daughter could objectively understand her surroundings and objectively express her wishes as regards her place of living, whether she could be influenced by the fact that she lived with her temporary guardian and in her home, and whether she could objectively answer the question whether she wished to live with her mother. For her part, N.V. asked if the experts could ascertain how the child ’ s psychological state would be affected should she have to change her place of residence, leave N.V. ’ s home and be transferred to the applicant ’ s care.",
"35. By a ruling of 8 February 2011 the Kėdainiai District Court approved those questions and ordered the experts at the State Forensic Psychiatry Centre to conduct the examination.",
"36. In the meantime, on 18 August 2011 the Kėdainiai District Court granted a request by the applicant regarding the times when she could see her daughter. As per the applicant ’ s wishes, the court changed the time for the meetings to 3 to 5 p.m. on Mondays and Thursdays, to adapt to the girl ’ s school attendance times.",
"37. Having assessed the girl, in October 2011 the psychiatrists issued report no. 103MS-143. They found that because of her age, emotional development and state of mind the girl could not fully grasp her situation and could not form an independent opinion as to where she preferred to live. As a result, they recommended that the girl should not be questioned in court. Even though the girl had stated that she wished to live with her temporary guardian N.V., she could not explain why. Furthermore, the child ’ s view was predetermined by objective facts, namely that she could not remember the time when she had lived with her mother and that she was currently residing with N.V. ’ s family, who had a negative attitude towards the applicant.",
"The psychologists also pointed out that both her mother and the temporary guardian were emotionally important persons for the child; she therefore avoided talking not only about them but also about the matter of where she should reside. The psychologists observed having noticed no difference in the child ’ s communication with her mother and N.V. – that she felt a strong connection and had a sense of security with both of them, who could both properly take care of the girl. Lastly, the psychologists noted that the natural and essential need of every child was to live with their parents – the mother in this case and that the child ’ s transfer to her mother would not have negative impact on her psychological state. Mutual goodwill between the applicant and N.V. and the latter ’ s family members could ease the girl ’ s adaptation to a new place of residence.",
"2. The Kėdainiai District Court ’ s decision of 16 December 2011",
"38. On 16 December 2011, at a closed hearing in the presence of the applicant, her lawyer, N.V. and the childcare authorities, the Kėdainiai District Court held that the applicant could exercise her parental rights unrestrictedly. It ruled that the girl should reside with her mother. A counterclaim by N.V. that the girl should stay with her was dismissed. The court ruled out that there would be any danger for the girl if she was returned to her mother. Relying on the Court ’ s judgment in Schaal v. Luxembourg (no. 51773/99, § § 48 and 49, 18 February 2003), the District Court emphasised that any criminal charges against the applicant had been dropped as unfounded by a final court ruling of 3 November 2010 (see paragraphs 24 and 25 above). It followed that it was necessary to reunite the applicant with her daughter as soon as possible. In that context the District Court also held that accusations which N.V. had flaunted against the applicant – that she had assisted in her daughter ’ s molestation – had been nothing more than a continuation of D.K. ’ s earlier efforts to have residence and to completely prohibit the mother from seeing her daughter.",
"39. The District Court relied on the Court ’ s case-law in Olsson v. Sweden (no. 1) (24 March 1988, § 72, Series A no. 130 ) and Eriksson v. Sweden ( 22 June 1989, § 58, Series A no. 156), to the effect that taking a child into care meant a very serious interference with the right to respect for family life. Separation of a biological family had to be supported by sufficiently sound and weighty considerations in the interests of the child. For the Lithuanian court, no such circumstances existed as concerned the continued separation of the girl and her mother.",
"Firstly, there was no proof that the applicant had failed to properly take care of her daughter while they had lived together in 2006, or after their separation in 2008, when they had had supervised contact. Similarly, although N. V. had relied on the settlement agreement of 1 9 March 2008 in which the applicant had agreed that her daughter would reside with D.K. (see paragraph 8 above), the District Court considered that such a settlement agreement could not be treated as the applicant ’ s refusal of the child. The court considered that the applicant had convincingly explained that she had signed that agreement envisaging that her daughter would only be living temporarily with the father, also because at that time she had been studying and could only see her daughter on weekends. It was only after concluding the agreement that she had realised that she had been deceived, and had therefore immediately appealed against it.",
"The court also pointed to the fact that the applicant had consistently fought for her right to live with her daughter. There were no circumstances in the case allowing for the conclusion that the applicant had ever failed to use her parental powers in respect of her daughter or that she had acted against the interests of her child.",
"40. Similarly, after J.F. ’ s and V.N. ’ s murder a search had been announced for D.K., the applicant had been placed under State protection and her right to communicate with her daughter had been restricted (see paragraphs 16 and 17 above). Separating them obviously affected their relationship, which became weaker. However, this fact could not be held against the applicant. In this connection the court relied on childcare specialists ’ explanations and reports, according to which a negative attitude was being formed about the applicant at N.V. ’ s home, what had as a consequence that the applicant ’ s daughter had become introverted and had refrained from talking about her mother not only at home, but also with the kindergarten teachers or childcare authorities.",
"The court also took notice of the forensic experts ’ explanations in report no. 103MS-143 that although the girl had stated that she wanted to live with N.V., she could not explain that choice (see paragraph 37 above). For the court, one could only conclude that, not having been able to freely communicate with her mother as of May 200 8, when D.K. had taken her (see paragraph 8 above), and having been transferred to N.V. ’ s care in October 2009 (see paragraph 17 above), the girl had become attached to N.V. because the latter had been the only familiar and close person whom she could trust. It was also probable that the girl, having no other choice and not understanding her mother ’ s situation (where and how she had lived), had hidden her feelings towards her mother (as confirmed by the testimony of the psychologists and kindergarten teachers).",
"Accordingly, when assessing the girl ’ s emotional connection with her guardian, as explained by the experts, it was of paramount importance to understand that such feelings were not entirely natural, but based on a sense of “security”. Furthermore, the girl ’ s contact with her mother, in the present circumstances – twice a week and in the presence of others – could not be seen as free and uninterrupted. Such a lack of uninterrupted and regular communication could only lead to a further weakening of their relationship.",
"That being so, the District Court also took note that since January 2010 the applicant had received regular assistance from a psychologist before her meetings with her daughter, so that they would run easier, which had had a positive effect on their communication. The psychological experts confirmed (report No. 103MS-143, see paragraph 37 above) that the girl ’ s relationship with her mother was strong, emotionally adequate and a “ safe haven ”.",
"41. The court acknowledged N.V. ’ s arguments that a close connection had been established between her and the applicant ’ s daughter, and that she loved the child and had the complete ability to take care of her. Even so, that was not sufficient to limit the applicant ’ s parental rights towards the child. On this point the District Court relied on the Court ’ s case-law to the effect that in such cases the child ’ s best interests were of paramount concern. This had two aspects: on the one hand, it was necessary to ensure that the child grew in a safe environment, and that in no circumstances could a mother have recourse to measures which could harm the child ’ s health and development (the court relied on Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III ). On the other hand, it was also obvious that the best interests of the child were to grow with his family, unless it was proven that the family was inappropriate, because to do otherwise would mean separating the child from his roots. Moreover, even though the national authorities had wide discretion when deciding whether to give the child to his or her biological parents, the family connection could be restricted only in “particularly special circumstances” and everything had to be done in order to safeguard the personal connection and, if and when possible, “restore the family” (the court cited Amanalachioai v. Romania, no. 4023/04, § 81, 26 May 2009 ).",
"42. The District Court also highlighted that the instant case did not concern a dispute between persons who were competing for the right to have the child in their care, where the main principle was the best interests of the child. In contrast, this was a dispute between the child ’ s mother and a temporary guardian, in which completely different criteria, defining the relationship between the child and the mother, applied. Given that no grounds to limit the mother ’ s rights had been established, priority had to be given to the right, acquired by the child at birth, to live in a family with her mother.",
"In that context it was also noteworthy that N.V. had possibly failed to properly execute her duties as a guardian. In this respect, the Ombudsperson for the Protection of Children ’ s Rights ’ report of 10 December 2010 criticised the actions of N.V., such as providing the media with information about the girl ’ s inner emotional state, thereby breaching the child ’ s interests. The Ombudsperson then recommended that the Kaunas childcare authorities guarantee the girl ’ s rights and pointed N.V. ’ s attention to the fact that information of a private nature should not be disseminated. The fact that N.V. ’ s negative attitude towards the applicant had affected the girl, as well as her failure to ensure that information related to the child would not be made public, had been noted also by the psychologists.",
"For the court, such circumstances had to be evaluated as being counter to the aims of temporary guardianship, which, as a concept, in any case had the purpose of returning the child to the family, whenever the circumstances allowed. The need to reunite natural parents and a child had also been emphasised by the Court (the District Court relied on Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000 ‑ VIII). For the District Court, the conclusions of the forensic experts and childcare services had completely ruled out the need to limit the applicant ’ s rights as a mother, as demanded by N.V.",
"43. The District Court further emphasised that the girl would suffer irreparable harm if she was left to reside with N.V.:",
"“The court considers that the girl ’ s interests would be seriously harmed if she stayed in the family of N.V., because that would mean that the girl ’ s inherent rights to family ties, to be brought up and live with her biological family, would be restricted without any lawful grounds. As it has been established by forensic experts, even without any particular influence, the girl has picked up the negative attitude of N.V. and her family towards [the applicant]. Therefore, if the girl continued living with N.V., and taking into account N.V. ’ s particularly negative attitude towards [ the applicant ], there is a big risk that [ the applicant ] and her daughter ’ s relationship will become weaker or will be completely disrupted. The court considers that N.V. ’ s negative influence would obstruct [ the applicant ] in preserving a relationship with her daughter, which would clearly and seriously breach the interests of the child. ”",
"44. The District Court also referred to the Court ’ s case-law on the issue of prolonged access restriction. It quoted Dolhamre v. Sweden (no. 67/04, § 120, 8 June 2010) to the effect that following any removal into care, stricter scrutiny was called for in respect of any further limitations by the authorities, for example on parental rights or access, as such further restrictions entailed the danger that the family relations between the parents and a young child were effectively curtailed. The District Court emphasised that the applicant and her daughter had been separated for almost three years. During that time they could communicate only minimally, which had undoubtedly negatively affected their relationship. It was unlikely that continuous separation of the mother from her child would make their relationship stronger.",
"For the District Court, it was of paramount importance that decisions determining family relations were not adopted merely because of a lapse of time or by simply upholding de facto situations. Accordingly, considering that the passage of time in the instant case was unacceptable because it could have irreparable consequences for the relationship between the child and her mother, with whom the former did not live, the court considered that its decision to return the girl to her mother had to be executed swiftly (Article 283 § 1 ( 4 ) of the Code of Civil Procedure, see paragraph 83 below ). Given that the two had lived apart for a long time, the court set a term of fourteen days for the child to be returned to the applicant. During those fourteen days the applicant was to meet with her daughter daily, in the presence of child psychologists, and the duration of those meetings was to be increased by one hour until the meetings lasted six hours. If the childcare authorities decided that the girl was ready to move in with her mother earlier, she was to be returned in advance of the set deadline.",
"45. The District Court ordered N.V. to transfer the girl to the applicant within fourteen days, that is, by 30 December 2011. It quashed the temporary protective measures (see paragraphs 12, 14 and 36 above). The part of the court decision regarding the girl ’ s place of residence, the obligation on N.V. to transfer the girl and the lifting of the temporary protective measures were to be executed immediately, in accordance with Article 283 §§ 1 (4) of the Code of Civil Procedure (see paragraph 83 below).",
"46. As later established by another court, on the date the decision of 16 December 2011 was adopted N.V. took the girl out of school and started home schooling (see also paragraph 58 below).",
"From that time onwards, crowds dissatisfied with the Kėdainiai District Court ’ s decision of 16 December 2011 would maintain a constant vigil around N.V. ’ s home in Garliava to “ protect ” the girl from being taken away.",
"47. Afterwards, N.V. lodged an appeal challenging the part of the Kėdainiai District Court ’ s decision ordering the girl to be returned to her mother within fourteen days. By a ruling of 28 December 2011 the Panevėžys Regional Court refused to accept the appeal for examination on the merits, on the grounds that N.V. had failed to follow the rules of civil procedure.",
"48. By rulings of 28 December 2011 and 3 and 6 January 2012 the Panevėžys Regional Court again refused, on procedural grounds, to accept N.V. ’ s appeals in respect of the decision ordering the applicant ’ s daughter to be returned to the applicant by 30 December 2011.",
"49. By a ruling of 18 April 2012 the Klaipėda Regional Court dismissed N.V. ’ s appeal against the Kėdainiai District Court ’ s decision of 16 December 2011 and left it unchanged.",
"3. The course of the girl ’ s transfer to the applicant after the Kėdainiai District Court ’ s decision of 16 December 2011",
"(a) The applicant ’ s contact with the girl",
"50. The Government stated that the applicant had been provided with psychological consultations to strengthen her relationship with her daughter. She had attended a special training course for developing positive parental skills and received individual psychological consultations, as suggested and arranged by the Kaunas childcare authorities. The Government also submitted that, according to the childcare authorities, the applicant ’ s use of psychological support had been rather passive, and she had been encouraged to attend psychological consultations more than once.",
"51. Given that the Kėdainiai District Court ’ s decision had obliged the Kaunas childcare authorities to organise the meetings between the applicant and her daughter, they had initially drafted a schedule for the meetings in a neutral location for the period of execution of that decision and until 30 December 2011. The childcare authorities had obtained N.V. ’ s signature to comply with that schedule and had also arranged for a psychologist to be present during those meetings; they had also arranged psychological support for the applicant, her daughter and N.V. Both parties had been offered the possibility of mediation, however, they had both refused that option.",
"52. According to the Government, after the decision of 16 December 2011 N.V. refused to take the girl to the meetings with the applicant in a neutral location, on the pretext that the girl did not want to leave the house. With the efforts of the childcare authorities, the applicant could then see her daughter at N. V. ’ s house, and their meetings took place on 20, 23, 24 and 27 December 2011, and on 19 February 2012, the girl ’ s birthday.",
"53. The Government submitted that on 16 March 2012 the applicant had asked the childcare authorities to organise meetings with the girl in a neutral location. Since the authorities had been aware of the girl ’ s refusal to leave the house, those meetings had taken place on 19, 21, 22 and 23 March 2012 at N.V. ’ s house, with the participation of childcare specialists and a psychologist on the last two dates (22 and 23 March 2012).",
"54. The Government specified that following the unsuccessful handover of the girl on 23 March 2012 (see paragraph 62 below ), the childcare authorities had taken steps to deal with the possible psychological consequences suffered by the child. Various means of psychological support had been proposed, including art therapy.",
"55. The Government also submitted that on 6 April 2012 an opinion concerning the emotional state of the girl had been received from a public institution, the Psychological Support and Counselling Centre. Accordingly, taking the girl ’ s state into account, a meeting with the mother, irrespective of location, would cause the child grave additional stress, and the relationship between the girl and the mother should be strengthened gradually. Therefore, the Kaunas childcare authorities suggested to the applicant that she should write letters to the girl, which they would read to her. The applicant actually wrote several such letters, and the girl responded.",
"(b) Writ of execution, bailiff ’ s actions and imposition of a fine on N.V. for failure to execute the District Court ’ s decision of 16 December 2011",
"56. On 16 December 2011 the Kėdainiai District Court also issued a writ of execution under which N.V. was obliged to transfer the child to the applicant. The bailiff instructed N.V., under signature, to return the child to the applicant on 30 December at the secondary school in Kaunas district, which the girl had attended. However, even though the bailiff as well as child psychologists and childcare specialists were present at the school on the specific date and time, N.V. did not show up and did not bring the girl. She did not answer her telephone either. The bailiff afterwards requested the childcare authorities to provide assistance with the execution of the court decision for the girl ’ s transfer, and they recommended that the transfer take place in a neutral environment.",
"The childcare specialists noted that although the meetings between the girl and the applicant had been aimed at making the eventual transfer easier, during those meetings it had been concluded that N.V. had not been preparing the girl for her return to her mother. The bailiff then attempted to have the girl returned to the applicant on 11 January 2012 at the premises of Kaunas police headquarters in the presence of childcare authorities and a psychologist, but on that day N.V. again failed to show up and bring the girl. The following day N.V. wrote to the bailiff, alleging that she had been executing the court decision, but that the girl did not wish to meet her mother and live with her.",
"57. On 5 January 2012 the applicant asked the bailiff to fine N.V. for failing to execute the court decision, and the bailiff in turn requested the Kėdainiai District Court to impose a fine of 1,000 Lithuanian litas (LTL ) ( approximately 390 euros (EUR) ) for each day the court decision remained unexecuted, which was the maximum amount under Article 771 § 5 of the Code of Civil Procedure (see paragraph 82 below). By a ruling of 29 March 2012 the court granted the bailiff ’ s request, but reduced the fine to LTL 200 (EUR 60) per day.",
"As specified by the Government, on that basis N.V. paid a sum of LTL 28,000 (EUR 8,100) to the applicant.",
"58. By a ruling of 8 June 2012 the Šiauliai Regional Court dismissed an appeal of N.V. against the court ’ s decision to impose a fine on her (see paragraph 57 above). The court noted that after the pronouncement of the Kėdainiai District Court decision of 16 December 2011 the girl had been immediately taken out of school and then home schooled at N.V. ’ s home. In doing so N.V. had not only failed to prepare the girl for the transfer to her mother, but had also isolated her from the environment which she had been familiar with, and, without objective grounds, had restricted her ability to communicate with other children of her age, as well as her mother. This was confirmed by the Kaunas childcare authorities ’ reports to the effect that when asked about the girl, N.V. had stated that it had been in the best interests of the child to stay at her home.",
"According to those reports, N.V. had confirmed refusing to take the girl to the meetings with her mother. The appellate court also noted that on 1 1 January 2012 N.V. had not only not shown up, either alone or with the child, at the meeting which the authorities had set for the girl ’ s transfer (see paragraph 56 above), but had also not informed the other participants of that meeting about not coming, “in this manner obviously ignoring the execution of the court decision and efforts by several State authorities to execute that decision with as little trauma to the child as possible”.",
"The appellate court also noted that since the Kėdainiai District Court decision of 16 December 2011 “the girl was not being taken to the meetings with her mother in a neutral environment, and that in the environment in which the girl lived [D.K. ’ s] family members would constantly and publicly express negative views towards the applicant”. This allowed for the conclusion that the girl ’ s opinion as to communication and living with the mother was being shaped “exclusively” by N.V. and the persons close to her. For the appellate court, it was clear that N.V. ’ s actions and inaction were purposefully targeted at obstructing the execution of the court decision of 16 December 2011. Moreover, the sole fact that the girl was eight years old was not sufficient to claim that she could independently and publicly express her opinions about her place of residence or her connection with her mother, as suggested by N.V.",
"59. Lastly, the Šiauliai Regional Court pointed out that N.V., being obliged under Article 18 of the Code of Civil Procedure (see paragraph 81 below) to execute the court decision and because of her education clearly understanding the consequences of failure to execute the court decision, had the ability to choose whether to execute the court decision or to risk paying the fine.",
"(c) The operation for the girl ’ s forcible transfer to the applicant",
"60. On 16 January 2012 the bailiff applied to the Kėdainiai District Court, requesting permission to forcibly take the child from N.V. On 22 March 2012 the Kėdainiai District Court granted the bailiff ’ s request, however emphasising that force could only be used for removing the obstacles for execution of the court decision but not against the child herself.",
"61. In the meantime, the bailiff cooperated with the psychologists who had been working with the girl, and the childcare authorities. A number of opinions and recommendations from various institutions concerning the execution of the court decision were received. The bailiff also systematically organised meetings between the different authorities concerning the enforcement. As a result, a number of proposals were given to the applicant and N.V. ; the latter was also warned a number of times of the obligation to act in the interests of the child.",
"62. On 23 March 2012, more than three months after the Kėdainiai District Court had ordered the transfer of the child to the applicant and one day after the same court gave its permission for the forcible taking of the girl, the bailiff issued a warrant requiring the child to be urgently handed over to the applicant. The bailiff arrived at the house of her grandparents, the parents of N.V., where the applicant ’ s meeting with the girl was taking place. However, because of the crowds surrounding N.V. ’ s house and “guarding” the applicant ’ s daughter against the enforcement of the Kėdainiai District Court ’ s decision of 16 December 2011 (see paragraph 46 above) and active physical resistance on the part of the girl ’ s grandparents, the bailiff ’ s attempt to enforce the court decision was unsuccessful and the girl was not taken.",
"63. Subsequently, the childcare authorities organised special training for their specialists in order to prepare adequately for the next attempt at execution of the court ’ s decision and handing over the child.",
"64. On 16 April 2012 the bailiff drafted two plans for enforcement of the decision and submitted them to the Lithuanian Association of Psychologists and a child and juvenile psychiatrist for assessment. After receiving their comments the bailiff made the relevant amendments and obtained the approval of the institutions participating in the transfer procedure.",
"65. According to the Government, on 18 April 2012 the bailiff issued N.V. with the warrant requiring her to execute the court decision and hand over the child in goodwill. She refused.",
"66. Between 24 April and 3 May 2012 the bailiff, having coordinated with the heads of all the institutions participating in the execution proceedings, including the Kaunas police headquarters, prepared a general plan for the girl ’ s transfer. The documents drafted by the bailiff set out the responsibilities of each of the institutions, and were given to all the participating parties (with the exception of N.V.), who signed them.",
"67. On 17 May 2012 the bailiff, the applicant, a childcare specialist and a psychologist arrived at N.V. ’ s house. They were accompanied by a police force of at least 100 officers, who removed any obstacles – the crowd which had gathered around N.V. ’ s home – hindering the execution of the court decision. The childcare specialist took the child from N.V. and handed her over to the applicant. The Government stated that afterwards competent specialists, including a psychologist, were monitoring the girl ’ s condition, and gave her the necessary support.",
"( d ) Measures taken with regard to persons who obstructed the execution of the court decision, as noted by the Government in their observations and not contested by the applicant",
"68. On 23 March 2012, after the unsuccessful attempt to enforce the Kėdainiai District Court ’ s decision (see paragraph 62 above), the Prosecutor General, on his own initiative, opened a pre-trial investigation with regard to the elements of a crime under Article 245 of the Criminal Code, namely failure to comply with a court decision not associated with a penalty ( see paragraph 85 below).",
"69. The bailiff also applied to the prosecutor on 27 March 2012, requesting that a pre-trial investigation be opened under Article 231 of the Criminal Code, namely hindering the activities of a bailiff ( see paragraph 85 below) with regard to the actions of N.V. ’ s relatives during the unsuccessful attempt to execute the court decision on 23 March 2012 (see paragraph 62 above). The prosecutor opened a pre-trial investigation of that charge and also likewise of the charge that a civil servant had been threatened (Article 287 § 1 of the Criminal Code).",
"( e ) Proceedings against N.V.",
"70. On 23 May 2012 the Prosecutor General addressed the Seimas requesting to lift the immunity of N.V., who was a judge. The prosecutor considered that the material gathered allowed for the conclusion that N.V. could have committed several criminal acts. The Government also noted that N.V. ’ s actions had been subject to examination in disciplinary proceedings before the Judges ’ Court of Honour.",
"71. In June 2012 N.V. resigned her judgeship after the Seimas voted to remove her legal immunity. N.V. then became the face of a new political party “The Way of Courage ( Drąsos Kelias )”, which alluded to her brother D.K. ’ s name.",
"72. In October 2012 N.V. was elected to the Seimas.",
"73. In spring 2013 the Prosecutor General asked the Seimas to lift N.V. ’ s immunity on the grounds that she had been suspected of a number of crimes contained in the Criminal Code, namely, contempt of court (Article 232 ), failure to comply with a court decision not associated with a penalty (Article 245 ), resistance against a civil servant or a person performing the functions of public administration (Article 286 ), abuse of the rights or duties of a guardian (Article 163 ), hindering the activities of a bailiff (Article 231 ) and causing negligible bodily harm (Article 140).",
"74. On 9 April 2013, on the basis of a proposal by the Prosecutor General, the Seimas agreed that N.V. ’ s immunity, as that of a member of the Parliament, be lifted, so that she could be prosecuted and detained.",
"75. Afterwards, N.V. fled from Lithuania. She was impeached for having failed to attend the plenary meetings of the Seimas, and proceedings regarding her extradition from the United States of America are currently pending."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. As to family life",
"76. The Constitution reads:",
"Article 38",
"“The family shall be the basis of society and the State.",
"Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State.",
"...",
"In the family, the rights of spouses shall be equal ... ”",
"Article 39",
"“The State shall take care of families raising and bringing up children at home, and shall render them support according to the procedure established by law.",
"...",
"Under-age children shall be protected by law.”",
"77. The relevant parts of the Law on the Fundamentals of Protection of Children ’ s Rights ( Vaiko teisių apsaugos pagrindų įstatymas ) read as follows:",
"Article 4. General Provisions for the Protection of the Rights of the Child",
"“Parents, other legal representatives of a child, State, municipal government and public institutions and other natural and legal persons must abide by the following provisions and principles:",
"(1) the legal interests of the child must always and everywhere be given priority consideration;",
"...",
"(4) every child shall be given the possibility to be healthy and develop normally, [both] physically and mentally, prior to his or her birth as much as afterwards, and upon birth, a child must also be guaranteed the opportunity to develop morally and to participate in life within society;",
"...",
"(7) parents and other legal representatives of a child must first [and foremost] safeguard the rights of the child.”",
"78. The Civil Code provides that parents (the father and mother) have equal rights and duties in respect of their children, irrespective of whether the child was born to a married or unmarried couple, after divorce or judicial nullity of the marriage or separation (Article 3.156).",
"79. Other provisions of the Civil Code relevant to this case read as follows:",
"Article 3.3. Principles for the legal regulation of family relations",
"“1. In the Republic of Lithuania the legal regulation of family relations shall be based on the principles of monogamy, voluntary marriage, the equality of spouses, the priority of protecting and safeguarding the rights and interests of children, raising children in the family, the comprehensive protection of motherhood and [on the] general principles for the legal regulation of civil relations.",
"2. Family laws and their application must ensure the strengthening of the family and its significance in society, the mutual responsibility of family members for the preservation of the family and the education of children, the possibility for each member of the family to exercise his or her rights in an appropriate manner and protect children of a minor age from the undue influence of the other members of the family or other persons or any other such factor.”",
"Article 3.65. Temporary protective measures",
"“1. The court, having regard to the interests of the children of the spouses as well as the interests of one of the spouses, may make orders for temporary protective measures ...",
"2. The court may make the following orders for temporary protective measures:",
"...",
"7) prohibit one of the spouses from having contact with his or her minor children or appearing in certain places.”",
"Article 3.170. Right of the separated parent to have contact with the child and be involved in the child ’ s upbringing",
"“1. The father or mother not living with the child shall have a right to have contact with the child and be involved in the child ’ s upbringing.",
"2. A child whose parents are separated has the right to have regular and direct contact with both parents irrespective of where they live.",
"3. The father or mother living with the child shall not interfere with the other parent ’ s contact with the child or involvement in [his or her] upbringing.",
"4. If the parents cannot agree on the involvement of the separated father or mother in the upbringing of the child and contact, the separated parent ’ s contact and involvement in the child ’ s upbringing shall be determined by the court.",
"5. The separated father or mother has the right to receive information about the child from all institutions and authorities concerned with the child ’ s education, training, healthcare and protection ... Information may be refused only in cases where the child ’ s life or health is at risk from the mother or father and in the cases provided for by law. ... ”",
"Article 3.174. Disputes over a child ’ s residence",
"“1. Applications for the determination of a child ’ s residence may be filed by the child ’ s father or mother, as well as by the parents or guardians/caregivers of a child ’ s minor-aged parents who do not have full legal capacity.",
"2. The court shall resolve the dispute having regard to the interests of the child and the child ’ s wishes. The child ’ s wishes may be disregarded only if they are against [his or her] best interests....”",
"Article 3.261. Child guardianship in public and non-governmental guardianship institutions",
"“1. A child deprived of parental care shall be placed in a public or non-governmental child guardianship institution where there is no possibility of placing the child under guardianship in a family or a social family ... ”",
"Article 3.264. Child guardianship in public and non-governmental guardianship institutions",
"“1. Where a child is placed under temporary guardianship, the child ’ s guardian shall be appointed by the decision of the ... municipal administration ... on the recommendation of the childcare institution ...”",
"Article 3.265. Place of guardianship",
"“The place of guardianship of the child may be:",
"1) the guardian ’ s place of residence;",
"...",
"3) an institution of child guardianship.”",
"80. Other domestic law as to a child ’ s right to live with his or her natural parents, the grounds for restriction of parental authority and the institution of care and guardianship are reproduced in the judgment Z.J. v. Lithuania ( no. 60092/12, § § 68-70, 29 April 2014).",
"B. Certain norms of civil procedure",
"81. The Code of Civil Procedure at the relevant time provided:",
"Article 18. Binding force of court decisions, rulings, orders or decrees",
"“Effective court decisions, rulings, orders or decrees are binding on the State or municipal authorities, civil servants and officials, physical and legal persons and shall be enforced throughout the entire territory of the Republic of Lithuania.”",
"82. As to the court ’ s role in family law cases and the transfer of children by court order, the Code of Civil Procedure reads as follows:",
"Article 376. Role of the court",
"“ ...",
"2. The court must take measures to reconcile the parties, as well as aim to protect the rights and interests of children. ... ”",
"Article 764. Transfer of children named in a court decision",
"“ 1. If the [judgment] debtor does not within the time - limit set by the court or the bailiff comply with a court order concerning the transfer of a child, the bailiff, having assessed the recommendations of the childcare service, the police and the psychologist, shall take a decision regarding the way the court order should be enforced ... A copy of the bailiff ’ s decision shall be sent to all parties of the proceedings and other relevant persons.",
"2. In implementing the court decision concerning the transfer of a child, the bailiff must carry out its duties in the presence of the [applicant] and a representative of the childcare service. To guarantee the protection of the child ’ s rights, a psychologist may be invited, at the request of any party to the civil proceedings or the childcare service, or by a decision of the bailiff.",
"3. If the debtor does not comply with the bailiff ’ s order for the transfer of the child, the bailiff has the right to ask the court for permission to forcibly take the child.",
"4. Where forcibly transferring a child, the police must remove obstacles for the enforcement of the decision for transfer, and the representatives of the childcare service shall take the child and hand him or her to the [applicant].",
"5. If a court rejects the bailiff ’ s request for permission to forcibly take the child, the ruling must indicate how the child ’ s transfer will proceed from that point forward.",
"6. Where enforcing the decisions mentioned [herein], protection of the child ’ s rights must be guaranteed.”",
"Article 771. Enforcement of decisions obliging the debtor to perform certain actions or stop performing them",
"“1. If the decision obliging the debtor to perform certain actions or stop performing them, where such actions are not related to transfer of property or funds, the bailiff shall note it in writing ...",
"...",
"5. When the decision obliging the debtor to perform certain actions or stop performing them, and those actions may only be performed by the debtor personally, is not executed within the set time - limit, the bailiff shall bring the aforementioned written statement to the district court of the place of execution. The issue of non-execution is decided in a court hearing. Both the debtor and the person in whose favour the court decision to be executed has been taken [the creditor] are informed of the time and place of the hearing ... Having established that the debtor has not executed the court decision, the court may impose a fine of up to one thousand litas [EUR 290] for each delayed day in favour of the creditor and set a new time - limit for execution of the court decision.",
"6. If the debtor one or more times again breaches the time-limit set for execution of the court decision, the court shall apply the sanction mentioned in paragraph 5 of this Article. Payment of the fine shall not release the debtor from the obligation to perform certain actions or stop performing them ... ”",
"83. Article 283 § 1 ( 4 ) of the Code of Civil Procedure at the material time provided that the court could order that its decision be urgently executed in part or entirely, before deciding the appeal, if a delay in executing the court decision could cause serious harm to the party seeking the decision or could make the decision overall impossible to execute.",
"84. Articles 2 and 3 of the Law on Bailiffs ( Antstolių įstatymas ) states that a bailiff is someone authorised and empowered by the State to carry out the enforcement of writs of execution, make findings of fact, or carry out any other tasks provided for by law (see also Manic v. Lithuania, no. 46600/11, § 71, 13 January 2015 ). A bailiff ’ s actions or failure to act may be appealed against to the district courts (Article 510 of the Code of Civil Procedure).",
"C. Criminal Code",
"85. The Criminal Code, in so far as relevant, reads:",
"Article 163. Abuse of the Rights or Duties of Parents, Guardians, Custodians or Other Lawful Representatives of a Child",
"“Anyone who abuses the rights of a father, mother, guardian or custodian or other lawful representative of a child by physically or mentally harassing a child, leaving him for long periods without care or by maltreating him in a similar cruel manner",
"shall be punished by a fine or by restriction of liberty or by arrest or by deprivation of liberty of up to five years.”",
"D. Other relevant domestic law",
"86. The Law on Administrative Proceedings, in so far as relevant, reads:",
"Article 15. Cases falling within the scope of competence of the administrative courts",
"“1. Administrative courts shall examine cases concerning:",
"1) the lawfulness of legal acts adopted and actions performed by the entities of State administration, as well as the lawfulness and justification of refusals by those entities to perform the actions within their competence or delay in performing such actions;",
"2) the lawfulness of acts passed and actions performed by the entities of municipal administration, as well as the lawfulness and justification of refusals by those entities to perform the actions within their competence or delay in performing such actions;",
"3) redress for damage caused by the unlawful actions of the entities of public administration (Article 6.271 of the Civil Code); ... ”",
"III. RELEVANT INTERNATIONAL MATERIALS",
"87. The United Nations Convention on the Rights of the Child, ratified by Lithuania on 3 July 1995, and published in the State Gazette ( Valstybės žinios ) on 21 July 1995, contains, inter alia, the following provisions :",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.",
"2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.",
"3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests. ... ”",
"88. On 25 January 1996 the Council of Europe adopted the Convention on the Exercise of Children ’ s Rights, which entered into force on 1 July 2000. To date, the Convention has been signed by twenty-eight Council of Europe Member States and ratified by twenty. Lithuania is not a party to the Convention. As concerns the decision-making process and role of judicial authorities, the Convention reads as follows:",
"Article 3 – Right to be informed and to express his or her views in proceedings",
"“A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights:",
"a. to receive all relevant information;",
"b. to be consulted and express his or her views;",
"c. to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.”",
"Article 6. Decision-making process",
"“In proceedings affecting a child, the judicial authority, before taking a decision, shall:",
"consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities;",
"in a case where the child is considered by internal law as having sufficient understanding:",
"ensure that the child has received all relevant information;",
"consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child;",
"allow the child to express his or her views;",
"give due weight to the views expressed by the child.”",
"Article 7. Duty to act speedily",
"“In proceedings affecting a child the judicial authority shall act speedily to avoid any unnecessary delay and procedures shall be available to ensure that its decisions are rapidly enforced. In urgent cases the judicial authority shall have the power, where appropriate, to take decisions which are immediately enforceable.”",
"Article 8. Acting on own motion",
"“In proceedings affecting a child the judicial authority shall have the power to act on its own motion in cases determined by internal law where the welfare of a child is in serious danger.”",
"89. On 17 November 2010 the Committee of Ministers of the Council of Europe adopted Guidelines on Child Friendly Justice. One of the fundamental principles is that all children have a right to be consulted and heard in proceedings involving or affecting them. The best interests of the children are a primary consideration for the Member States. The Guidelines also provide that children should be treated with care and sensitivity throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non ‑ judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Judgments and court rulings affecting children should be duly reasoned. In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child, while respecting the rule of law. In family law cases (for example, custody), courts should exercise exceptional diligence to avoid any risk of adverse consequences on the family relations. When necessary, judicial authorities should consider the possibility of taking provisional decisions. Once the judicial proceedings are over, national authorities should take all necessary steps to facilitate the execution of court decisions involving and affecting children without delay. Lastly, after judgments in highly conflictual proceedings, guidance and support should be offered to children and their families by specialised services (see point nos. 44-48, 50-54, 76 and 79).",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"90. In her application to the Court, and relying on Articles 6 § 1 and 8 of the Convention, the applicant complained, in particular, about the domestic authorities ’ decision to take her daughter into temporary care, about the fact that the return of her daughter had not yet taken place although the criminal case against her had already been terminated, and about the handling of the court proceedings regarding the return of her daughter and their overall length, notably in view of her limited opportunities to communicate with her daughter. In her observations to the Court, after the child had been actually returned to her, the applicant further complained about the belated execution of the court ’ s decision to return the child to her and the circumstances surrounding this execution. The Court will examine those complaints as submitted by the applicant.",
"91. The Court considers that the applicant ’ s complaints fall to be examined solely under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. The parties ’ arguments",
"(a) The Government",
"92. Firstly, the Government noted that, as regards the taking of her daughter into temporary guardianship in October 2009, the applicant had failed to appeal against that administrative decision before the administrative courts, even though such a possibility was clearly provided for by Lithuanian law (see paragraph 86 above ).",
"The Government also considered that this part of the applicant ’ s complaint was manifestly ill-founded.",
"93. As to the applicant ’ s complaint about the non-return of her daughter to her care, in their observations of 31 May 2012 the Government pointed out that on 17 May 2012 (see paragraph 67 above) the applicant ’ s daughter had been handed over to her following the enforcement of the Kėdainiai District Court ’ s decision of 16 December 2011. The situation complained of by the applicant had thereupon ceased to exist. The Government thus considered that the applicant could no longer claim to be the victim of an alleged violation of the Convention, and submitted that this part of the application should therefore be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"94. Should the Court nonetheless hold that the applicant could still be considered as having victim status within the meaning of Article 34 of the Convention, the Government submitted that the applicant had failed to exhaust domestic remedies by not having addressed the domestic courts seeking the State ’ s responsibility. In particular, had she considered that the delayed execution of the Kėdainiai District Court ’ s decision of 16 December 2011 had caused her damage, she could have claimed redress under Article 6.272 of the Civil Code. In this connection, the Government also noted that the main actor in the execution of the court ’ s decision had been the bailiff. Accordingly, had the applicant been dissatisfied with the bailiff ’ s actions, she could have appealed against those decisions to a court. However, she had failed to use either of these remedies.",
"(b) The applicant",
"95. The applicant admitted that she had not appealed against the October 2009 administrative decision regarding the temporary guardianship of her daughter. Nevertheless, she wished to emphasise that by the ruling of 23 December 2008 the temporary protective measures had been established and that at that time her parental rights had already been limited (see paragraphs 11 and 12 above). The applicant thus considered that any appeal against the temporary guardianship would have been futile. She also noted that despite the fact that she had not appealed against the administrative decision appointing the temporary guardian, she had taken other actions for her daughter to live with her – on 23 December 2009 she had started court proceedings regarding the child ’ s permanent place of residence (see paragraph 30 above). The applicant considered that a separate application to the court for residence had been one of the possible ways to cancel the decision to appoint a guardian for the girl.",
"96. As to the Government ’ s suggestion that the applicant should have started court proceedings for damages regarding her daughter ’ s non-return (see paragraph 94 above), the applicant reiterated that she had had limited financial resources and time to pursue those. Despite that, she had made claims and appealed to the courts regarding the essential issue related to her right to family life and her “goal to live with her daughter”.",
"2. The Court ’ s assessment",
"97. The Court recalls that by the Kaunas City Municipality director ’ s decision of 5 October 2009 the applicant ’ s daughter was taken into temporary guardianship (see paragraph 17 above). As correctly pointed out by the Government (see paragraph 92 in limine above), the applicant did not appeal against that decision. The Court has also held, as early as in 2003 (see, mutatis mutandis, Jankauskas v. Lithuania ( dec. ), no. 59304/00, 16 December 2003) that the administrative courts, which were created in Lithuania in 1999, are an effective remedy regarding complaints against actions of the State or municipal authorities. That being so, it cannot but find that the applicant has not exhausted the available domestic remedies in respect of her complaint concerning issuing of temporary guardianship in respect of her daughter. Accordingly, this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.",
"98. The Court next turns to the Government ’ s objection that the applicant could no longer claim to be a victim of Article 8 violation on account of the fact that in May 2012 the daughter had been returned to her (see paragraphs 67 and 93 above). The Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 81, ECHR 2012, and the case-law cited therein ). Such an acknowledgment is absent in the present case. The Court likewise held that the issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006 ‑ V ). In the instant case the applicant ’ s complaint is in fact that the State authorities did not effectively prevent N.V. ’ s efforts which delayed the execution of the Kėdainiai District Court ’ s judgment. Therefore, the applicant retains the status of a victim, and the Government ’ s objection must be dismissed.",
"99. The Court also considers that the Government ’ s remaining objections as to the applicant not having exhausted the domestic remedies (see paragraph 94 above) are intrinsically linked to the merits of her complaints about the State authorities ’ actions in the course of the court proceedings for her daughter ’ s residency ( also see paragraph 105 below ). It therefore joins these objections to the merits.",
"100. Lastly, the Court notes that the applicant ’ s complaints as to the State authorities ’ actions within the proceedings concerning her daughter ’ s return, including temporary protective measures, are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ arguments",
"(a) The applicant",
"101. In her application to the Court, lodged on 2 September 2011, the applicant complained that the civil proceedings concerning the restriction of her parental rights and custody in respect of her daughter had already been pending for two years and ten months (see paragraph 11 above), although it was still the court of first instance which had been examining her case. The applicant criticised the entire handling of her case and complained that the Lithuanian authorities had not returned her daughter to her, even though the criminal charges against the applicant had been dismissed and the persons concerned [N.V.] had exhausted all legal remedies to appeal against the decisions dismissing those charges. She also submitted that, given the fact that she had had limited opportunities to communicate with her daughter during the civil proceedings, the State had had to assure that the court proceedings would be as expedient as possible. However, that had not been the case.",
"102. The applicant further asserted that already from the beginning of the litigation concerning her parental rights – which had been affected as early as on 23 December 2008 (see paragraph 11 above) – there had been disproportion between her right to family life and the general interest of society. In her view, as no institution had established that she had assaulted her daughter or helped others to molest her, there had been no need to impose the temporary protective measures. Pointing to the circumstances when two of the individuals connected with the alleged sexual abuse had been shot (see paragraph 16 above), the applicant asseverated that although she personally had been provided with State protection, there had been no reason why she and her daughter could not live together.",
"103. As to her contact with her daughter, the two had already been separated on 19 March 2008, when a settlement agreement between her and D.K. had been approved by the Vilnius City First District Court, establishing that the girl would live with her father (see paragraph 8 above). Several sets of court proceedings had then followed, but their outcome had been that the applicant and her daughter had been apart for four years, until 17 May 2012. During that period the applicant and her daughter ’ s situation had been made harder by the fact that they had had limited opportunities to communicate. Even after the temporary protective measures had been varied on 27 April 2009 (see paragraph 12 above), the applicant and her daughter could not act freely – the meetings had been supervised by the childcare authorities and had lasted for only a limited time – a couple of hours per week. What was more, some of those meetings had taken place at the home of N.V., who personally, as well as her family members, had been unwilling to permit uninhibited contact between the mother and the daughter. The applicant also submitted that a number of times she had not been allowed to enter N.V. ’ s house, especially after the Kėdainiai District Court ’ s decision of 16 December 2011.",
"104. In her observations to the Court, submitted on 23 July 2012, the applicant further submitted that the State had not guaranteed her rights because it had not ensured a smooth handing over of her child to her. In particular, there had been no justifiable grounds for not implementing a court order regarding the daughter ’ s return, and the return had taken place only after a delay of five months. The applicant also disputed the Government ’ s defence that the case had been extraordinary, and that the biggest burden for the execution of the court decision to hand over the girl to her mother had rested on the guardian N.V. and her supporters (see paragraphs 108 and 109 below). For the applicant, and notwithstanding N.V. ’ s failure to comply with the bailiff ’ s demands, the State authorities, especially since they had been aware of the impact the case had had on Lithuanian society and the support that N.V. had among the Lithuanian people, had retained a duty to be prepared for the execution of the court decision. In that context the applicant pointed out that three months after the Kėdainiai District Court ’ s decision, on 22 March 2012, the court had given permission for the use of force for its execution ( see paragraph 60 above ), allowing the removal of obstacles hindering the girl being taken from N.V. ’ s home. After that decision had been issued, it had still taken almost two months for the child to be handed over to the applicant (see paragraph 67 above). The applicant indicated that when the officials had finally been prepared to implement the court order, it had taken them less than an hour to finish the operation, which showed that prior to this the State authorities had been passive. In sum, unjustified reasons such as outstanding public interest in the case, the ill will of the guardian N.V., and the authorities ’ possible fear of taking action had taken priority over the applicant ’ s right to respect for her family life.",
"105. The applicant lastly submitted that because of the turmoil surrounding the court proceedings neither the girl nor the applicant could live a normal social life in Lithuania. They had only had one choice, to change her name and leave the country.",
"(b) The Government",
"106. At the outset, the Government wished to set straight the facts of the case, since they saw the applicant ’ s grievance that she had been separated from her daughter for four years as to an extent misleading. The Government thus pointed out that by a court decision of 19 March 20 0 8 the applicant had voluntarily agreed that her child would not live with her (see paragraph 8 above). Afterwards, on 23 December 2008 temporary protective measures had been imposed on her in the case concerning the restriction of her parental rights in connection with the suspected molestation of her daughter and the applicant ’ s alleged involvement therein (see paragraph 11 above). The applicant, for her part, had started civil court proceedings for her daughter ’ s return only on 23 December 2009 (see paragraph 30 above). Afterwards, the Kėdainiai District Court decision of 16 December 2011 had created yet another legal situation when the child ’ s place of residence had been changed. However, in the situation prior to the latter decision one could not talk about the child ’ s “return” to the applicant. The Government thus considered that the applicant had mixed up all those proceedings, seemingly with the intention of making an impression that she had been separated from her daughter for a long time.",
"107. The Government noted that the applicant had retained the right to see her daughter throughout the period of various criminal and civil proceedings and that, taking into account the difficult situation, no excessive restrictions had been imposed on her ability to see her daughter and communicate with her. In that context the Government also pointed out that between 5 October and 17 December 2009 the applicant ’ s visits with the girl had not taken place because of the applicant. Likewise, the applicant had failed to appear at the meeting of 21 October 2009 organised by the Kaunas childcare authorities, to which she had been invited. For the Government, this meant that the applicant at that time had not shown much interest in her daughter ’ s situation.",
"The Government also disagreed with the applicant ’ s statements that while the child had been living with her temporary guardian, she had been able to see her daughter only in an “unfriendly environment”. In contrast to what had been claimed by the applicant, and at least until the Kėdainiai District Court ’ s decision of 16 December 2011, the temporary guardian had not been present at those meetings. As a result, and with the help of the childcare specialists and psychologists, the applicant had gradually rebuilt the capacity to maintain a close relationship with her daughter. After that court decision, and notwithstanding the fact that N.V. had refused to take the girl to the meetings with the applicant in a neutral location on the pretext that the girl had not wanted to leave the house, because of the childcare authorities ’ efforts and mediation, the applicant had continued seeing her daughter at N.V. ’ s house. Those meetings had taken place between December 2011 and March 2012, and the authorities had also provided other assistance to the applicant in order to facilitate her contact with the girl. In sum, the applicant had retained access to her daughter, and, taking the difficult situation into account, no excessive restrictions had been imposed on the applicant ’ s ability to see her child and to communicate with her.",
"108. Turning to the question of execution of the Kėdainiai District Court ’ s decision of 16 December 2011, the Government considered that the Lithuanian authorities had taken all possible steps in order to facilitate the execution of that court decision in order to hand over the child to the applicant. Firstly, the efforts of the domestic authorities had been properly coordinated and, above all, directed at the protection of the child ’ s interests and safety. Accordingly, all possible attempts had been made to encourage execution of the court ’ s judgment in good faith. However, the authorities ’ efforts had been in a large part hindered by the lack of cooperation on the side of the girl ’ s temporary guardian N.V.",
"109. In that context, the Government admitted with regret that the Lithuanian institutions had been faced with an exceptional challenge when executing the court decision for the girl ’ s transfer. The sensitive subject matter at issue itself, namely the sexual abuse of a minor, had caused highly elevated public interest. The course of the criminal proceedings concerning the alleged sexual abuse of the girl and the civil proceedings concerning the restriction of the applicant ’ s parental rights and residence had been closely observed by the media. A large part of Lithuanian society had been touched by the girl ’ s story and had expressed their support towards the girl ’ s temporary guardian in various ways, including spontaneous gatherings of crowds near her house. Speeches, concerts and other events had been organised. The crowds had also declared their discontent with the Kėdainiai District Court ’ s decision of 16 December 2011, and had objected to its execution. The case had had significant repercussions, and the national authorities had thus been placed in a unique situation when seeking to execute the court ’ s decision.",
"110. That being so, during the execution proceedings the authorities had nevertheless given the highest priority to the interests of the child, taking into account not only her right to live with her biological family and retain ties with her mother, but also the right to physical and emotional integrity and security. For those reasons, the authorities had first tried to achieve the execution in goodwill, seeking to reduce the inevitable emotional distress for the girl, and it had only been afterwards, when it had become clear that N.V. had had no intention of giving up the girl, that the authorities had applied force in executing the court decision. The Government also pointed out that the Lithuanian institutions which had participated in the execution of the court ’ s decision had not had prior experience with enforcement in such challenging situations as the one at issue. Likewise, this had been the first time when the newly elaborated procedure of handing over a child prescribed by the new wording of Article 764 of the Code of Civil Procedure (see paragraph 82 above) had been applied. The institutions had thus sought to duly cooperate and coordinate their actions, clarify their discretion in particular situations, and analyse the experience in order to be adequately prepared for possible similar situations in the future.",
"111. In the light of the above, the Government considered that certain delays in the execution of the court ’ s decision could not be regarded as disproportionate interference with the applicant ’ s right to respect for her family life, especially taking into account the efforts demonstrated by the domestic authorities in the execution process and while maintaining the applicant ’ s contact with her daughter. Furthermore, the bailiff had also taken measures against N.V., who had been fined for failing to obey the court decision. The Government also stated that adequate and necessary social and psychological support had been provided to the daughter and the applicant after the child had been handed to the applicant.",
"112. Lastly, the Government submitted that the domestic courts had showed diligence when assessing the relevant circumstances of the case, and that there had been no undue delay. In fact, the judicial examination of the case had been hindered by the numerous appeals lodged by the applicant and especially N.V., who had appealed against almost every procedural decision in the civil case.",
"2. The Court ’ s assessment",
"(a) General principles",
"113. The general principles on custody and contact rights were recently summarised in the case of Khusnutdinov and X. v. Russia (no. 76598/12, §§ 76 - 83, 18 December 2018) as follows:",
"“76. The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII).",
"77. Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see Glaser v. the United Kingdom, no. 32346/96, § 63, 19 September 2000).",
"78. In relation to the State ’ s obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children ’ s family (see Manic v. Lithuania, no. 46600/11, § 101, 13 January 2015, with further references).",
"79. In the context of both its negative and its positive obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole; in both contexts, the State enjoys a certain margin of appreciation (see Glaser, cited above, § 63). Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII, and Płaza v. Poland, no. 18830/07, § 71, 25 January 2011).",
"80. It follows that the national authorities ’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with other persons may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned is always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen, cited above, § 58; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 ‑ I; and Kosmopoulou v. Greece, no. 60457/00, § 45, 5 February 2004).",
"81. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin, cited above, § 64; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013 ).",
"82. Furthermore, while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, an applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references).",
"83. Lastly, the Court considers that in conducting its review in the context of Article 8, it may also have regard to the length of the local authority ’ s decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100). ”",
"114. The Court has also held that the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular, when deciding on custody matters, the Court has recognised that the authorities enjoy a wide margin of appreciation. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000 ‑ VIII; Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I; Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003 ‑ VIII, and Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003 ‑ VIII (extracts) ).",
"(b) Application to the present case",
"115. The Court notes, firstly, that by its very nature the tie between the applicant and her minor daughter comes within the notion of family life within the meaning of Article 8 of the Convention (see Gnahoré v. France, no. 40031/98, § 49, ECHR 2000 ‑ IX, with further references ). It must therefore be determined whether the State authorities acted in such a manner as to allow that bond to develop and took the necessary measures to reunite parent and child (see Kutzner, cited above, § 61).",
"i. As to the period from 23 December 2009 to 16 December 2011",
"116. The Court observes that although it took the State authorities two years – from December 2009 to December 2011 ( see paragraphs 30 and 38 above ) – to reach a court decision that the applicant ’ s daughter should be returned to her, this had been for uncontestably objective reasons. Firstly, nearly one year had to pass until in November 2010 the Regional Court upheld the prosecutor ’ s decision to discontinue the criminal investigation against the applicant (see paragraphs 24 and 25 above). Afterwards, and also on the basis of the applicant ’ s request lodged within the civil proceedings, expert examinations had to be performed to assist the Kėdainiai District Court to determine whether it was within the best interests of the child to be returned to her mother (see paragraphs 34 and 37 above). Once the experts had produced their report in October 2011, the Kėdainiai District Court concluded the case without undue delay, within two months. That being so, the Court cannot find that there were unjustifiable delays in the proceedings which were attributable to the Lithuanian authorities. To the contrary, they appear to have dealt with the proceedings with the requisite diligence.",
"117. Turning to the applicant ’ s grievance that she had none or only limited opportunities to communicate with her daughter during numerous legal proceedings, the Court notes that on 23 December 2008 the Kaunas City District Court had imposed temporary protective measures (see paragraph 11 above). However, it has no reason to doubt that such measures were imposed for, what was at that time, a valid reason – a pre-trial investigation had just been opened in which the applicant was suspected of having assisted child molesters in the sexual abuse of her daughter (see paragraph 9 above; see also Schaal v. Luxembourg, no. 51773/99, § 47, 18 February 2003, and Article 9 § 1 of the Convention on the Rights of the Child, cited in paragraph 87 above ). The Lithuanian courts placed the child ’ s best interests first, as is required by Article 8 of the Convention (see, most recently, Strand Lobben and Others v. Norway [GC], no. 37283/13, § 204, 10 September 2019 ) and national law (see paragraph 77 above).",
"118. Even so, the contact arrangement was soon revised by the court, and as of April 2009 the applicant was permitted to see her daughter at regular intervals, in order to facilitate her and her daughter ’ s relationship – as noted by the domestic courts (see paragraphs 12 - 14 above), as far as it was possible in the circumstances of this particular case whilst the criminal proceedings against the applicant and the civil litigation concerning her daughter ’ s place of residence were still pending. This contact order was maintained until the Kėdainiai District Court ’ s decision of 16 December 2011 (see paragraphs 40 in limine, 44 in limine and 45 above). The Court thus finds that at no stage of the civil proceedings for her daughter ’ s return was the applicant prohibited from being in contact with her child (see paragraph 32 above ). More importantly, the Court notes that the applicant had not claimed that she had been unable to have contact with her daughter because of the State authorities ’ actions or failure to act.",
"119. As to the applicant ’ s statements that she and the girl could not act freely during their meetings, the Court notes that since 2010 the applicant was provided with a psychological consultation before meetings with her daughter and thereafter her relationship with the girl changed and became warmer, the emotional ties between the two of them were strengthened (see paragraph 40 in fine above). Likewise, on the basis of the documents submitted by the parties, the Court considers that the childcare authorities were sufficiently proactive in monitoring the situation and assisting the courts (see paragraphs 12 and 14 in fine above). Similarly, after N.V. was appointed as temporary guardian of the girl, psychological support was provided to her, having the child ’ s best interests as the primary consideration (see paragraph 33 above).",
"120. In sum, as the Court finds on the facts before it, the proceedings leading to the Kėdainiai District Court ’ s decision of 16 December 2011 to return the child to her mother were conducted with the requisite diligence, and the measures taken concerning the applicant ’ s separation from and contact with her daughter were based on objective reasons.",
"ii. As to the period from 16 December 2011 to 17 May 2012",
"121. The Court reiterates that the applicant and her daughter ’ s reunion was ordered by the Kėdainiai District Court on 16 December 2011, which, in line with the Court ’ s case-law on the matter, also underlined that its decision had to be enforced without undue delay, in order to limit any possible harm to the applicant and her daughter ’ s relationship (see paragraphs 43 - 45 above; see also the Guidelines on Child Friendly Justice in paragraph 89 above ). It is also clear that on already the same day N.V. took measures, such as taking the girl out of school in order to keep her at home (see paragraphs 46 and 58 above), which made the authorities ’ task of reuniting the daughter and the mother more difficult. Notwithstanding this, the Court has had occasion to hold that lack of cooperation between separated parents is not a factor which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child which, depending on their nature and seriousness, may override those of the parent (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011, and the case-law cited therein ). The Court considers that the preceding considerations also apply to this case, where N.V. appears to have represented the interests of her brother, D.K., as she saw fit.",
"122. As to the bailiff ’ s alleged failure to enforce the court order for protective measures, the Court considers that this was caused by objective reasons. The first attempt to hand over the girl failed because N. V. did not take her to school (see paragraphs 46 and 56 above). The second attempt did not come to fruition because of the calamity at N.V. ’ s parents ’ home, when the bailiff was reluctant to use physical force to pull the child from her grandparents (see paragraph 62 above). The bailiff ’ s conclusion, which was based on the domestic court ’ s instruction (see paragraph 60 above) that physical force against the child was not a measure to be used in such situations and that another method of enforcement was necessary to protect the child ’ s interests, is tantamount to the Court ’ s position that any obligation to apply coercion to facilitate the reunion of a parent with a child must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, in particular the best interests of the child (see Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299 ‑ A ). Accordingly, the fact that until 23 March 2012 the authorities ’ efforts foundered does not automatically lead to the conclusion that they failed to comply with their positive obligations under Article 8 of the Convention (see G.B. v. Lithuania, no. 36137/13, § 93, 19 January 2016 ).",
"123. The Court also observes that subsequently the bailiff appears to have taken the most sophisticated measures – having coordinated the plan for the girl ’ s transfer with all the necessary authorities (police, psychologists, childcare specialists), under signature, and having listed the responsibility of each institution during the planned operation (see paragraphs 61, 63, 64 and 66 above). Eventually, the steps undertaken brought positive results and the girl was on 17 May 2012 reunited with the applicant (see paragraph 67 above). As noted by the Government, who have not been contradicted on this point by the applicant, psychological support was provided to the two of them afterwards (see paragraph 111 in fine above).",
"124. Furthermore, the Court gives weight to the fact that, when faced with resistance from N.V. (see also paragraph 46 above), the State did not remain a bystander to the situation. The bailiff thus requested that N.V. be fined for ignoring the Kėdainiai District Court ’ s decision, and that request received a serious response in the court, which acknowledged N.V. ’ s ignorance of the law and gave her a fine which could not be considered insignificant (see paragraph 57 above). She was also found to be at fault for providing the media with information about the girl ’ s inner emotional state, in breach of the child ’ s interests (see paragraph 42 above). Likewise, and although the applicant pleaded that the State had taken the public reaction which N.V. ’ s actions had caused to the applicant and her daughter light-heartedly, the Court is satisfied that a number of actions, including criminal prosecution, were pursued in respect of N.V. (see paragraphs 70 - 75 above) as well as her relatives (see paragraphs 68 and 69 above), which for the Court shows the State ’ s serious stance. In the light of these findings the Court also dismisses the Government ’ s objection that the applicant had not exhausted the domestic remedies in respect of her complaint concerning the State authorities ’ actions in the course of the court proceedings for her daughter ’ s residency (see paragraph 99 above).",
"125. Lastly, it is true that after the dispute between the applicant and N.V. escalated after the 16 December 2011 decision of the Kėdainiai District Court (see paragraph 46 above), the applicant was no longer able to meet her daughter in a neutral environment (see paragraph 58 above). Notwithstanding this, with the authorities ’ assistance, and at least until the unsuccessful attempt to return the girl on 23 March 2012, she could still see the child at N.V. ’ s home or that of N.V. ’ s parents, even if that environment was not without fault (see paragraphs 21, 62, 68 and 69 above). Afterwards, the authorities still continued pursuing any available avenues to enforce the applicant ’ s contact rights which could reasonably have been required in the very difficult situation at hand (see paragraph 55 above; also see Pascal v. Romania, no. 805/09, § § 85 and 88, 17 April 2012 ). The Court also notes that the childcare authorities were sufficiently proactive in monitoring the situation and also having discussed it with both the applicant and N.V. (see paragraphs 50 - 56 above; also see the Guidelines on Child Friendly Justice, as cited in paragraph 89 above).",
"126. Consequently, the Court finds that the domestic authorities, when executing the Kėdainiai District Court ’ s decision of 16 December 2011, again acted with the requisite diligence, this notwithstanding the fact that that decision had not been executed within the court prescribed fourteen days ’ time-limit.",
"iii. As to the applicant ’ s participation during both periods of the proceedings regarding her parental rights",
"127. Even if the applicant did not voice specific complaints in this regard, the Court notes that she, in person or through her lawyers, was present at a number of hearings where the merits of her civil claim for her daughter ’ s return, including the matters regarding her contact rights with her daughter, were discussed by the domestic courts (see paragraphs 12, 13 in fine, 14, 32, 34 - 36 and 38 above ). With the benefit of legal assistance, she had the opportunity to submit requests and evidence, present her arguments and comment on the other participants ’ submissions before the courts, both in writing and orally (see Khusnutdinov and X, cited above, § 92; see also Article 9 § 2 of the Convention on the Rights of the Child, cited in paragraph 87 above).",
"128. That being the case, the Court cannot but conclude that the applicant was thus placed in a position enabling her to put forward all arguments in favour of her being granted custody of the girl and she also had access to all the relevant information relied on by the courts. Eventually, the case regarding her right to live with her daughter was resolved in the applicant ’ s favour (see paragraphs 48 and 49 above). In addition, the child herself was heard by the investigators and by the court ‑ appointed experts (see paragraphs 19 - 21 and 24 above), the need to respect the views of the child having been highlighted inter alia by the United Nations Children Rights ’ Committee ( on this issue see, for example, G.B. v. Lithuania, cited above, § § 65 and 105 ) as well as by Articles 3 and 6 of the Convention on the Exercise of Children ’ s Rights, which, although it has not been ratified by Lithuania, nevertheless is a useful tool for the interpretation of relevant principles ( see paragraph 88 above, and N.Ts. and Others v. Georgia, no. 71776/12, § 76, 2 February 2016 ).",
"129. In these circumstances, and bearing in mind that as a general rule it is for the national courts to assess the evidence before them (see Sahin and Sommerfeld, both cited above, § § 73 and 71 respectively ), the Court is satisfied that the procedural requirements implicit in Article 8 of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide her with the requisite protection of her interests.",
"iv. Conclusion",
"130. In the light of the foregoing, the Court holds that the Lithuanian authorities did not fail to discharge their positive obligation to guarantee the applicant ’ s right to respect for her family life inasmuch as this concerns her admissible complaints under Article 8 of the Convention (see paragraph 100 above). There has consequently been no violation of that provision."
] |
84 | Cînța v. Romania | 18 February 2020 | This case concerned court-ordered restrictions on the applicant’s contact with his daughter. The applicant complained about the limited time allowed for contact with his daughter and the conditions placed on it. He also submitted that he had been discriminated against on the grounds of his health, notably his mental illness, in the setting of the contact rights. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention and a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8. It found in particular that the domestic decisions to restrict the applicant’s contact had been based partly on the fact that he had a mental illness. The courts had ordered that he only have contact twice a week in the presence of his estranged wife, with whom the child was to live. However, the courts had failed to carry out any meaningful assessment to explain why his mental health should be a reason to curtail his contact rights even though there had been no evidence to show he could not take care of his daughter. Nor had the courts properly examined allegations that the child would be unsafe in his care; shown in what way they had taken account of the child’s best interests; or considered alternative contact arrangements. The Court further considered that the fact that he suffered from a mental illness could not in itself justify treating him differently from other parents seeking contact with their children. His contacts rights had been restricted after the courts had made a distinction based on his mental health for which they had not provided relevant and sufficient reasons. In the present case, the applicant had made out a prima facie case of discrimination, which the respondent State had not been able to rebut. | Parental Rights | Parental authority, child custody and access rights | [
"1. The applicant was born in 1965 and lives in Baia Mare. He was represented before the Court by Ms I.-R. Muscan, a lawyer practising in Baia Mare.",
"2. The Government were represented by their Agent, most recently Ms S.-M. Teodoroiu, of the Ministry of Foreign Affairs.",
"3. The facts of the case, as submitted by the parties, may be summarised as follows.",
"4. In 2007 the applicant married Ms X. They had met earlier that year when they were both patients in the Cavnic psychiatric hospital. In 2014 the couple had a daughter, Y. They lived together until 14 June 2018 when X moved out of the family home and took Y with her. On 26 June 2018 X filed for divorce.",
"5. At the time of the couple ’ s separation, the applicant was not working and was receiving a disability pension. X was working as a school teacher and deputy-headmistress. At that time, she was no longer registered as suffering from mental illness.",
"6. Since the couple ’ s separation, X has opposed any contacts, be they direct or via telephone, between the applicant and the child. He was able to see his daughter on only one occasion, on 5 July 2018, for half an hour.",
"7. On 30 July 2018 the applicant lodged an action for an interim injunction ( ordonanţă preşedenţială ) with the Baia Mare District Court. He requested that, during the divorce proceedings, the child be returned to the family home to live with him, as she had done since her birth. Alternatively, he requested that the court establish a contact schedule so that he could spend time with the child in his home, every Tuesday and Thursday from 6 p.m. to 8 p.m. and every other week from 6 p.m. on Fridays to 6 p.m. on Sundays.",
"8. On 8 August 2018 X acquiesced to allow the applicant contact with their daughter but only on Tuesdays and Thursdays, in public places and in her presence. She further requested that the court set the child ’ s residence with her during the divorce proceedings and order the applicant to contribute to the child ’ s financial needs. X explained that she had left the family home with the child because the applicant, who suffered from paranoid schizophrenia, had been physically and psychologically aggressive towards her, sometimes even in their child ’ s presence. X claimed that the applicant had also been abusive towards their daughter, telling her on several occasions that he did not need her love. She also claimed that, because of the applicant ’ s illness, he had never been left alone with the child. Either she or the child ’ s maternal grandmother had always been present.",
"9. The District Court examined the parents ’ psychiatric records (the applicant ’ s most recent internment, at his wife ’ s request, having been from 6 to 25 April 2017 in the psychiatric ward of Sighetul Marmaţiei municipal hospital).",
"10. The court also heard evidence from the child ’ s grandmothers and X ’ s maternal aunt. The maternal aunt declared that, having known the applicant since he had married her niece, she had the impression that he had always tried to control his wife and to have the last word in any discussion. X ’ s mother declared that she had been taking care of Y in the applicant ’ s home since X had returned to work at the end of her maternity leave. When Y had reached the age of two, the applicant had forbidden her from having contact with the child, alleging that she had been “abusing” Y. She further declared that, in her opinion, the child would not be safe with her father, not even for a few days, because of his illness. The applicant ’ s mother declared that the applicant had been taking care of Y since her birth and the relationship between father and child had always been excellent. She had not witnessed or heard of any aggressive behaviour in the family.",
"11. In addition, the court received a report from the Baia Mare Directorate General for Social Welfare and Child Protection (“the child ‑ protection authority”) concerning the material conditions offered by each parent for raising the child. The child-protection authority conducted interviews with the parents and examined their domestic environments. It concluded as follows:",
"“Following the assessment undertaken, it is concluded that the parents are separated and the tensions between them make any civilised communication aimed at correctly handling the child ’ s situation impossible.",
"The child is healthy and well taken care of by the mother and the maternal grandmother. The child is four years old and has developed an attachment with all the adults in her life (parents, grandparents).",
"[The applicant] considers that he can offer the child better housing conditions, and a lot of love and affection, and for these reasons he requests that the child ’ s residence be set with him.",
"In [X] ’ s view, the father does not offer psycho-emotional safety for the child, because he does not admit his illness and does not take his medication.",
"The parents have been advised to put the child ’ s best interests above their anger and pride, and have been made aware of the importance of offering psycho-emotional comfort to the child in order to allow for a harmonious development of her personality.",
"In the light of the above findings, the court is requested to make its decision bearing in mind the best interests of the child.”",
"12. On 4 September 2018 the court, sitting in camera (the judge and the court clerk), interviewed Y. According to the interview report drafted by the court, Y told the judge that she and her mother had moved in with her grandmother because the applicant used to shout at her mother and sometimes at her. She liked living at her grandmother ’ s place because nobody shouted at her and everybody behaved nicely.",
"13. The District Court gave judgment on 4 September 2018. It set weekly contacts between the applicant and Y from 6 p.m. to 8 p.m. on Tuesdays and Thursdays only in public places and in the mother ’ s presence. It also set the child ’ s residence with her mother until the end of the divorce proceedings, and ordered the applicant to pay maintenance for his daughter. The relevant parts of the judgment read as follows:",
"“... the evidence in the file, that is the written evidence, the witnesses ’ statements, and the child-protection authority ’ s report, does not indicate any justified reason for prohibiting contact between the applicant and the child.",
"However, ... [in view of] the medical evidence in the file, which reveals the applicant ’ s chronic mental illness, as well as the witness statements and the child ’ s statement ... in order to protect the child ’ s interests, contacts must be limited and must take place in public in the mother ’ s presence.”",
"14. The applicant lodged an appeal with the Maramureş County Court, complaining mainly that the District Court had relied exclusively on his illness, in a subjective and partial manner. He had never been violent with his daughter and nothing in the file could prove that he represented a threat to her. He also denied having ever been violent towards his wife and explained that it had been X who had threatened him repeatedly that she would use his illness in order to get him committed to the psychiatric hospital and to take Y away from him. He also reiterated his request to have the child returned to their family home with him.",
"15. On 18 September 2018 the Baia Mare psychiatric hospital informed the court that in the past two years the applicant had taken his medication and had not suffered any episode of psychiatric decompensation caused by his illness.",
"16. In a final decision of 15 November 2018 the County Court dismissed the appeal. The relevant parts of the decision read as follows:",
"“In agreement with the first-instance court, the County Court notes that the medical evidence in the file, together with the remaining evidence – witness statements, correspondence and the father ’ s attitude towards the mother – justify temporarily setting the child ’ s residence with her mother, ordering the father to pay maintenance, and setting a limited contact schedule in the mother ’ s presence.",
"...",
"The child-protection authority ’ s reports have revealed that the current relationship between the parents makes any civilised communication impossible (a criminal complaint lodged in 2018 by [X] for the offence of threats is currently under examination); ... the child is emotionally attached to both parents.",
"In disagreement with [the applicant], the County Court finds that the first-instance court decision was not exclusively based on his diagnosis; it took into account all evidence in the file. It is to be noted that the father ’ s contact with his daughter was not forbidden, it was only limited temporarily because of his current state of health and his attitude towards the child and the mother; the conflictual situation generated by the divorce caused [the applicant] to exhibit unbalanced behaviour which is not centred in the child ’ s need to grow up in an environment free from tensions.",
"The fact that [the applicant] has not suffered any episode of decompensation is not in itself sufficient at this time to change the outcome.”"
] | [
"RELEVANT LEGAL FRAMEWORK",
"Civil Code",
"17. In accordance with Article 262 of the Civil Code (“the CC”), a child who does not live with one of the parents has the right to personal relations with the absent parent. The exercise of that right may only be limited in accordance with the law, for strong reasons ( motive temeinice ) and with consideration given to the child ’ s best interests.",
"18. Article 263 of the CC, entitled “the principle of the best interests of the child”, states that in taking any measure concerning a child ’ s rights, the authorities must be guided by the principle of the best interests of the child. Decisions adopted by the authorities in child-related matters must take into account the parents ’ wishes and interests, and must be rendered expeditiously.",
"19. Under Article 400 of the CC, the court which decides on the parents ’ divorce also sets the child ’ s residence with one of the parents, in the light of the child ’ s best interests. Article 401 of the CC provides that the parent with whom the child does not live has the right to personal relations with the child. The court deciding on the parents ’ divorce will decide on the manner in which that right will be exercised.",
"Code of Civil Procedure",
"20. Article 920 of the Code of Civil Procedure (“the CCP”), as in force at the relevant time, provided that during divorce proceedings, a court could order temporary measures by means of an interim injunction, concerning custody of children, alimony, child allowance and use of the family home. The domestic courts also award contact rights by means of an interim injunction during the divorce proceedings (see, mutatis mutandis, Cristian Cătălin Ungureanu v. Romania, no. 6221/14, § § 18 and 25, 4 September 2018).",
"21. Article 226 regulates as follows the manner in which witnesses who are minors are heard by the courts:",
"Article 226 Hearing of minors",
"“If, by law, a witness who is a minor is to be heard, the interview must take place in camera [ în camera de consiliu ]. In the light of the circumstances of the case, the court shall decide whether the child ’ s parents, legal guardian [ tutore ] or other persons should be present during the minor ’ s interview.”",
"Discrimination under Romanian law",
"22. Discrimination is prohibited by Article 16 of the Constitution. Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination (“the Anti-discrimination Ordinance”) comprises comprehensive regulations on the matter of discrimination.",
"23. In particular, Article 1 of the Anti-discrimination Ordinance proclaims that human dignity, the rights and freedom of the nationals of the State, and the free development of personality represent fundamental values and are protected by law. It then enumerates all the areas in which the principles of equality of treatment and of non-discrimination are ensured.",
"24. In Article 2 § 1 of the Anti-discrimination Ordinance, discrimination is defined as any difference in treatment, exclusion, restriction or preferential treatment based on race, nationality, ethnicity, language, religion, social origin, opinions, sex, sexual orientation, age, disability, illness, HIV infection, association with a disadvantaged group, or any other criteria, aimed at restricting or denying fundamental rights and freedoms.",
"Mental Health Act",
"25. The Mental Health Act (Law no. 487 of 11 July 2002 on mental health and the protection of people with mental disorders) provides for the rights of persons with mental disorders. In particular, under Article 41 of that Act, persons with mental disorders have the freedom to exercise their civil, political, economic, social and cultural rights guaranteed by the Universal Declaration of Human Rights and by other international conventions and treaties ratified by Romania. Article 42 states that any person with mental disorders has the right to be recognised as an individual and has the right to private life.",
"Relevant international materialsStandards on child protection",
"Standards on child protection",
"Standards on child protection",
"26. The relevant provisions of international law concerning child protection are described, in part, in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 134-36, 10 September 2019 ).",
"Standards on mental illness and mental disability",
"(a) Council of Europe materials",
"27. The European Social Charter contains specific rights for persons with disabilities, in particular Article 15 (right of persons with disabilities to independence, social integration and participation in the life of the community) and Article E (providing that the rights of the Charter shall be secured without discrimination on any grounds).",
"28. In April 2006, the Committee of Ministers adopted Recommendation Rec(2006)5 “the Council of Europe Action Plan to promote the rights and full participation of persons with disabilities in society: improving the quality of life of persons with disabilities in Europe 2006-2015”. The Recommendation included in its appendix the Council of Europe Action Plan 2006-2015. The fundamental goal of the Action Plan was to help member States reinforce anti-discriminatory and human-rights measures to enhance equal opportunities and independence of people with disabilities, to guarantee their freedom of choice, full citizenship and active participation in the life of the community, and to improve their quality of life.",
"29. The Action Plan was continued with the Council of Europe Disability Strategy 2017-2023 (“the Strategy”). The overall goal of the Strategy is to achieve equality, dignity and equal opportunities for persons with disabilities. The most relevant parts read as follows:",
"“52. Awareness raising, including through the education system, is a specific state obligation under the UNCRPD (Article 8). Persons with disabilities are still confronted with indifference, unacceptable attitudes and stereotypes based on existing prejudices, fear and distrust in their abilities. Action should be aimed at changing these negative attitudes and stereotypes through effective awareness raising policies, strategies and actions involving all relevant stakeholders, including the media.",
"53. Discriminatory attitudes and behaviour, stigmatisation and their damaging or harmful consequences on persons with disabilities must be countered by accessible and objective information on ability as opposed to inability. This includes disabilities and the barriers in society in order to promote a better understanding of the needs and fulfilment of rights of persons with disabilities and their inclusion in all areas of life.”",
"(b) United Nation materials",
"30. The relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which was ratified by Romania on 31 January 2011, provides as follows:",
"“Article 1 Purpose",
"The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.",
"...",
"Article 2 Definitions",
"For the purposes of the present Convention:",
"...",
"“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;",
"...",
"Article 3 General principles",
"The principles of the present Convention shall be:",
"( a ) Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons;",
"( b ) Non-discrimination;",
"( c ) Full and effective participation and inclusion in society;",
"...",
"Article 4 General obligations",
"1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:",
"...",
"Article 5 Equality and non-discrimination",
"1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.",
"2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.",
"...",
"Article 8 Awareness-raising",
"1. States Parties undertake to adopt immediate, effective and appropriate measures:",
"(a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;",
"(b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;",
"...",
"Article 12 Equal recognition before the law",
"1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.",
"...",
"Article 22 Respect for privacy",
"1. No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.",
"2. States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others.",
"Article 23 Respect for home and the family",
"1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:",
"(a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;",
"(b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;",
"(c) Persons with disabilities, including children, retain their fertility on an equal basis with others.",
"2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.",
"3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.",
"4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.",
"...”",
"31. In addition, the UN Committee on the Rights of Persons with Disabilities (“the Committee”) issued several General Comments on the interpretation of the CRPD. Notably, in General Comment No. 1 (2014) on equal recognition before the law (issued on 11 April 2014), the Committee interpreted the normative content of Article 12 as follows:",
"“11. Article 12, paragraph 1, reaffirms the right of persons with disabilities to be recognized as persons before the law. This guarantees that every human being is respected as a person possessing legal personality, which is a prerequisite for the recognition of a person ’ s legal capacity.”",
"32. On 26 April 2018 the Committee issued General Comment No. 6 (2018) on equality and non-discrimination. It reiterated, among other things, that persons with disabilities should be acknowledged as full subjects of rights and as rights holders. The relevant provisions read as follows:",
"“II. Equality for and non-discrimination against persons with disabilities in international law",
"...",
"7. Equality and non-discrimination are at the heart of the Convention and evoked consistently throughout its substantive articles with the repeated use of the wording “on an equal basis with others”, which links all substantive rights of the Convention to the non-discrimination principle. Dignity, integrity and equality of the person have been denied to those with actual or perceived impairments. Discrimination has occurred and continues to occur, including in brutal forms such as non-consensual and/or forced systematic sterilizations and medical or hormone-based interventions (e.g. lobotomy or the Ashley treatment), forced drugging and forced electroshocks, confinement, systematic murder labelled “euthanasia”, forced and coerced abortion, denied access to health care, and mutilation and trafficking in body parts, particularly of persons with albinism.",
"...",
"III. The human rights model of disability and inclusive equality",
"...",
"9. The human rights model of disability recognizes that disability is a social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights. It acknowledges that disability is one of several layers of identity. Hence, disability laws and policies must take the diversity of persons with disabilities into account. It also recognizes that human rights are interdependent, interrelated and indivisible.",
"...",
"11. Inclusive equality is a new model of equality developed throughout the Convention. It embraces a substantive model of equality and extends and elaborates on the content of equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity. The Convention is based on inclusive equality.",
"...",
"VI. General obligations of States parties under the Convention relating to non ‑ discrimination and equality",
"...",
"31. The effective enjoyment of the rights to equality and non-discrimination calls for the adoption of enforcement measures, such as: ...",
"(e) Specific rules relating to evidence and proof to ensure that stereotyped attitudes about the capacity of persons with disabilities do not result in victims of discrimination being inhibited in obtaining redress;",
"...",
"VII. Relationship with other specific articles of the Convention",
"...",
"C. Article 8 on awareness-raising",
"39. Discrimination cannot be combated without awareness-raising among all sectors of government and society. Thus, any non-discrimination and equality measure must be accompanied by adequate awareness-raising measures and measures to change or abolish compounded pejorative disability stereotypes and negative attitudes. In addition, violence, harmful practices and prejudices must be tackled by awareness-raising campaigns. States parties should undertake measures to encourage, inter alia, the media to portray persons with disabilities in a manner consistent with the purpose of the Convention and to modify harmful views of persons with disabilities, such as those that portray them unrealistically as being dangerous to themselves and others, or sufferers and dependent objects of care without autonomy who are unproductive economic and social burdens to society.",
"...",
"J. Article 23 on respect for home and the family",
"61. Persons with disabilities often face discrimination in the exercise of their right to marry or their parental and family rights owing to discriminatory laws and policies, and administrative measures. Parents with disabilities are frequently seen as inadequate or unable to take care of their children. Separation of a child from his or her parents based on the disability of the child or parents or both is discrimination and in violation of article 23.",
"...”",
"33. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted by the UN General Assembly on 4 March 1994. The relevant parts read as follows:",
"“Equalization of opportunities",
"24. The term \"equalization of opportunities\" means the process through which the various systems of society and the environment, such as services, activities, information and documentation, are made available to all, particularly to persons with disabilities.",
"25. The principle of equal rights implies that the needs of each and every individual are of equal importance, that those needs must be made the basis for the planning of societies and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation.",
"...",
"Rule 9. Family life and personal integrity",
"States should promote the full participation of persons with disabilities in family life. They should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood.",
"1. Persons with disabilities should be enabled to live with their families. States should encourage the inclusion in family counselling of appropriate modules regarding disability and its effects on family life. Respite ‑ care and attendant ‑ care services should be made available to families which include a person with disabilities. States should remove all unnecessary obstacles to persons who want to foster or adopt a child or adult with disabilities.",
"2. Persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood. Taking into account that persons with disabilities may experience difficulties in getting married and setting up a family, States should encourage the availability of appropriate counselling. Persons with disabilities must have the same access as others to family ‑ planning methods, as well as to information in accessible form on the sexual functioning of their bodies.",
"3. States should promote measures to change negative attitudes towards marriage, sexuality and parenthood of persons with disabilities, especially of girls and women with disabilities, which still prevail in society. The media should be encouraged to play an important role in removing such negative attitudes.",
"...”",
"(c) World Health Organisation",
"34. In 1996, the World Health Organisation adopted Guidelines for the Promotion of Human Rights of Persons with Mental Disorders. The relevant parts read as follows:",
"“4. There shall be no discrimination on the grounds of mental illness. ‘ Discrimination ’ means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. ...",
"5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.”",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"35. The applicant complained about the duration and conditions of the contact rights. He argued that the contact schedule did not allow him to maintain and develop a personal relationship with his daughter and to participate effectively in her education, thus breaching his right to respect for his family life, as provided for in Article 8 of the Convention, which, in so far as relevant, reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”",
"Admissibility",
"36. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties ’ observations",
"The parties ’ observations",
"The parties ’ observations",
"(a) The applicant",
"37. The applicant reiterated that the contact schedule limited his time with his daughter to two two-hourly meetings per week, in the mother ’ s presence. He argued that that arrangement did not allow for any meaningful exchanges to take place between him and his child. The meetings took place in the evening, when the child was already tired. Moreover, the meetings invariably ended with him and his wife arguing about their divorce. He considered that that arrangement was harmful for the mental health of both the child and himself.",
"(b) The Government",
"38. The Government acknowledged that the relations between the applicant and his daughter constituted family life and that the contact schedule represented an interference with that right. They argued, however, that that interference was in accordance with the law, notably Articles 400 and 401 of the CC (see paragraph 19 above), as well as Article 920 of the CCP (see paragraph 20 above). It pursued a legitimate aim, notably the protection of the rights of others, which called for the protection of the child ’ s best interests.",
"39. The Government also argued that the interference was proportionate to the legitimate aim pursued. The domestic courts had assessed the parties ’ situation, had taken into account not only the applicant ’ s illness but also his aggressive behaviour, and had relied on the evidence in the file. Moreover, the courts had acted rapidly. Consequently, the Government contended that the restriction of the applicant ’ s right remained within the scope of the State ’ s margin of appreciation.",
"The Court ’ s assessment",
"(a) General principles",
"40. The relevant principles concerning interference with the right to respect for family life are summarised in Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202-04, 10 September 2019 ):",
"“202. The first paragraph of Article 8 of the Convention guarantees to everyone the right to respect for his or her family life. As is well established in the Court ’ s case ‑ law, the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by this provision. Any such interference constitutes a violation of this Article unless it is ‘ in accordance with the law ’, pursues an aim or aims that is or are legitimate under its second paragraph and can be regarded as ‘ necessary in a democratic society ’ (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII; and Johansen [ v. Norway, 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III], § 52).",
"203. In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli [ v. Italy [GC], no. 25358/12, 24 January 2017], § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (ibid., § 181).",
"204. In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child ’ s interests must come before all other considerations (see Jovanovic [ v. Sweden, no. 10592/12, 22 October 2015], § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX).”",
"41. In addition, the Court reiterates that if a restriction on fundamental rights applies to someone belonging to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as the mentally disabled, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion (see, in the context of a restriction of the electoral rights of a person diagnosed with manic depression and placed under partial guardianship, Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, with further references).",
"42. In the context of its examination of the present case, the Court does not propose to substitute its own assessment for that of the domestic courts. Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013, with further references).",
"(b) Application of those principles to the facts of the case",
"43. It is common ground between the parties, and the Court finds it unequivocally established, that the decisions taken by the domestic courts concerning the applicant ’ s contact with his child (see paragraphs 13 and 16 above) entailed an interference with his right to respect for his family life under the first paragraph of Article 8.",
"44. The Court further accepts that those decisions were taken in accordance with the law (see paragraphs 19 and 20 above) and pursued a legitimate aim, namely the protection of the rights of others.",
"45. The interference thus fulfilled two of the three conditions for justification set out in the second paragraph of Article 8 (see, mutatis mutandis, Strand Lobben, cited above, § 214). The dispute in the present case relates to the third condition: whether the interference was “necessary in a democratic society”.",
"46. On this point, the Court observes that the domestic courts, in particular the District Court, did not find that the evidence in the domestic file called for a prohibition on contact between the applicant and Y. The circumstances of the present case are different from those in S.S. v. Slovenia ( no. 40938/16, § 99, 30 October 2018), where the Court found that the withdrawal of the applicant ’ s parental rights had not been based on her psychiatric diagnosis, but on her consequent inability to take care of her child, which had been confirmed by all the expert reports produced in the domestic proceedings. In the present case, the Court finds that no evidence was produced to support the allegation that the applicant was unable to care for his daughter. It also notes that the child-protection authority, which interviewed both parents, did not make such assertions in its report, but merely recommended that the court take into consideration the child ’ s best interests (see paragraph 11 above). The Court does not find, in the domestic courts ’ decisions, any reasoning that would allow it to conclude that X ’ s allegations as to the applicant ’ s inability to care for his child (see paragraph 8 in fine above) had been sufficiently explored by the domestic courts (see, mutatis mutandis, X v. Latvia, cited above, §§ 102 and 106 in fine ).",
"47. Notwithstanding the lack of evidence of his inability to take care of Y, the domestic courts restricted the applicant ’ s contact rights with his daughter. In so doing, they relied, at least partly, on the fact that he suffered from a mental illness (see paragraphs 13 and 16 above). However, they did not give any concrete indication of how that fact represented a threat for Y.",
"48. The Court is mindful of the fact that the domestic courts had at their disposal a letter from the psychiatric hospital indicating that the applicant had been taking his medication uninterruptedly and that he had not suffered any episode of psychiatric decompensation caused by his mental illness in the recent past (see paragraphs 15 and 16 above). It also observes that the child ‑ protection authority found that Y had developed an attachment to all of the adults in her life, including the applicant, and did not mention in its report any abuse that he might have committed in respect of his daughter (see paragraph 11 above). In this connection, the Court cannot find, in the domestic decisions, any objective element that would substantiate the allegations that the applicant ’ s mental disorder represented a threat for his child.",
"49. More importantly, the Court cannot see what evidence the applicant could have adduced to prove to the domestic courts that his mental condition posed no danger to his daughter ’ s safety (see, mutatis mutandis, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 111, 29 March 2016).",
"50. In this regard, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts (see the case ‑ law cited in paragraph 42 above). The task of evaluating the concrete situation falls in the first instance to the national authorities of the respondent State, which have, inter alia, the benefit of direct contact with the interested parties. However, the Court cannot but note that in assessing the applicant ’ s mental health the courts did not rely on any recent expert evaluation.",
"51. While it would generally be for the domestic authorities to decide whether expert reports were needed (see, mutatis mutandis, Strand Lobben, cited above, § 223), the Court considers that the lack of such reports concerning the applicant ’ s mental condition at the time the courts examined his action substantially limited the factual assessment of his caring skills, vulnerability and mental state at the material time.",
"52. Moreover, the Court cannot find any elements in the domestic courts ’ decisions that would explain how those courts had established or assessed the child ’ s best interests. For instance, while acknowledging that the situation between the parents was tense at that time (see paragraph 16 above), the domestic courts attached no particular importance to that element in setting the contact schedule. It is thus unclear whether the courts considered and tried to mitigate the potential distress the child might suffer if her only contact with her father took place in both parents ’ presence, despite their ongoing conflicts. The Court cannot find any arguments in the domestic decisions indicating the benefits for the child of such a contact arrangement. The applicant ’ s submissions confirmed that rather than being a time of meaningful exchanges between father and child, the contact sessions ended in arguments between the adults (see paragraph 37 above).",
"53. Furthermore, the Court cannot find any indication that the courts sufficiently explored the allegations that the child had suffered at the hands of her father (see paragraph 12 above). It notes that Y was interviewed by the judge in camera, without an expert psychologist from the child ‑ protection authority being present. It is not clear from the court decisions to what extent the child ’ s allegations of negative behaviour on the part of her father were given credit and, if credit was given, how the contact schedule would have taken that threat into account.",
"54. On this point, the Court observes that domestic law prohibits in absolute terms physical punishment, as well as humiliating or degrading treatment of children (see D.M.D. v. Romania, no. 23022/1 3, § 21, 3 October 2017). Consequently, the assessment – or lack thereof – of the threat to Y seems to run counter to the very prohibition of domestic abuse against children and casts doubt on the decision-making process.",
"55. The Court also observes that no alternative means have been explored by the domestic authorities, such as, for example, supervised contacts involving the child- protection authority. In this regard, the Court reiterates that the primary role of the child-protection authority is to facilitate contact and negotiate solutions between the parties concerned, with a view to promoting the child ’ s best interests. Consequently, the courts could have involved the child-protection authority in the proceedings (see, in contrast, S.S. v. Slovenia, cited above, § 91).",
"56. The Court notes that the domestic courts acted with expedition as required in cases concerning rights of children (see, mutatis mutandis, Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 127, 1 December 2009, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 ‑ I): the interim proceedings started on 30 July 2018 and ended three and a half months later, on 15 November 2018 (see paragraphs 7 and 16 above). However, the promptness of the proceedings should not come at the expense of the assessment of all relevant evidence by the courts.",
"57. In the light of the foregoing, the Court considers that the decision ‑ making process leading to the impugned decision of 15 November 2018 (see paragraph 16 above) was not conducted so as to ensure that the applicant ’ s current state of health was properly assessed and that all views and interests were duly taken into account (see paragraph 42 above, and, mutatis mutandis, Strand Lobben, § 225, and X v. Latvia, § 119, both cited above). The Court is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.",
"58. For these reasons, the Court concludes that there has been a violation of Article 8 of the Convention in respect of the applicant.",
"ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8",
"59. The applicant complained that he had been discriminated against on the grounds of his health, notably his mental illness, in the setting of contact rights with his child. He relied on Article 14 of the Convention, taken together with Article 8, which the applicant also invoked in substance. Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"Admissibility",
"60. The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018, with further references).",
"61. The Court has found that the domestic decisions limiting the applicant ’ s contact with his daughter amounted to an interference with his right to respect for his family life under the first paragraph of Article 8 (see paragraph 43 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.",
"62. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties ’ observations",
"The parties ’ observations",
"The parties ’ observations",
"(a) The applicant",
"63. The applicant argued that he had been placed in a less favourable situation than a person without a mental illness. Because of his condition he was considered to represent an inherent danger to his child, without any assessment of the concrete situation, the evolution of his illness or its symptoms.",
"(b) The Government",
"64. The Government mainly argued that the domestic courts had not treated the applicant differently from any other person, including his wife. They had assessed both parents ’ mental capacities to raise the child. The main reasons why the courts had limited the applicant ’ s contacts with the child had been the child ’ s best interests, having taken into account the applicant ’ s emotional state, his physical and psychological aggressiveness towards his wife, his unbalanced behaviour and the conflictual environment generated by the divorce proceedings.",
"The Court ’ s assessment",
"(a) General principles",
"65. The relevant principles established under Article 14 of the Convention have been recently reiterated in Molla Sali (cited above, §§ 133 ‑ 37):",
"“133. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see, among many other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012; X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013; Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, 24 January 2017, and Fábián [ v. Hungary [GC], no. 78117/13, 5 September 2017], § 113). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical.",
"134. However, not every difference in treatment will amount to a violation of Article 14. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián, cited above, § 113 and the references therein). In this context, the Court reiterates that the words “other status” have generally been given a wide meaning in its case-law (see Carson and Others [ v. the United Kingdom [GC], no. 42184/05, ECHR 2010], § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v. the United Kingdom, no. 7205/07, §§ 56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants ’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children ’ s place of residence (see Efe v. Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person ’ s status or protected characteristics (see Guberina v. Croatia, no. 23682/13, § 78, ECHR 2016 and Škorjanec v. Croatia, no. 25536/14, § 55, 28 March 2017 and also Weller v. Hungary, no. 44399/05, § 37, 31 March 2009).",
"135. The Court also reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it ‘ has no objective and reasonable justification ’, that is, if it does not pursue a “legitimate aim” or if there is not a ‘ reasonable relationship of proportionality ’ between the means employed and the aim sought to be realised (see Fabris [ v. France [GC], no. 16574/08, ECHR 2013 (extracts)], § 56).",
"136. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).",
"137. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the latter was justified (see Khamtokhu and Aksenchik, cited above, § 65; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, [ECHR 2007 ‑ IV]).”",
"66. Furthermore, the Court has found that a distinction made on account of an individual ’ s health status should be covered – either as a disability or a form thereof – by the term “other status” in the text of Article 14 of the Convention (see, mutatis mutandis, Kiyutin v. Russia, no. 2700/10, § 57, ECHR 2011, as well as Guberina, cited above, § 76, with further references, and Çam v. Turkey, no. 51500/08, § 69, 23 February 2016 ).",
"(b) Application of those principles to the present case",
"67. Turning to the facts of the present case, the Court notes that the applicant ’ s mental illness featured in the reasoning of both domestic decisions concerning the contact arrangements with his daughter (see paragraphs 13 and 16 above).",
"68. At the outset, the Court accepts that mental illness may be a relevant factor to be taken into account when assessing parents ’ capability of caring for their child (see, mutatis mutandis, S.S. v. Slovenia, cited above, § 95, and K. and T. v. Finland [GC], no. 25702/94, § 167, ECHR 2001 ‑ VII). Therefore the fact that the applicant ’ s mental health featured in the courts ’ assessment is to be expected and does not, as such, raise an issue under Article 14 of the Convention. However, relying on mental illness as the decisive element or even as one element among others may amount to discrimination when, in the specific circumstances of the case, the mental illness does not have a bearing on the parents ’ ability to take care of the child. In the present case, although the applicant ’ s mental illness was not the only element taken into account by the courts, it was present at all stages of the decision- making process (see paragraphs 13 and 16 above).",
"69. The Court concludes that the influence of the applicant ’ s mental illness on the assessment of his application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to limit his contact with Y (see, mutatis mutandis, and in the ambit of alleged discrimination on the basis of sexual orientation, E.B. v. France [GC], no. 43546/02, §§ 88-89, 22 January 2008).",
"70. The applicant therefore suffered a difference in treatment from other parents seeking contact with their estranged children. This difference was based on his mental health, a ground which is covered by “other status” (see paragraph 66 above).",
"71. Furthermore, the Court reiterates that it has found, in assessing the applicant ’ s complaint under Article 8 of the Convention, that the domestic decisions limiting his contact with his child had pursued a legitimate aim, namely the protection of the rights of others (see paragraph 44 above). It sees no reason to find otherwise in the context of Article 14.",
"72. Consequently, it remains to be established whether the difference in treatment was justified (see the case-law quoted in paragraph 65 above).",
"73. In accordance with the principle of subsidiarity, it is not for the Court to substitute itself for the domestic authorities and to decide whether the applicant ’ s mental illness had impaired his ability to take care of Y. The Court must review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, mutatis mutandis, K. and T. v. Finland, cited above, § 154). In other words, it must examine whether the domestic authorities provided sufficient reasons for taking the applicant ’ s mental illness into account in their assessment.",
"74. In its examination of the complaint raised under Article 8 of the Convention, the Court has concluded that the reliance on the applicant ’ s mental illness was not accompanied by a genuine domestic assessment of his current situation (see paragraph 57 above). In fact, there is nothing in the domestic courts ’ decisions that indicates to the Court the risk the applicant supposedly posed for his child. Nor was there a genuine assessment of the allegations that he had exhibited negative behaviour towards Y (see paragraphs 53-54 above). The Court cannot but conclude that the applicant was perceived as a threat because of his mental illness without further consideration to the concrete circumstances of the case and the family situation. In this respect, the case differs from the situation examined by the Court in S.S. v. Slovenia, where the applicant was divested of her parental rights not based on her psychiatric diagnosis, but on her consequent inability to take care of the child, which had been confirmed by all the expert reports produced in the proceedings (see S.S. v. Slovenia, cited above, §§ 99 and 108, as well as paragraph 46 above).",
"75. On this point, the Court also notes that the domestic legislation recognises the right to private life and the free exercise of all civil rights to persons with mental disorders (see paragraph 25 above). Moreover, the CRPD, to which the respondent State is party, recognises persons with disabilities as full subjects of rights and as rights holders (see paragraphs 30 and 32 above). This is also the case for any person suffering from mental illness.",
"76. The Court notes that the international community has consistently strived for better and more coherent protection for the rights of persons with mental illness and mental disabilities. The international standards and recommendations (see paragraphs 27 to 34 above) encourage respect for equality, dignity and equal opportunities for persons with mental disabilities. Of particular relevance for the facts of the present case, mentally-ill persons must receive appropriate assistance from the State in the performance of their child ‑ rearing responsibilities, and children must not be separated from their parents without a proper judicial review of the matter by the competent authorities (see paragraph 30 above).",
"77. In its own case-law, the Court has also recognised that mentally-ill persons represented a vulnerable group whose rights required special consideration from the State authorities (see paragraph 41 above, as well as B. v. Romania (no. 2), no. 1285/03, §§ 86 and 114, 19 February 2013, and S.S. v. Slovenia, cited above, § 84 ).",
"78. The Court reiterates having found that the domestic courts had not properly assessed the applicant ’ s mental health (see paragraph 57 above). Moreover, the Court does not find, in the domestic decisions, any element allowing it to determine whether the applicant ’ s mental health was a relevant issue to be considered (see paragraph 47 above). In this vein, and notwithstanding the principle of subsidiarity (see paragraph 73 above), the Court considers that the fact that the applicant suffered from a mental illness cannot in itself justify treating him differently from other parents seeking contact with their children. In particular, the Court notes that at the time the domestic decisions were taken, the applicant had been taking his medication regularly and for the previous two years, there had been no episodes of psychiatric decompensation caused by his illness (see paragraph 15 above). Consequently, the Court concludes that in restricting the applicant ’ s contact with his child, the domestic courts made a distinction based on his mental health for which they did not provide relevant and sufficient reasons.",
"79. In these circumstances, the Court can accept that a prima facie case of discrimination has been established. The burden then shifts to the respondent State to reject the basis of the prima facie case, or to provide a justification for it. The respondent State must also convincingly show that the difference in treatment was not discriminatory, that is to say that the applicant ’ s contact with his child was not restricted on discriminatory grounds, but rather that his mental illness had indeed impaired his ability to take care of his child or that there were other reasonable grounds for such a restriction. Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case, it would be extremely difficult in practice for the applicant to prove discrimination without such a shift in the burden of proof (see, mutatis mutandis, D.H. and Others v. the Czech Republic, cited above, § 189).",
"80. However, in view of the above considerations, the Court concludes that the respondent State did not bring forward convincing reasons such as to rebut the presumption of discrimination against the applicant on the grounds of his mental health (see paragraph 64 above).",
"81. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 8.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"82. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"83. The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage.",
"84. The Government considered the claim to be excessive and argued that the finding of a violation should constitute sufficient just satisfaction.",
"85. The Court considers that the applicant must have sustained non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.",
"Costs and expenses",
"86. The applicant did not make any claim for costs and expenses.",
"87. Consequently, the Court is not called upon to make an award under this head.",
"Default interest",
"88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
85 | Y.I. v. Russia | 25 February 2020 | This case concerned the applicant’s complaint about being deprived of her parental authority in respect of her three children because she was a drug addict. Drug addiction is a ground for removing parental authority under the Russian Family Code, and entailed her losing all contact rights. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Russian authorities had failed to show that removing the applicant’s parental authority had been the most appropriate option in the children’s best interests and that the measure had therefore been disproportionate The Court found in particular that the national courts had not sufficiently justified taking such a drastic measure, even though there were less radical solutions available under domestic law. Nor had they taken into consideration that the applicant had no history of neglecting her children, had started rehabilitation and had not apparently been given any warnings about or support for her drug problems. | Parental Rights | Parental authority, child custody and access rights | [
"1. The applicant was born in 1980 and lives in Moscow. She was represented by Mr M. Golichenko, a lawyer practising in Balashikha.",
"2. The Government were represented by Mr G. Matyushkin, Representative of the Russian Government before the European Court of Human Rights, and then by Mr M. Galperin, his successor in that office.",
"3. The facts of the case, as submitted by the parties, may be summarised as follows.",
"4. The applicant is the biological mother of I., born in 1999, A., born in 2011, and Al., born in 2012. At the material time, she was living with her three children and her mother, Ms P., in a two-room flat. She appears to have been taking opiate drugs from 2004 onwards, and suffered from an opiate addiction.",
"The applicant ’ s arrest and CONVICTION AND the removal of her children",
"5. At 5.45 a.m. on 8 October 2013 the police arrested the applicant and Mr K., her partner and the biological father of A. and Al., at her home address, on suspicion of being involved in drug trafficking. The applicant ’ s three children were at home at the time. The police took the applicant to a police station, where she remained for at least four hours. She was then released, having given an undertaking not to leave a specified location. During that period the applicant ’ s children had been at home on their own, as the applicant ’ s mother had been visiting her relatives in another region.",
"6. On 8 October 2013 a police officer interviewed the applicant. She stated, in particular, that she had started taking drugs in 2004. Initially, she had taken two types of psychotropic medicine, which she had mixed together for injections. She had stopped taking drugs in 2010 before giving birth to her two youngest children. She had then relapsed and, for about the past month, had been taking heroin. She also stated that she had regularly let her acquaintances take drugs in her kitchen.",
"7. At 10 a.m. on the same date, when the applicant was at home, a police officer for juvenile affairs ( инспектор по делам несовершеннолетних ) arrived. He drew up a report stating that the applicant had committed an administrative offence as she had failed duly to fulfil her parental obligations in respect of her three minor children and had been taking drugs. He also drew up three more reports stating that the children had been left unattended. Later that day, I. was taken to a children ’ s home, and A. and Al. were taken to a children ’ s hospital.",
"8. On the same date the applicant underwent a medical examination, which confirmed that she was in a state of intoxication caused by morphine and codeine.",
"9. On the same date the police for juvenile affairs sent the above ‑ mentioned reports to the Khovrino district authority ( Администрация муниципального округа Ховрино ) with a request that proceedings to deprive the applicant of her parental authority in respect of I., A. and Al. be initiated.",
"10. On 18 October 2013 I. was taken to stay with Mr Is., his father.",
"11. By decisions of 23 October 2013 the Khovrino district authority ordered that A. and Al. be placed in public care, as children left without parental care. On 25 October 2013 A. and Al. were placed in a children ’ s home.",
"12. On 17 January 2014, as upheld on appeal on 14 April 2014, the domestic courts deprived the applicant of her parental authority in respect of her three children (see paragraphs 34 - 48 below).",
"13. On 28 April 2014 the Golovinskiy District Court of Moscow found the applicant guilty of drug trafficking and sentenced her to six years ’ imprisonment. She was arrested in the court room after the judgment had been pronounced.",
"14. According to the Government, on 10 June 2014 A. and Al. were transferred to a foster family, where they have remained since that date.",
"The applicant ’ s contact with her children following their removal",
"15. In the applicant ’ s submission, prior to her conviction, she had regularly visited A. and Al. in the children ’ s home at least once a week.",
"16. According to the reports drawn up by staff at the children ’ s hospital and children ’ s home, A. and Al. missed their mother. In particular, Al. would wake up during the night, weeping and calling for her “mum”. A. would often ask where his mother was and when she would take him home.",
"17. It is unclear whether the applicant ever saw her eldest son I. following his removal.",
"Inspection of the applicant ’ s living conditions",
"18. On 11 October and 18 November 2013 the Khovrino district authorities inspected the living conditions at the applicant ’ s home address.",
"19. The report of 11 October 2013 stated that the flat had the necessary furniture and domestic appliances. It had two rooms: one measuring 10.4 sq. m, which was occupied by Ms P., the applicant ’ s mother, who had been visiting relatives in another region of Russia at that point in time, and another measuring 18.7 sq. m, which was shared by the applicant and her three children. Each of the children had a separate sleeping place. The room was stuffy, as it was not properly ventilated. It was equipped with chests of drawers, a dining table with a desktop computer on it, an office chair and a linen chest. There were empty plastic bottles, ashtrays with cigarette butts and a washing up bowl on the floor. Sufficient food supplies were found in the kitchen and in the refrigerator. The report mentioned that the applicant had been present during the inspection. She had remained lying on a sofa, crying and smoking, and blamed herself for the recent events, including the removal of her children. According to the report, the applicant stated that she had taken drugs between 2003 and 2011, and then from September until 8 October 2013; in the latter period she had taken heroin, which she had received from Mr K. (see paragraph 5 above). The applicant also stated that she had intended to contact the Khovrino district authorities to find out where her children had been taken, but had been unable to do so, as she had had to stay in bed because of withdrawal symptoms. She realised that she had a drug addiction and was ready to undergo medical treatment.",
"20. The report of 18 November 2013 stated that the flat had the necessary furniture and domestic appliances, and was tidy, cosy and well ventilated. Repair work had been carried out in the kitchen in the past month, and the furniture in the applicant ’ s room had been rearranged. The inspection was carried out in the presence of Ms P., who stated that the applicant had been admitted to hospital on 31 October 2013 and was currently undergoing inpatient medical treatment in connection with her addiction. Ms P. said that the applicant loved her children and cared about them. She also mentioned that she herself was currently taking the necessary administrative steps to gain custody of her grandchildren.",
"The applicant ’ s medical treatment",
"21. On 29 October 2013 the applicant sought assistance in connection with her drug addiction in a drug rehabilitation outpatient clinic ( наркологический диспансер ).",
"22. An extract from the applicant ’ s medical history file reveals that on 30 October 2013 she was admitted to a specialist clinic, where she was diagnosed with stage-two opiate addiction and withdrawal symptoms. She received treatment for her addiction until 21 November 2013, when she was discharged from the clinic. The file also states that she applied to the clinic for treatment on her own initiative, and that she had a positive attitude towards the treatment and intended to abstain from taking drugs and to lead a healthy life.",
"23. According to a certificate dated 5 December 2013, from December 2013 onwards, following a diagnosis of stage-two opiate addiction, the applicant was registered as an outpatient with a drug rehabilitation clinic for monitoring.",
"24. In the context of that monitoring, the applicant visited the drug rehabilitation clinic on 28 November 2013 and 9 January, 13 and 14 March and 10 April 2014.",
"25. According to the Government, the applicant received in-patient treatment for her addiction in a specialist clinic between 17 and 31 January 2014; she was discharged on the latter date as she had refused treatment. She was then readmitted to the clinic from 7 to 21 February 2014. In the applicant ’ s submission, she had left the specialist clinic on 31 January 2014 as she had had health issues which could not be addressed there. As soon as she had received treatment for those issues, she had returned to the drug rehabilitation clinic.",
"Proceedings FOR WITHDRAWAL OF the applicant ’ S parental authority",
"26. On 1 November 2013 the Khovrino district authority brought an action against the applicant, seeking the withdrawal of her parental authority in respect of her three children. In particular, they pointed out that since October 2013 the applicant had been monitored by the district commission for children ’ s affairs and the protection of minors ’ rights as a mother who had been neglecting her parental duties by not providing her children with adequate care and financial support, and who had been taking drugs for a prolonged period of time. The authority also pointed out that the applicant was unemployed and that criminal proceedings against her were currently ongoing in relation to her suspected involvement in drug trafficking. The authority therefore insisted that leaving her children with her would put their lives and health at risk.",
"First-instance courtProceedings before the first-instance court",
"Proceedings before the first-instance court",
"Proceedings before the first-instance court",
"27. A transcript of two court hearings that took place on 5 and 24 December 2013 respectively reveals that the applicant and her representative attended those hearings and made oral submissions. The applicant stated, in particular, that she loved her children and was willing to take care of them. She also stated that she had never taken drugs in front of her children; she would go to the bathroom or toilet for that purpose. She also said that she was willing to undergo rehabilitation treatment for her addiction.",
"28. The applicant ’ s mother, Ms P., who participated in the proceedings as a third party, objected to the withdrawal of her daughter ’ s parental authority. She stated that the applicant loved her children and had taken care of them to the extent that the state of her health had allowed. She also stated that she knew that, previously, her daughter had taken psychotropic drugs, but had stopped taking them during her pregnancy. Ms P. further stated that, although she shared the flat with her daughter, she had not noticed that the latter had relapsed; nor did she know that she had started taking heroin.",
"29. A representative of the children ’ s home in which A. and Al. had been placed stated, in particular, that the children ’ s grandmother had started visiting them as soon as they had been placed in that institution, whereas their mother had come for the first time on 6 December 2013, as prior to that date she had been following inpatient treatment for her addiction. Both the children ’ s mother and grandmother had regularly visited the children and had brought them presents; the children were particularly attached to their grandmother.",
"30. A police officer for juvenile affairs, Ms I.P., stated that the children ’ s mother had been taking drugs since 2004. According to Ms I.P., in 2010 she had stopped taking drugs because of her pregnancy, but had relapsed after the birth and had started taking heroin on a regular basis. The officer further stated that the children ’ s mother had tried to stop taking drugs, but had been unable to stop for longer than a fortnight. In the context of the criminal proceedings relating to drug trafficking, a search of her flat had been carried out and packets of heroin had been found. She would allow her acquaintances to take drugs in her kitchen, in her children ’ s presence. According to Ms I.P., the elder son, I., had been monitored by the police; two criminal cases against him had been discontinued owing to his young age.",
"31. The court also heard I., the applicant ’ s elder son, who stated, in particular, that until the events of 8 October 2013, he had been living with his mother, her partner, his brother and sister and his grandmother. Their life had been “normal”, there had been no “inadequacy” in his mother ’ s behaviour; she had been taking care of the children. I. also stated that he liked living with his father and that he had good relations with his father ’ s new family. In fact, I. would like to live with both of his parents, he could not make a choice. He stressed that he did not want his mother to be deprived of her parental authority.",
"32. I. ’ s father, Mr Is., and his wife stated that they would like I. to live with their family.",
"33. A transcript of the court hearing of 17 January 2014 reveals that the applicant ’ s representative informed the court that as the applicant had been admitted to a specialist clinic for treatment for her drug addiction, she was unable to attend the hearing. She had applied to the first-instance court for an adjournment of the hearing, but her application had been rejected.",
"Judgment of 17 January 2014",
"34. By a default judgment of 17 January 2014 the Golovinskiy District Court of Moscow (“the District Court”) examined and allowed the action against the applicant. It referred to Article 69 of the Russian Family Code (see paragraph 52 below).",
"35. The District Court examined the report on the applicant ’ s arrest on 8 October 2013 (see paragraphs 5 - 6 above), an administrative offence report of the same date (see paragraph 7 above), and a report on her medical examination on that date (see paragraph 8 above). The court also cited the report of 11 October 2013 on the inspection of the applicant ’ s living conditions (see paragraph 19 above), the certificate of 5 December 2013 (see paragraph 23 above), and the administrative decisions of 23 October 2013 to place A. and Al. in public care (see paragraph 11 above).",
"36. The court also relied on a letter from a teacher at I. ’ s school. The letter stated that I. had been going to that school since 1 September 2008, and that during the period when he had been going to that school he had demonstrated a lack of ability and motivation, and had missed classes for no valid reason. The letter also stated that although I. ’ s mother took care of I. and enquired about his behaviour and progress, she had not had any influence on him.",
"37. The court admitted Ms I.P. ’ s statements (see paragraph 30 above) as evidence, stating that they were consistent, coherent and corroborated by the written material in the case.",
"38. The court examined a report on the inspection of the living conditions in Mr Is. ’ s flat, which confirmed that they were good, and another letter from a teacher at I. ’ s school, which stated that since 18 October 2013 (the date on which I. had started living with his father) his behaviour had improved, he had stopped missing classes, and he had made progress in his studies.",
"39. With reference to the above-mentioned pieces of evidence and witness statements, the court noted that the applicant had been taking drugs for a prolonged period of time, was unemployed, and had failed to provide her children with adequate care or financial support. It concluded that leaving the children in her care would put their health and lives at risk, and that she should therefore be deprived of her parental authority in respect of I., A. and Al.",
"40. The court considered that the arguments put forward by the applicant ’ s representative and her mother that the applicant was currently undergoing medical treatment for her addiction and had positive references from her neighbours were irrelevant in the circumstances of the case, and should thus not be taken into account.",
"41. The court thus deprived the applicant of her parental authority in respect of her three children, and ordered that I. be placed in the care of Mr Is., his father, that A. and Al. be placed in public care, and that the applicant pay maintenance on a monthly basis to support her children financially.",
"Appellate proceedings",
"42. The applicant disagreed with the first-instance judgment and lodged an appeal before the Moscow City Court. She complained that the District Court had taken an overly formalistic approach and had not assessed the particular circumstances of her case, but had merely applied Article 69 of the Russian Family Code (see paragraph 52 below). It had thus withdrawn her parental authority on the sole grounds that she was a drug addict. In the applicant ’ s view, that fact alone did not prove that she posed any danger to her children, and therefore was insufficient for the purposes of depriving her of her parental authority. The first-instance court had ignored the fact that she was undergoing rehabilitation, even though that fact was directly relevant to her case. Lastly, she complained that she had not been given an opportunity to participate in the proceedings before the District Court, as it had rejected her application to adjourn the hearing.",
"43. A transcript of 14 April 2014 reveals that the applicant and her representative attended the hearing before the appellate court and submitted their arguments. They requested that the appellate court include in the case file a number of pieces of evidence proving that the applicant had changed her attitude, had found a job and had a sufficient income, and had followed rehabilitation treatment. They also requested the appellate court to call and examine the doctor who had treated the applicant at the specialist clinic where she had undergone inpatient treatment for her addiction. The appellate court dismissed that request, stating that the evidence in question had been received after the first-instance court had rendered its judgment, and that the applicant could have sought, but had not, the examination of the witness in question before the first-instance court.",
"44. By a decision of 14 April 2014 the Moscow City Court upheld the judgment of 17 January 2014 on appeal. It considered that the first-instance judgment was well reasoned and based on an adequate assessment of all the relevant circumstances.",
"45. The appellate court disagreed with the applicant ’ s argument that her addiction to drugs had been the sole ground for depriving her of her parental authority. Her children had been taken away because she had neglected her parental duties in respect of A. and Al. and, for a prolonged period of time, had remained unemployed and had taken drugs. The appellate court referred to the applicant ’ s words in the report of 11 October 2013 to the effect that, because of her withdrawal symptoms, she had been unable to discover her children ’ s whereabouts (see paragraph 19 above), and to her interview of 8 October 2013 (see paragraph 6 above) which revealed that she had regularly let other people take drugs in her flat. It also referred to “other pieces of evidence which showed that [she] had taken and had dealt in drugs at her flat”, without indicating what those pieces of evidence were.",
"46. In the appellate court ’ s view, the foregoing considerations had been sufficient to enable the first-instance court to reach a well-founded conclusion that leaving the children in the applicant ’ s care would put their lives and health at risk.",
"47. The Moscow City Court further held that the fact that the applicant had undergone rehabilitation treatment could not, on its own, be the basis for rejecting the authorities ’ action, as the first-instance court ’ s judgment had been based on an assessment of the available evidence and circumstances at the time the case was decided. Moreover, the applicant would have the opportunity to seek reinstatement of her parental authority once the reasons underlying the decision to deprive her of it were no longer valid.",
"48. Lastly, in so far as the applicant complained about the first-instance court ’ s refusal to adjourn the hearing to ensure her personal participation in the proceedings, the Moscow City Court noted that that did not constitute grounds for quashing the judgment, as the applicant had been represented before the first-instance court, and her representative had set out her position.",
"Cassation proceedings",
"49. The applicant then lodged a cassation appeal before the Presidium of the Moscow City Court. The latter received the appeal on 10 October 2014. She argued that the lower courts had applied Article 69 of the Russian Family Code in a formalistic manner, and had based their decisions solely on the fact that she had been a drug addict, whilst failing to take into consideration the fact that she had been undergoing rehabilitation treatment. Moreover, the first-instance and appellate courts had disregarded her children ’ s right to live and be raised in their family, as guaranteed by Article 54 of the Russian Family Code (see paragraph 51 below). In particular, they had failed to demonstrate convincingly that the children ’ s forced separation from their mother and their placement in the care of the State had been in their best interests. The applicant further argued that the courts had failed to set out any facts showing that she had neglected her parental duties at any point, and that the courts ’ conclusion to that end had been groundless. According to the applicant, the case material showed that, although she suffered from an opiate addiction, she was making efforts to overcome it; moreover, she had never lost interest in her children ’ s lives, their development and upbringing. She also argued that the impugned decisions had breached her right to respect for her private and family life, as guaranteed by Article 8 of the Convention.",
"50. By a decision of 29 October 2014 the Presidium of the Moscow City Court upheld the judgment of 17 January 2014 and the decision of 14 April 2014, endorsing the reasoning of the lower courts."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"Russian Family Code",
"51. Article 54 of the Russian Family Code (“the Code”) provides that every child, that is a person under the age of eighteen, has the right to live and be brought up in a family, in so far as this is possible. He or she has the right to know his or her parents, to be cared for, and to live with his or her parents, except where this is contrary to his or her interests. A child also has the right to be brought up by his or her parents, to the protection of his or her interests, to full development, and to respect for his or her human dignity.",
"52. Article 69 of the Code establishes that a parent may be deprived of parental authority if he or she avoids parental duties, such as the obligation to pay child maintenance; refuses to collect his or her child from a maternity hospital, or any other medical, educational, social or similar institution; abuses his or her parental authority; mistreats his or her child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse.",
"53. By virtue of Article 71 of the Code, parents who have been deprived of their parental authority lose all rights based on their kinship with the child in respect of whom their parental authority has been withdrawn, as well as the right to receive child welfare benefits and allowances paid by the State.",
"54. Article 73 provides that a court may decide, in the interests of the child, to remove him or her from his or her parents (or one of them) without depriving them of their parental authority (restriction of parental authority). Parental authority is restricted when leaving the child with his or her parents (or one of them) is deemed dangerous for the child due to circumstances beyond the control of the parents (or one of them), such as mental illness or other chronic disease, or a combination of difficult circumstances. It is also possible to restrict parental authority in cases where leaving a child with his or her parents (or one of them) would be dangerous for the child on account of their behaviour, but sufficient grounds for depriving the parents (or one of them) of their parental authority have not been established. If the parents (or one of them) do not change their behaviour, the custody and guardianship authority is under an obligation to apply for the parents to be deprived of their parental authority within six months of the court decision restricting parental authority. Acting in the interests of the child, the authority may lodge the application before that deadline.",
"Supreme Court of Russia",
"55. In its ruling no. 10 on courts ’ application of legislation when resolving disputes concerning the upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular:",
"“...",
"11. Only in the event of their guilty conduct may parents be deprived of their parental authority by a court on the grounds established in Article 69 of the [Russian Family Code].",
"Avoidance by parents of their parental duties in relation to their children ’ s upbringing may manifest itself in [such parents ’ ] failure to take care of [the children ’ s] moral and physical development, education, [and] preparation for socially useful activities.",
"...",
"Chronic alcohol or drug abuse should be confirmed by a relevant medical report ...",
"12. ... Persons who do not fulfil their parental obligations as a result of a combination of adverse circumstances or on other grounds beyond their control (for instance, [where the person has] a psychiatric or other chronic disease ...) cannot be deprived of their parental authority.",
"...",
"13. Courts should keep in mind that deprivation of parental authority is a measure of last resort. Exceptionally, where a parent ’ s guilty conduct has been proved, a court, with due regard to [that parent ’ s] conduct, personality and other specific circumstances, may reject an action for [him or her] to be deprived of his or her parental authority and urge [him or her] to alter [his or her] attitude towards bringing up [his or her] children, entrusting [a competent] custody and guardianship agency with monitoring whether [that parent] duly performs [his or her] parental duties.”",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"56. The applicant complained that that she had been deprived of her parental authority as a result of the automatic application of Article 69 of the Russian Family Code, in which a parent ’ s drug addiction was listed among the grounds for removal of parental authority. She relied on Article 8 of the Convention, the relevant part of which reads:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Admissibility",
"57. The Government pointed out that the Russian Code of Civil Procedure, as in force at the relevant time, had established a two-tier cassation appeal procedure for appealing against court decisions taken at the first two levels of jurisdiction, which had been recognised by the Court as an effective remedy in the case of Abramyan and Others v. Russia (( dec. ), nos. 38951/13 and 59611/13, 12 May 2015). They further pointed out that at the time the applicant had lodged her application with the Court, her cassation appeal had still been pending before a cassation court. They argued therefore that the application was premature and that the applicant had failed to exhaust the effective domestic remedies available to her.",
"58. With reference to the case of Kocherov and Sergeyeva (no. 16899/13, 29 March 2016), the applicant argued that when she had lodged her application with the Court, she had not known that it would consider the new cassation procedure an effective remedy. She pointed out that she had lodged her application on 14 October 2014, whereas the Court ’ s inadmissibility decision in the case of Abramyan and Others (cited above) had not been delivered until May 2015.",
"59. The Court has rejected similar objections by the respondent Government in many cases where applicants had lodged their applications before the Court had pronounced its decision in the case of Abramyan and Others, cited above (see, for example, Novruk and Others v. Russia, nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva, cited above, §§ 64-69; McIlwrath v. Russia, no. 60393/13, §§ 85-95, 18 July 2017; Elita Magomadova v. Russia, no. 77546/14, §§ 40 ‑ 44, 10 April 2018; Khusnutdinov and X v. Russia, no. 76598/12, §§ 65-66, 18 December 2018; and Zelikha Magomadova v. Russia, no. 58724/14, §§ 79-80, 8 October 2019 ).",
"60. The Court does not discern any reason to reach a different conclusion in the present case. The applicant lodged her application with the Court on 14 October 2014, that is before the Court recognised the reformed two-tier cassation appeal procedure as an effective remedy (see Abramyan and Others, cited above, §§ 76-96). Moreover, the Government have not alleged that at the time of the events under consideration, any relevant domestic case-law had existed to enable the applicant to realise that the new remedy met the requirements of Article 35 § 1 of the Convention, and to anticipate the new exhaustion requirement rather than following the approach that had been applied by the Court until very recently. In such circumstances, the Court considers that the applicant was not required to pursue that procedure prior to lodging her application with the Court.",
"61. Accordingly, the Court rejects the Government ’ s objection as to the alleged non-exhaustion of domestic remedies.",
"62. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsSubmissions by the parties",
"Submissions by the parties",
"Submissions by the parties",
"(a) The applicant",
"63. The applicant argued that the domestic courts had automatically applied Article 69 of the Russian Family Code on the sole ground that she had been a drug addict; they had not assessed the necessity and proportionality of a measure as harsh as deprivation of parental authority. In particular, they had not considered applying other, less restrictive, measures. In the applicant ’ s submission, withdrawal of parental authority should be a measure of last resort that was to be applied only where other, less intrusive, measures had failed. Indeed, Article 73 of the Russian Family Code (see paragraph 54 above) provided for restriction of parental authority, which was less drastic; however, the domestic authorities had never considered applying that measure.",
"64. Furthermore, the national authorities had never considered rendering social assistance and support to the applicant and her family. In particular, once the applicant ’ s situation had become known to the Russian authorities, they had held her liable in administrative proceedings for not fulfilling her parental duties. They did not offer any social or medical support to the applicant and her family, despite the obvious fact that her hardship and difficult family situation had been caused by her drug dependence. The assessments undertaken by the child-protection authority (see paragraphs 7 and 9 above) had been focused on depriving her of parental authority, rather than identifying her family ’ s needs and providing her with the necessary social support.",
"65. The domestic courts had also failed to strike a fair balance between the interests at stake, and to provide “relevant and sufficient” reasons for their decision to deprive the applicant of parental authority. In particular, they had disregarded the positive changes in her conduct after the removal of her children and, more specifically, the fact that she had started rehabilitation treatment. Moreover, they had not considered the option of leaving the children in the care of their maternal grandmother. Instead, having disregarded the evidence and witness statements proving that before the children ’ s removal, the applicant and her children had enjoyed decent living conditions, and that her mother had been living with them and had helped her to take care of them, they authorised the children ’ s placement in public care. Nor did the authorities take into account the fact that the children had bonds not only with the applicant but with her mother as well. The courts had also disregarded statements by the applicant ’ s mother and her elder son that she had not been taking drugs in front of the children. In fact, the courts had attributed the risk to the children ’ s health and development to the mere fact that the applicant had been taking drugs, and that drugs had been present and sold in her flat. Moreover, the courts had referred to her poor financial situation, which, in itself, was not a valid reason for withdrawing her parental authority.",
"66. The applicant concluded that the way in which the authorities had exercised their powers and dealt with her situation had been punitive rather than supportive.",
"67. She had been put in a position where she had been unable effectively to put forward all arguments against the withdrawal of her parental authority. In particular, the domestic courts had rejected as irrelevant the evidence she had submitted, including positive references from her neighbours and her son ’ s school, as well as the evidence confirming that she had commenced rehabilitation treatment.",
"68. The applicant also argued that in the domestic proceedings, despite the fact that she had been vulnerable in view of her drug addiction, she had not been provided with free legal aid. She had not had the benefit of legal counsel and had been represented by someone without legal education and skills, whereas the authorities had been represented by a number of officials from the child-protection authorities, who “probably [had] had legal education and skills or knowledge related to childcare cases”, as well as by a prosecutor. This had put the applicant at a disadvantage.",
"69. Moreover, the last hearing before the first-instance court had been held despite the fact that the applicant could not attend it as she had been in a specialist clinic for rehabilitation treatment. Overall, the proceedings had been heavily dominated by public officials, with the result that the decision-making process could not be considered to have been fair.",
"70. The applicant stressed that as a consequence of the decision to deprive her of parental authority, she had lost all rights in respect of her children, including contact rights. The impugned measure had therefore violated her right to respect for her private and family life.",
"(b) The Government",
"71. The Government acknowledged that depriving the applicant of her parental authority had constituted an interference with her right to respect for her family life secured by Article 8 § 1 of the Convention. In their view, however, it had been justified under the second paragraph of that Article. It had a basis in domestic law, as it had been based on the Russian Family Code, in particular Article 69, on which the domestic courts had relied in their relevant decisions. It had also pursued the aim of protecting the children ’ s rights.",
"72. In the Government ’ s view, the measure complained of had also been “necessary in a democratic society”; it had been proportionate and had taken the children ’ s best interests into account. Under the Court ’ s well-established case-law, the national courts had a certain margin of appreciation in the field and were better placed to assess the relevance and substance of the evidence before them, including witnesses ’ statements. In the proceedings concerning withdrawal of the applicant ’ s parental authority, the domestic courts had rightly considered that maintaining family ties between the applicant and her three children would be detrimental to their health and development, and that it would be in the best interests of the children to ensure their development in a safe environment. The courts had taken their decision on the basis of the adduced evidence. In particular, the first-instance court had established that the applicant had been taking drugs for a prolonged period of time, which had damaged the children ’ s mental health; she had let her acquaintances take drugs in her flat, where her children lived; she had neglected her children and, in particular, had not taken care of their health and mental development; she had been unemployed and had a low income; and criminal proceedings had been pending against her. The Government also referred to the applicant ’ s previous criminal record without providing any supporting documents. In the Government ’ s view, the foregoing proved that the withdrawal of the applicant ’ s parental authority had not been automatic but had been based on relevant and sufficient considerations.",
"73. As regards the decision-making process, the Government contended that the applicant had taken part in two hearings (on 5 and 24 December 2013) before the first-instance court, where she and her representative had had an opportunity to make oral and written submissions and to lodge applications which had been examined by the courts and had received reasoned replies. As regards the last hearing on 17 January 2014, which the applicant had been unable to attend because of her hospitalisation on that date, the Government pointed out, firstly, that she had been aware of the date of the hearing and yet she had chosen to start her inpatient treatment on that date. Moreover, her representative had asked the first-instance court to postpone the hearing for two months, which, in the court ’ s view, had been too long for a childcare dispute. In any event, the applicant had stated her case and advanced her arguments during the previous two hearings, and her representative had participated in the third hearing. In addition, the applicant and her representative had attended the hearing at which her case had been examined by the appellate court. Therefore, in the Government ’ s view, the decision-making process had been fair and had secured the applicant ’ s rights.",
"74. The Government further argued that the authorities had taken the most appropriate steps in the circumstances. In particular, the applicant ’ s elder son had been transferred into his father ’ s care, which according to a report drawn up by his school, had had a beneficial effect on his behaviour. The two youngest children had been transferred to a foster family; their foster parents had complied with all the requirements of the relevant law.",
"The Court ’ s assessment",
"(a) General principles",
"75. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, for instance, Haddad v. Spain, no. 16572/17, § 51, 18 June 2019). There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). A child ’ s interests dictate that the child ’ s ties with his or her family must be maintained, except in cases where the family has proved to be particularly unfit and this may harm the child ’ s health and development (see, for instance, K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017). Severing such ties means cutting a child off from his roots, which may only be done in very exceptional circumstances everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. In that context, the Court has emphasised, in particular, the State ’ s obligation to adopt measures to preserve the parent-child bond as far as possible (see Görgülü v. Germany, no. 74969/01, § 48, 26 February 2004; S.H. v. Italy, no. 52557/14, § 48, 13 October 2015; and Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017).",
"76. At the same time, it is clearly also in the child ’ s interest to ensure his or her development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 207, 10 September 2019). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents (see, for instance, V.D. and Others v. Russia, no. 72931/10, § 114, 9 April 2019).",
"77. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It is accordingly not the Court ’ s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their power of appreciation (see, among other authorities, X v. Latvia [GC], cited above, § 101, and Strand Lobben and Others, cited above, § 210). The margin of appreciation to be granted to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Whilst the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody matters, stricter scrutiny is called in respect of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between parents and a child are effectively curtailed (see Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I; Haase v. Germany, no. 11057/02, § 92, ECHR 2004-III (extracts), and Strand Lobben and Others, cited above, § 211).",
"78. In assessing whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “relevant and sufficient” for the purposes of Article 8 § 2 of the Convention. To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk, cited above, § 139). In cases relating to public-care measures, the Court will also have to determine whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see Strand Lobben and Others, cited above, § 212).",
"(b) Application of these principles to the present case",
"79. The Court notes firstly that, by its very nature, the tie between the applicant and her children comes within the notion of “family life” for the purposes of Article 8 of the Convention (see A.K. and L. v. Croatia, no. 37956/11, §§ 51-52, 8 January 2013, and S.S. v. Slovenia, no. 40938/16, § 78, 30 October 2018).",
"80. It was not in dispute between the parties that depriving the applicant of her parental authority in respect of her children had constituted an interference with her right to respect for family life as guaranteed by Article 8 § 1 of the Convention. Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no. 10592/12, § 74, 22 October 2015, and S.S. v. Slovenia, cited above, § 79).",
"81. The Court further accepts the Government ’ s argument that the measure complained of was based on Article 69 of the Russian Family Code (see paragraph 52 above), and that it pursued the aim of protecting the rights of the applicant ’ s children. It remains to be determined whether that measure was “necessary in a democratic society”.",
"82. The Court observes at the outset that depriving the applicant of her parental authority cancelled the mother-child bond between the applicant and her children, and extinguished all parental rights she had in respect of them, including the right to have contact with them (see paragraphs 53 and 70 above). The Court reaffirms that splitting up a family is a very serious interference (see A.K. and L. v. Croatia, § 62, and Haddad, § 54, all cited above). Depriving a person of his or her parental rights is a particularly far-reaching measure which deprives a parent of his or her family life with the child, and it is inconsistent with the aim of reuniting them. As noted above, such measures should only be applied in exceptional circumstances, and can only be justified if they are motivated by an overriding requirement pertaining to the child ’ s best interests (see Strand Lobben and Others, cited above, § 209; M.D. and Others v. Malta, no. 64791/10, § 76, 17 July 2012; and N.P. v. the Republic of Moldova, no. 58455/13, § 65, 6 October 2015). This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see S.S. v. Slovenia, cited above, § 96).",
"83. In respect of the decision-making process, the Court observes that the applicant was represented throughout the proceedings in question; she also attended in person two out of three hearings before the first-instance court and the appellate court ’ s hearing and made oral submissions (see paragraphs 27 and 43 above). A number of witnesses, including her mother and her elder son, were heard (see paragraphs 28 and 31 above). At the same time, in assessing the quality of the decision-making process leading to the splitting up the family, the Court will also have to see whether the conclusions of the domestic authorities were based on adequate evidence (see N.P. v. the Republic of Moldova, cited above, § 69; compare also Strand Lobben and Others, cited above, §§ 220 and 225).",
"84. In the above connection, the Court notes that the domestic courts based the impugned measure on the findings that she had been neglecting her parental responsibilities by failing to provide her children with adequate care and financial support, and, for a prolonged period of time, she had been taking drugs and had been unemployed. The authorities considered that leaving children in her care would thus put their health and development at risk, and decided that her parental authority should be withdrawn (see paragraphs 39 and 45 above). The Court is prepared to accept that those were “relevant” considerations, but is not convinced that they were also “sufficient” to justify the impugned measure in the circumstances of the present case.",
"85. On the facts, the applicant ’ s three children were removed from her and placed in public institutions on 8 October 2013, when the criminal proceedings against her on suspicion of her involvement in drug trafficking had commenced (see paragraphs 5 and 7 above). The Court is prepared to accept that the children ’ s removal and initial placement in public care was justified, given in particular that the applicant had been intoxicated on the date in question, had suffered from withdrawal symptoms on the following days, and had clearly been unable to take care of her children (see paragraphs 8 and 19 above). It does not follow, however, that that fact, in itself, constituted sufficient grounds for such a far-reaching measure as deprivation of parental authority. The Court reiterates that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Strand Lobben and Others, § 208, and Haddad, § 54, all cited above).",
"86. The Court further observes that the childcare authorities started monitoring the applicant ’ s family in connection with her allegedly negligent performance of her parental duties and lack of care for her children on an unspecified date in October 2013 – presumably after the events of 8 October 2013 – and that they instituted proceedings to deprive the applicant of her parental authority as early as 1 November 2013 (see paragraph 26 above). It does not appear that, prior to the proceedings in question, the applicant had been monitored by the childcare or any other social welfare authorities, or warned about her behaviour and the consequences it might entail. Nor does it appear that, once the applicant ’ s situation had come to their attention, the competent authorities made any attempt to provide her with appropriate assistance. There is also no evidence that, in their relevant decisions, the domestic courts considered any of those factors.",
"87. The Court reaffirms that the authorities ’ role in the social welfare field is, precisely, to help persons in difficulty, to provide them with guidance in their contact with the welfare authorities and to advise them, inter alia, on how to overcome their difficulties (see Saviny v. Ukraine, no. 39948/06, § 57, 18 December 2008; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013; and S.H. v. Italy, cited above, § 54). In the case of vulnerable persons, the authorities must show particular vigilance and afford increased protection (see, for instance, S.S. v Slovenia, cited above, § 84).",
"88. Furthermore, whilst holding that the applicant had neglected her parental obligations and, in particular, had not provided her children with adequate care, the domestic courts did not elaborate on those findings. In particular, they failed to refer to any particular situations or events where the applicant had left her children unattended, had not provided care for them or had neglected them in any way, let alone endangered their health or life by her actions or inaction. They merely relied on the applicant ’ s own statement – made in the context of the criminal proceedings against her – that she had allowed her acquaintances to use her flat for taking drugs (see paragraph 6 above), and the oral evidence of Ms I.P., a police officer for juvenile affairs, who stated that the applicant would allow her acquaintances to take drugs in her kitchen, in her children ’ s presence (see paragraph 30 above).",
"89. In the above connection, the Court notes, firstly, that it does not follow from the applicant ’ s statement that she or her acquaintances had ever taken drugs in front of her children. It is unclear what the basis for Ms I.P. ’ s relevant statement was, as this latter question was not explored in any detail by the domestic courts. Secondly, the applicant, her elder son and her mother consistently stated that the applicant had not demonstrated her addiction to her family members; in particular, there had been no “inadequacies” in her everyday behaviour (see paragraphs 27, 28 and 31 above). Although those statements seemingly contradicted those of Ms I.P., in so far as the latter mentioned that drugs had been taken in the presence of the applicant ’ s children, the domestic courts made no attempt to obtain more information in order to clarify that important contradiction.",
"90. It is also relevant that the applicant consistently reaffirmed her intention to resolve her drug-addiction problem and, moreover, took steps to that end (see paragraphs 19 - 25, 27, 43 and 49 above). Yet, there is no indication that the domestic authorities sought any independent evidence, such as an assessment by a psychologist, to evaluate the applicant ’ s emotional maturity and motivation to act as a responsible parent and to resolve her drug-addiction problem. Moreover, the applicant ’ s arguments and evidence that she had commenced rehabilitation treatment were rejected by the first-instance court as irrelevant (see paragraph 40 above), and by the appellate court with reference to the fact that it had been received after the first-instance court ’ s judgment (see paragraph 43 above). The Court finds this line of reasoning striking in a situation where the applicant ’ s drug addiction appears to have been the main, if not the only, ground for depriving her of parental authority. The domestic courts in fact chose to ignore the evidence adduced by the applicant, instead of assessing it during the proceedings (compare N.P. v. the Republic of Moldova, cited above, § 75).",
"91. In so far as the domestic courts relied on the fact that the applicant was unemployed, the Court finds that financial difficulties cannot in themselves be regarded as sufficient grounds for cancelling a parent-child bond, in the absence of any other valid reasons (compare Kocherov and Sergeyeva, cited above, § 119). Moreover, the relevant court decisions did not explain how the applicant ’ s being unemployed affected her ability and capacity to take care of her children. In fact, the report of 11 October 2013, relied on by the domestic courts, does not reveal any defects in the living conditions of the applicant ’ s family, except for the fact that the room in which she and her children lived was stuffy, untidy and poorly ventilated. Otherwise, that report indicates that the children had separate sleeping places and that there were sufficient food supplies in the kitchen and in the refrigerator (see paragraph 19 above). Moreover, the report of 18 November 2013 clearly showed subsequent improvements, stating, in particular, that the flat was tidy, cosy and well ventilated and that recent repairs had been carried out in the kitchen (see paragraph 20 above). However, no assessment of those changes, in particular whether they could be regarded as a genuine attempt on the part of the applicant to improve her situation after the children ’ s removal, was made by the domestic courts.",
"92. The Court further notes the applicant ’ s argument that under the relevant provisions of domestic law, the authorities had discretion to apply a less drastic measure and to order restriction rather than deprivation of her parental authority (see paragraphs 54 and 63 above). The Court finds it surprising that the domestic authorities did not consider that alternative, despite the fact that, as noted in paragraph 86 above, the applicant did not have a history of neglecting her children. Nor did they give the applicant any warnings regarding the possible consequences of her allegedly negligent behaviour in respect of her children.",
"93. It is also relevant that the applicant consistently expressed her attachment to the children and her wish to maintain her relationship with them. Written and oral evidence was adduced to the domestic courts showing that prior to the children ’ s removal, the applicant had taken care of them (see paragraphs 28, 31 and 36 above), and that after their removal she had expressed an interest in their lives and made an effort to maintain contact with them (see paragraph 29 above). It was also shown that the children were deeply attached to their mother and their maternal grandmother (see paragraphs 16 and 29 above), and that the maternal grandmother had been willing to keep the children in her care (see paragraph 20 above). Yet, it does not appear that the domestic courts gave due consideration to any of those aspects. In particular, when choosing the measure to be applied in the applicant ’ s case, they did not assess the impact which the children ’ s separation from their mother and grandmother might have on their well-being. That is particularly striking in view of the fact that the removal of the applicant ’ s parental authority terminated her parental status and thus deprived her of any legal grounds to apply for contact orders or seek access to her children.",
"94. The Court furthermore observes that, as a result of the impugned measure, the children were not only separated from the applicant, their mother, but they themselves were split up, given that the oldest child was transferred into his father ’ s care whereas two youngest children were placed in public care (see Kutzner, cited above, § 77; Pontes v. Portugal, no. 19554/09, § 98, 10 April 2012; and S.H. v. Italy, cited above, § 56).",
"95. In the light of the foregoing, the Court finds that the reasons relied on by the domestic courts were insufficient to justify depriving the applicant of her parental authority over her three children, and placing the youngest two children in public care. The domestic authorities failed to demonstrate convincingly that, despite the availability of less radical solutions, the impugned measure constituted the most appropriate option corresponding to the children ’ s best interests. Notwithstanding the domestic authorities ’ margin of appreciation, the interference with the applicant ’ s family life was therefore not proportionate to the legitimate aim pursued.",
"96. There has accordingly been a violation of Article 8 of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"97. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"98. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.",
"99. The Government argued that the claim was excessive and unreasonable, and did not correspond to the Court ’ s case-law. They argued that no compensation should be awarded to the applicant, as her rights had not been violated.",
"100. The Court notes that it has found a violation of the applicant ’ s right to respect for her family life on account of the deprivation of her parental authority. It considers that she has suffered non-pecuniary damage in that connection, which cannot be compensated for by a mere finding of a violation. Having regard to the particular circumstances of the case, the Court considers it appropriate to award the applicant the full amount, that is EUR 20,000, in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"Costs and expenses",
"101. The applicant did not submit any claim for the costs and expenses incurred, either at the domestic level or before the Court.",
"102. The Court thus makes no award under this head.",
"Default interest",
"103. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
86 | Abdi Ibrahim v. Norway | 10 December 2021 (Grand Chamber) | This case concerned the decision by the Norwegian authorities to allow the adoption of a child by a foster family against his mother’s wishes. The mother, a Somali national who had moved to Norway, did not ask for her son’s return as he had spent a long time with his foster parents, but wished for him to maintain his cultural and religious roots. The applicant complained about the withdrawal of her parental rights and the authorisation for adoption. | The Grand Chamber decided to examine the applicant’s wish to have her son brought up in line with her Muslim faith as an integral part of her complaint under Article 8 (right to respect for private and family life) of the Convention, as interpreted and applied in the light of Article 9 (freedom of religion) of the Convention. In the present case, it held that there had been a violation of Article 8. The Court pointed out, in particular, that various interests had been taken into account when placing the applicant’s son in care, not just whether the foster home would correspond to the mother’s cultural and religious background, and that that had complied with her rights. However, the ensuing contact arrangements between mother and son, which had been very limited and had culminated in adoption, had failed to take account of the mother’s interest in allowing her son to retain at least some ties to his cultural and religious origins. Indeed, there had been shortcomings in the overall decision-making process leading to the adoption, which had not given sufficient weight to the mother and child’s mutual interest in maintaining ties. | Parental Rights | Parental authority, child custody and access rights | [
"13. The applicant was born in Somalia in 1993. In 2009 she left home, unaccompanied, while pregnant with a child, X, whose father came from the same city as the applicant. They were unmarried and he did not acknowledge paternity. The applicant went to her uncle’s home in Kenya and in November 2009 she gave birth there to her son, X, in traumatic circumstances. She was herself still a minor when she became pregnant and gave birth.",
"14. In February 2010 the applicant left Kenya with X. They went first to Sweden, before entering Norway and applying for asylum there that same month. The applicant was granted a temporary residence permit with refugee status in Norway by a decision dated 4 June 2010. She has two cousins in Norway.",
"15. In order for the applicant to be assisted in caring for X, she and X moved into a residential parent-child centre (“the parent-child institution”) on 21 September 2010. On 28 September 2010 the institution sent a “notification of concern” (“ bekymringsmelding ”) to the child welfare services, as it considered X to be at risk of harm in the applicant’s care. The notification concluded as follows:",
"“In [the parent-child institution]’s opinion, the child’s life would have been in danger if the staff had not protected him during the stay. It is our assessment that we cannot protect the child sufficiently within the structure of our institution, and we also find that the child is suffering.”",
"According to the institution, the applicant had been informed of these concerns via an interpreter on the previous day.",
"16. It emerges from records of phone calls contained in the child welfare service’s case file that various enquiries were made to ascertain whether there were any Somali families available which could act as foster parents, both before the applicant and X entered the parent-child institution and when their stay there ended.",
"17. X was then placed in emergency foster care with a Norwegian woman, having spent a week in the parent-child institution. The minutes of a meeting held on 11 October 2010 in the emergency foster home indicate that the foster care services were due to meet with a Somali woman whom the applicant described as her sister and who wished to act as a foster parent for X. The minutes also indicate that the foster care services were to clarify whether another childless Somali couple could be candidates. They further state that these services would establish whether there were any Somali families in the relevant region of Norway who had completed the “PRIDE” course (“Parents, Resources, Information, Development, Education” – a training programme for, among others, persons who wished to become foster parents) and who would be willing to consider the task of acting as foster parents for X. The Government have in addition presented to the Court a document of 13 August 2020, explaining that the child welfare services had also examined the possibility of placing X with an Afghan Muslim family which had completed the “PRIDE” course, but that they had become aware of major cultural differences between Somalians and Afghans and had decided not to do so.",
"18. The above-mentioned meeting with the Somali woman was held on 14 October 2010. The foster care services’ subsequent report notes that she gave the impression of being a mother who took good care of her two children. However, her accommodation was considered unsuitable for an additional child, and the foster care services was unsure that she had the additional time and energy that a foster child would need, given that she was a single mother with two young children.",
"19. On 6 November 2010 the municipality applied to the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) for a care order. The applicant opposed the application and lodged alternative claims for X to be placed in her cousin’s home or in a Somali or Muslim foster home.",
"20. In its decision of 10 December 2010, the Board found it clear that the conditions for issuing a care order in respect of X had been met. It also found that the decision about which foster home X should be placed in was to be left to the authorities.",
"21. With regard to the care order, the Board considered that it had been substantiated with a high degree of probability that, at the time of its decision, X was a child with abnormal psychological development, and that he suffered from an attachment disorder caused by the applicant’s inability to meet his need for physical and psychological security. The evidence showed that X was an emotionally damaged child who had not developed a secure relationship with his mother, and that he was, at the time, a psychologically vulnerable child with exceptional care needs. The applicant had been provided with considerable help and guidance, but none of it had had any significant effect on her competence as a caregiver. In the Board’s view, the case clearly involved gross neglect that could be deemed unacceptable by any reasonable standard, regardless of ethnicity, culture and language. In the Board’s view, assistance measures as an alternative to taking X into care had to be deemed inexpedient in terms of protecting him from further neglect, as the Board found it established that the applicant had proved unreceptive to guidance ( lite veiledbar ) and had made it clear that she would not cooperate with the child welfare services unless the boy was first returned to her care.",
"22. In respect of contact rights, the Board held that four short contact sessions a year would be appropriate. It had noted a statement from the emergency foster mother to the effect that X had been very agitated at night after the sessions with his mother; he had not slept well, had woken up and cried intensely, had seemed scared, and it had been difficult to re-establish contact with him and calm him down. She stated that this behaviour could continue for two or three nights, and the Board found it likely that this corresponded to the anxiety that the staff at the parent-child institution (see paragraph 15 above) had observed in X when the applicant was present. The Board deemed it important to avoid such reactions after contact sessions, and stated that it was necessary to ensure that X’s development in the foster home was not delayed by the fact of requiring him constantly to attend contact sessions which left him very disturbed; nor should the contact sessions be too long. Moreover, in the Board’s view, supervision during contact sessions was definitely necessary in order to guarantee X’s physical and mental security. The child welfare services were therefore authorised to supervise the contact sessions in the manner they considered most appropriate.",
"23. With regard to the choice of foster home, the Board considered that the primary goal had to be to find a home in which X’s extraordinary need for psychological security and for a stable life could be met. The Board held that the emotional damage suffered to date by X was such that an “enhanced” foster home (an arrangement whereby the foster home was given extra assistance and support) would probably be required, and his age and developmental stage indicated to the Board that it was urgent that a foster home be found in which his needs could be fully met. The Board noted that X should be moved as soon as possible from the emergency foster home to a foster family to which he could develop the best possible attachment, and that the longer he stayed in the emergency foster home, the more stressful that subsequent move would be.",
"24. The Board considered that X’s negative attachment to the applicant was an argument against placing him with her cousin. Experience with the applicant to date implied that she would not understand the purpose of limited contact if her son were to stay with a relative, and the Board presumed that it would hinder X’s positive development if the applicant were not kept away from the foster home. In addition, the cousin had had no contact with the applicant until very recently and already had substantial care duties, as she was a single parent with two children.",
"25. Although section 4-15 of the Child Welfare Act stated that due account should be taken of a child’s ethnic, religious, cultural and linguistic background when choosing a placement (see paragraph 61 below), the Board considered it more important in the present case that the primary consideration mentioned in that same section be addressed. Specifically, the point of departure of the Child Welfare Act was that a placement should be chosen on the basis of the child’s distinctive nature and need for care and training in a stable environment. As the Board had already mentioned, X was by all accounts an emotionally damaged child and consideration of his best interests indicated that starting the essential work of rectifying this state of affairs in a new care situation should be the main priority.",
"26. The Board stated that it would be ideal if the child welfare services, in cooperation with the Office for Children, Youth and Family Affairs ( Barne-, ungdoms- og familieetaten – Bufetat ), managed to find a foster home that could be deemed suitable for this task and that could also correspond to the specific ethnic, religious, cultural and linguistic considerations in the case. Thus, the Board expected this option to be explored in so far as time would permit but left the further work of choosing a placement to the child welfare services. If an ethnically Norwegian foster home was chosen, efforts had to be made to give X a desirable knowledge of his mother’s – the applicant’s – language, culture and religion, as far as this could be done without it being an obstacle to his positive development in the foster home.",
"27. X was placed in care with a Norwegian, Christian, family, members of the Mission Covenant Church of Norway and the Norwegian Missionary Society, on 13 December 2010. Records from a meeting with the applicant three days later, on 16 December 2010, contain the following notes:",
"“The mother wants [X] to live with a Somali family, she has heard of a family in ... which takes in foster children. Or ... he [could], if possible, live with ... in ... [A case officer] informs her that it was unfortunately not possible to find a Somali home that could take in [X], so he will now live with a Norwegian family, but that they will take good care of him and that he will have a very good life.”",
"28. The applicant appealed against the Board’s decision to the District Court. During the hearing before that court she dropped the alternative claim for X to be placed in a Somali or Muslim foster home, should her principal claim, contesting the care order, be unsuccessful.",
"29. In its judgment of 6 September 2011, the District Court upheld the Board’s decision in respect of the care order but altered the decision on contact rights, fixing these at one hour, six times per year. It based its decision with regard to contact rights on, inter alia, the need for X to keep in touch with his cultural background and its opinion that, at the relevant time, it was uncertain whether the applicant’s care skills would improve and, accordingly, whether the care order would be long-term. At the same time, it found that X’s vulnerability and need for peace and stability in his care situation did not suggest that frequent contact should be granted. There is no information about the applicant having appealed against the District Court’s judgment.",
"30. On 27 June 2012 a meeting was held between the applicant and the child welfare services. The minutes of that meeting include the following information:",
"“The caseworker asks if there is anything else about the access visits that [the applicant] would like to be different. Place, time, etc. [The applicant] thinks the arrangements around the access visits are ok and does not want any changes now.",
"Furthermore, [the applicant] wants [X] not to eat pork and not go to church. They must have respect for me and my religion, she says.",
"The child welfare services inform her that the foster family eats little pork. They eat a lot of chicken and fish. They are also aware of her wishes and therefore do not want to use a lot of pork in their cooking, but on the other hand they cannot guarantee that they will never eat pork. During the period when the child welfare services had to find a foster home for [X], they had spent a lot of time looking for a Somali foster home. They did not find one. [The family with whom X stayed] was the foster home that became relevant for [X]. They are not Somali and Muslim but have other qualities that are important for [X]. They have great respect for his culture and religion. They have already read a lot about Somalia to [X] and they want to inform him about Somali culture and religion as he grows up, but they [themselves] cannot live like that. They are Norwegian and now that [X] lives in a Norwegian foster home, he will follow the foster home’s normal routines.",
"[The applicant] asks whether the child welfare services have received a letter from her lawyer ... stating that [X] should not be served pork. The caseworker says she is not aware that the child welfare services have received such a letter. [The applicant] says she needs to talk to the lawyer about this.",
"[The applicant] says that he will then become “like them”. The caseworker agrees that he will be influenced by the foster family and how they live, but [that] when he grows up he will be able to choose for himself. This is how it is in Norway. We cannot choose a religion or culture for our children. We can inform them and have wishes about their choices, but the children choose for themselves. This is also how it will be for [X].",
"[The applicant] goes on to say that [X] cannot stay in that foster home and that [we] will return to the issue. The child welfare services emphasise that they believe [X] must stay where he is.",
"When it comes to going to church, [X] has not been to church that many times yet. [X] still sleeps every morning, so the foster parents have often taken turns going to church or being at home with [him]. [The applicant] scoffs a little at this. The caseworker continues that when [X] stops sleeping in the morning, there is a high probability that [X] will join [the family] in church more often. This is an important part of this family’s everyday life and when [X] lives there it is natural that he accompanies them. As he grows older, it will be natural to consider his wishes about whether or not he attends church with them. In addition, they will inform and teach [X] about Somalia, Islam and his [birth] culture to the extent that they are capable of doing so here in Norway.",
"Later when [X] grows up and if [the applicant] and he have a good relationship, it is not inconceivable that he can go with her to the mosque, but not now [while] he is little. This is something we need to eventually revisit.”",
"31. On 3 October 2012 the child welfare services sent a letter to the applicant, stating:",
"“Reference is made to the meeting with [the applicant] on 29 August 2012. At the meeting, [the applicant] stated that she does not want [X] to eat pork and go to church. [The applicant] asked the child welfare services for a letter describing how they relate to this wish.",
"The order to take [X] into care was heard by both the County Social Welfare Board ... (10 December 2010) and ... the District Court (6 September 2011). In both instances, the courts found in favour of the child welfare services and the child welfare services have had [X] in their care since December 2010. In their decisions and judgments, none of the courts has ruled on matters that have to do with the practice of religion.",
"Both the child welfare services and the foster home wish for good collaboration with the mother and seek to show respect for her religious beliefs. As the child welfare services see it, this is a long-term placement. This means that [X] will most likely stay in the foster home until he is an adult. [X] will grow up in the foster home and be an integrated part of the family.",
"The foster parents have Christian beliefs, attend church regularly, and a large part of their social relationships are through the church. As the child welfare services see it, it will not be in [X]’s best interests not to allow him to be a part of this. [X] will follow the foster family’s everyday life and, as a result, will go with them to church.",
"The foster family will not have the right to register him as a member of any denomination without the mother’s consent. When [X] is 15 years old, he can register or deregister himself as a member of denominations; see section 32 of the Children Act.",
"As [X] grows up, it will be natural to inform him about Islam and Somalia, based on his understanding and interest. Both foster parents are very enthusiastic about this. They fully appreciate that it is important to take his history seriously.",
"At a meeting with the foster parents and the child welfare services on 20 September 2012, the foster parents agreed to arrange for [X] to be served as little pork as possible. They have respect and understanding for [the applicant]’s religious beliefs. The foster parents will try to facilitate her request regarding this as far as possible. However, they cannot rule out that [X] will eat pork on rare occasions.”",
"32. On 11 September 2013 the child welfare services applied to the County Social Welfare Board for an order to withdraw the applicant’s parental responsibility in respect of X, and for consent to his adoption by the foster parents. An alternative request, that the applicant be refused contact with X, was also lodged.",
"33. In connection with the foster parents’ application for adoption, the child welfare services prepared a report on the adoption applicants, dated 11 October 2013. Under the heading “Motive for adopting”, the following information, inter alia, was included:",
"“Culture and religion are part of the thinking around adoption. It will be easier for [X] if he can be allowed to grow up with them without other disruptive elements regarding culture and religion. They know he will ask [about it] and they know it is important for him to obtain answers to questions that concern his differences in terms of skin colour, where he was born, etc. This is something they want to take seriously in order to be prepared to deal with his interest.",
"Also, when it comes to knowledge of his biological origins, they recognise that there will be work for them to do as [X] grows up. It is important to know your biological origins and we will not prevent this, say both [the adoptive parents]. On several occasions during their time as foster parents for the boy, the couple has expressed an interest in the child’s family, not only in Norway, but also in Somalia. If this (knowledge of his biological origins) becomes a strong desire before he turns 18, we must assess it based on his maturity, says [the adoptive mother]. How will this information affect him? Is this the right time?”",
"34. The Board, composed of one lawyer qualified to act as a professional judge, one psychologist and one lay person, heard the case from 27 to 28 February 2014. The meeting was attended by the municipality’s representative and its counsel, and by the applicant and her counsel. Testimony was given by twelve witnesses and an expert, K.P.",
"35. In its decision of 21 March 2014 the Board granted the child welfare services’ principal request. It found that X had become so attached to his foster parents that removing him from their home could lead to serious problems; it also found that the applicant would be permanently unable to provide him with proper care. Based on an overall assessment of the general and individual factors in the case, the Board found that there were particularly compelling reasons for granting consent to the foster parents to adopt X. In its view, adoption would be in X’s best interests, in that it would create stability and security for him. Adoption would also be more effective than long-term foster placement in contributing to his recovery at the personality level ( tilheling på det personlighetsmessige plan ). X’s rights would be strengthened through adoption and he would gain a stronger identity as a member of a caring family.",
"36. The Board stated that it considered it very important for the development of X’s identity, and for his understanding of his own life situation, that he be given information about his biological family in due course. The foster parents had expressed their willingness to contribute to providing X with information about his biological mother and her culture when he showed sufficient maturity to be able to benefit from such information. X’s identity would not be kept hidden from him, nor would the foster parents try to hide him should they happen to meet the applicant in the street.",
"37. Furthermore, the Board stated that X had already been placed in an ethnically Norwegian foster home. The foster parents were active Christians. He had lived in this environment for more than three years, and this was where he would grow up. His relationship with his mother had been broken off so early that one could not say that the placement had entailed a break with his culture and religion. It had involved a break with his cultural and religious heritage, however. Contact with his mother in the years ahead could potentially help to promote identity-forming values related to ethnicity in X. However, this factor could not be given decisive weight as an argument against adoption. Since contact with the applicant reactivated dysfunctional responses in X, the importance of the cultural aspect had to be deemed as being of secondary importance in relation to safeguarding X’s fundamental personality development.",
"38. In addition, the Board considered that adoption would place X on an equal footing with the foster parents’ four biological children, in particular one of them who still lived at their home and with whom X was accordingly growing up. Equal status with the latter could promote X’s feeling of equality, and this was an important consideration in favour of allowing the foster parents to adopt him.",
"39. Following an appeal by the applicant against the Board’s decision, the District Court appointed a psychological expert, S.H.G. In his report of 13 October 2014, the psychologist stated, inter alia, under the heading “The present situation”:",
"“The mother alternates between a traditional and more Norwegian style of dressing, but wears her head garment, is loyal to her Muslim culture and practices her religion. She stresses how much these values mean to her and believes that this also applies to her son – especially as he grows older. She has respect for other religions but is not happy for him to be taken to church without ever being taken to a mosque. ...",
"The foster parents are active Christians and members of the Norwegian Missionary Society, but state that they have great respect for the mother’s religion. The foster parents are passing on their culture to the children as this is what they know, but they emphasise independence and self-confidence.”",
"In a chapter entitled “Report on interviews with and observation of the mother, child, foster parents, and information from collateral sources”, the following information, inter alia, was included under the heading “Visit to the foster parents’ home”:",
"“Culture and religion? He came at such an early stage, so we have transferred what we know – Christian culture. But the foster mother says they have great respect for the mother’s culture and religion. We let our children decide for themselves, she says. We consider self-confidence and self-esteem to be most important. However, it would do him major harm to break with this now and enter something new. We will most likely tell him about the differences eventually and strengthen his identity. We could not take him to church because of the noise levels. We do so now, but it does not work optimally because there are too many people. We keep company with Christian people and read Christian books. He would also be unable to function in a mosque.”",
"The expert recommended that the District Court withhold consent to the adoption, and that the amount of access between the applicant and X should be gradually increased.",
"40. The District Court held a hearing from 4 to 6 November 2014. The court’s bench was composed of one professional judge, one psychologist and one lay person. Eight witnesses were called. The court-appointed expert attended and was present throughout the hearing and testified after the other evidence had been presented.",
"41. In its judgment of 21 November 2014, the District Court upheld the Board’s decision. The District Court endorsed the Board’s grounds for depriving the applicant of parental responsibility and granting consent for adoption, and referred to the Board’s reasons, but with some clarifications and additions. The District Court concurred with the assessments of psychologist K.P., who had been appointed as an expert before the Board (see paragraph 34 above), and not with those of S.H.G., who had been appointed as an expert by the District Court (see paragraph 39 above).",
"42. Within the reasons as to why the District Court concluded that an adoption would pertain to X’s best interest, the judgment stated, inter alia, that X had already been placed in an ethnically Norwegian foster home with a family of practising Christians. He had lived in that foster home for almost four years, and this was relevant to the District Court’s assessment as to where he would grow up. The District Court considered that the break with X’s cultural heritage had occurred when he was first taken into care.",
"43. On a further appeal by the applicant, the High Court held a hearing from 12 to 13 May 2015. The High Court’s bench comprised three professional judges, one psychologist and one lay person. The applicant attended, together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. Before the High Court, the applicant acknowledged that X had become so attached to his foster parents that a return to her would be difficult. She also accepted that X had reacted badly to the contact sessions and accepted that contact should possibly be avoided at certain periods in the future. However, she would not apply for his return and she argued that at that specific moment it could not be concluded with certainty that any contact with her in the future would be against X’s best interests. In particular, she argued that his need to keep in touch with his cultural and religious roots indicated that the possibility for future contact should be kept open.",
"44. In its judgment of 27 May 2015 the High Court stated that the parties agreed that X had become so attached to his foster parents that removing him could lead to serious problems, and that the High Court bench agreed unanimously with the parties on this point. It went on to reiterate that X had been placed with the foster parents when he was one year old and had, at the time of its judgment, been with them for four and a half years. Before this, he had spent two and a half months in an emergency foster home. He had lived with his biological mother for only the first ten months of his life. He regarded the foster parents as his parents and all the available information indicated that he was strongly attached to them.",
"45. In addition, X was a vulnerable child with special care needs. It had to be assumed that he would be at particular risk of serious harm if he were removed from the environment he was used to and placed in the care of his biological mother, with whom he had only had sporadic contact. Since a return to the applicant was in any event not being envisaged ( ei tilbakeføring under alle omstende [er] uaktuell ), it was unnecessary to decide on whether the applicant would be permanently incapable of providing appropriate care for him.",
"46. The decision in the case rested on an assessment of whether adoption would be in X’s best interests. A majority in the High Court concluded that it would, and generally agreed with the grounds given for this finding in the Board’s decision and the District Court’s judgment.",
"47. In the majority’s view, there were several risk factors relating to the applicant’s ability to provide proper care. In addition, many ( fleire ) persons had observed that the applicant had had serious difficulties caring for X during the first year in Norway. By the time of the High Court judgment, the applicant was older and seemed more mature. Given her age and history, it was understandable that she had experienced considerable challenges in caring for X. Her son had to be regarded as a child with special care needs and was possibly suffering from early attachment disorder. The majority found that he had been subjected to gross neglect, both physically and emotionally. The parent-child institution had indicated that he had been in physical danger several times while the applicant and X were staying there. Another witness, M.L., had also been concerned about the applicant’s ability to care for X on a practical level. In the High Court’s view, the most important aspect of the neglect nonetheless appeared to be the lack of emotional contact and security.",
"48. The High Court’s majority stated that these findings might reflect the applicant’s psychological functioning and her life circumstances during the pregnancy, birth and postnatal period, but that this had nevertheless created a serious situation for X and his development. He had displayed trauma reactions on seeing his mother again. These reactions following contact sessions could, for instance, include screaming for several hours at a time, or being agitated and anxious for several days. Similar reactions had also been noted at the kindergarten. His reactions had been observed both during and after the contact sessions. The hospital had also made a statement about them. The majority disagreed with psychologist S.H.G., who had considered that X’s reactions could be related to his emergency placement in care in 2010, as it found it unlikely that a separation from his biological mother when X had been ten months old could give rise to such reactions later in his life.",
"49. X had become calmer after the contact sessions had been discontinued in 2013. Since then, he had apparently only met the applicant twice. He had found these emotional outbursts after contact sessions with the applicant to be very stressful. He was still vulnerable to noise, large crowds and too many stimuli. This indicated that he was highly sensitive, which was to be expected in someone who was displaying reactions to trauma.",
"50. In the majority’s view, X needed to feel as secure as possible in his relationships. He needed stability, calm and continuity in the place where he lived at the time, namely in the foster home. The stronger the psychological development that could be secured, the better equipped he would be to deal with any identity issues that might arise during adolescence. All the available information suggested that X had a strong and fundamental attachment to his foster parents and foster family. Great emphasis had to be placed on this relationship, in line with the case-law of the Supreme Court.",
"51. The considerations of ensuring that a particularly vulnerable child would have a continued attachment to an environment in which he was deeply rooted had to be weighed against other relevant weighty considerations. The High Court reiterated that, in all cases, adoption entailed a breach of the biological principle, which was a major element in any decision. In the instant case, the foster parents had been unwilling to accept an “open adoption”, with future contact visits foreseen for the applicant, and there were additional aspects in the case related to ethnicity, culture and religion, and religious conversion. The fact that the applicant was a Muslim and the intended adoptive parents Christian raised special issues, which were further highlighted by the fact that the latter were active Christians who intended to baptise the adopted child.",
"52. An expert witness – N.S., a specialist in religious studies – had stated before the High Court that in Islam, the children of Muslims were regarded as Muslims as long as they had not been, for example, baptised. The parties had referred to a White Paper from a Government-appointed committee (NOU 2012: 5 Bedre beskyttelse av barns utvikling ), containing an assessment of adoption from a cultural and Islamic perspective. The White Paper stated that religion could be an obstacle to adoption for practicing Muslim families, since Islam had a general prohibition against adoption in the sense of making children born to other biological parents one’s own. Elsewhere, the White Paper had noted that various Muslim countries and Muslim schools of law had differing views on adoption, but they all had a prohibition against breaking the ties with the adoptive child’s biological family. The White Paper had concluded that the child welfare services faced a particular challenge when considering adoption as a child welfare measure for Muslim children. One of the members of the committee which drafted the White Paper had testified as an expert witness before the High Court, and stated that the committee had not wished to make recommendations one way or another with regard to the above observations; she had emphasised that each case was to be assessed on the basis of the child’s needs.",
"53. Based on international law sources, the High Court had not found that any prohibition could be inferred against the adoption of children from a Muslim background in Norway. Article 20(3) of the United Nations Convention on the Rights of the Child stated that when possible solutions, including adoption, were assessed, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (see paragraph 73 below). The best interests of the child should be a primary consideration in all actions and decisions concerning children, pursuant to Article 3(1) of the United Nations Convention on the Rights of the Child and the second paragraph of Article 104 of the Norwegian Constitution (see paragraphs 73 and 59 below, respectively). In adoption cases, the child’s best interests should be the paramount consideration, under Article 21 of the United Nations Convention on the Rights of the Child (see paragraph 73 below).",
"54. The High Court noted that the County Social Welfare Board had commented, in the context of the care order, on the choice of foster home, based on ethnic, cultural and religious considerations. Further information about which assessments had been carried out by the child welfare services when X had been placed in a foster home with ethnically Norwegian parents had not emerged during the presentation of evidence, but the High Court assumed that there had been no available foster parents with a more similar cultural background. It was known that there was a serious shortage of foster parents from minority backgrounds. Regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in the best interests of X at the time of the High Court’s judgment.",
"55. In the foster home, X had been brought up in accordance with his foster parents’ values. It had to be assumed that it was these values that he regarded as his own and with which he identified at the time of the High Court’s assessment. In this situation, consideration of the ethnicity, culture and religion of the biological family had to carry less weight than it would otherwise. In the event of a further foster home placement, X would also be exposed to the values of those foster parents. There was nonetheless an important distinction between being a foster child and an adopted child, since the parents, if the child were adopted, planned to baptise him and change his name. The applicant would experience this step as a final break with the religious values held by her and would find it difficult to accept. It was possible to feel that a more flexible solution would be to postpone the baptism until the child himself could decide on the matter when he turned fifteen, but nonetheless the majority could not see that these circumstances carried decisive weight against adoption.",
"56. The High Court’s majority considered that a further foster home placement could give rise to problems in connection with, for example, the applicant’s wishes that X be circumcised, attend Koranic school and follow Muslim food traditions. Her statement in the High Court that she had considered it best for X to remain with his foster parents had not been called into question, but the High Court was somehow uncertain ( noko usikker ) as to how permanent this opinion would be, and whether demands for X to be returned to her care would be made in future. A vulnerable boy such as X required a calm and stable situation. Adoption would create clarity, strengthen the development of X’s identity and make him an equal member of the family. In the light of the above considerations, the majority of the High Court bench found that there were particularly compelling reasons for authorising the adoption and thus voted to dismiss the applicant’s appeal.",
"57. The minority, one of the lay judges, found that the reasons for allowing the adoption were not sufficiently compelling, but that there were reasons for refusing to grant the applicant contact rights for the time being. The minority viewed the applicant’s ability to provide care in a slightly more positive light than the majority and emphasised that, for the moment, a continued foster home arrangement would be more flexible than adoption. Greater weight should also be placed on ethnic, cultural and religious considerations in the overall assessment of what would be in X’s best interests at the given time; this was highlighted in particular by the fact that adoption would entail religious conversion.",
"58. On 23 September 2015 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicant leave to appeal.",
"RELEVANT DOMESTIC and international LAW AND PRACTICE",
"Domestic law and practiceThe Constitution",
"The Constitution",
"The Constitution",
"59. Articles 16, 102 and 104 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in May 2014, read as follows:",
"Article 16",
"“All inhabitants of the realm shall have the right to free exercise of their religion. The Church of Norway, an Evangelical-Lutheran church, will remain the Established Church of Norway and will as such be supported by the State. Detailed provisions as to its system will be laid down by law. All religious and belief communities should be supported on equal terms.”",
"Article 102",
"“Everyone has the right to the respect of their privacy and family life, their home and their communication. Search of private homes shall not be made except in criminal cases. The authorities of the state shall ensure the protection of personal integrity.”",
"Article 104",
"“Children have the right to respect for their human dignity. They have the right to be heard in questions that concern them, and due weight shall be attached to their views in accordance with their age and development.",
"For actions and decisions that affect children, the best interests of the child shall be a fundamental consideration.",
"Children have the right to protection of their personal integrity. The authorities of the State shall create conditions that facilitate the child’s development, including ensuring that the child is provided with the necessary economic, social and health security, preferably within their own family.”",
"It follows from the Supreme Court’s case-law – for instance its judgment of 29 January 2015 ( Norsk Retstidende (Rt-2015-93), paragraphs 57 and 67) – that the above provisions are to be interpreted and applied in the light of their international law models, which include the United Nations Convention on the Rights of the Child, the European Convention on Human Rights and the case-law of the European Court of Human Rights.",
"Human Rights Act",
"60. Sections 2 and 3 of the Human Rights Act of 21 May 1999 ( menneskerettsloven ) read, in so far as relevant:",
"Section 2",
"“The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway:",
"1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...",
"4. The Convention of 20 November 1989 on the Rights of the Child, together with the following protocols: ...”",
"Section 3",
"“The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.”",
"Child Welfare Act",
"61. The two first paragraphs of section 4-15, section 4-20 and the second paragraph of section 4-22 of the Child Welfare Act of 17 July 1992 ( barnevernloven ) read:",
"Section 4-15. Choice of placement in the individual case",
"“Within the framework determined in section 4-14, the placement shall be chosen on the basis of the child’s distinctive characteristics and need for care and training in a stable environment. Due account shall also be taken of the desirability of ensuring continuity in the child’s upbringing, and of the child’s ethnic, religious, cultural and linguistic background. Account shall also be taken of the likely duration of the placement, and of whether it is possible and desirable for the child to have access to and other contact with the parents.",
"In its proposal to the county social welfare board the child welfare service shall give an account of the points of view upon which the choice of placement in the individual case should be based. In its order the county social welfare board may attach conditions to the placement. If it is not possible for the child to be placed as stipulated in the proposal or the order, the matter shall be resubmitted to the county social welfare board.”",
"Section 4-20. Deprivation of parental responsibility. Adoption",
"“If a county social welfare board has made a care order for a child, the county social welfare board may also decide that the parents shall be deprived of all parental responsibility. If, as a result of the parents being deprived of parental responsibility, the child is left without a guardian, the county social welfare board shall as soon as possible take steps to have a new guardian appointed for the child.",
"When an order has been made depriving the parents of parental responsibility, the county social welfare board may give its consent for a child to be adopted by people other than the parents.",
"Consent may be given if",
"(a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and",
"(b) adoption would be in the child’s best interests, and",
"(c) the adoption applicants have been the child’s foster parents and have shown themselves fit to bring up the child as their own, and",
"(d) the conditions for granting an adoption under the Adoption Act are satisfied.",
"When the county social welfare board consents to adoption, the Ministry shall issue the adoption order.”",
"Section 4-22. Foster homes",
"“Persons selected as foster parents shall have a special aptitude for giving children a secure and good home, and be capable of discharging their responsibilities as foster parents in accordance with the conditions on which the duration of the placement etc. (see section 4-15), is based.”",
"62. On 27 March 2020, the Supreme Court, sitting in a Grand Chamber formation, gave judgment and decisions in three childcare cases (HR ‑ 2020 ‑ 661-S, HR-2020-662-S and HR-2020-663-S) in order to draw up guidelines for the application of the Child Welfare Act in the light of the European Court of Human Rights’ judgments in the case of Strand Lobben and Others v. Norway ([GC], no. 37283/13, 10 September 2019) and subsequent cases concerning childcare measures adopted in the respondent State.",
"63. One of the above rulings (HR-2020-661-S) concerned an appeal against the High Court’s refusal to grant leave to appeal in a case about deprivation of parental responsibility and consent to adoption, in which the Supreme Court carried out an in-depth examination of the Court’s case-law in conjunction with the domestic case-law and practice, in order to clarify the Convention requirements and identify and resolve any possible inconsistencies with a view to ensuring compliance with the Convention.",
"64. In respect of cases where the replacement of foster care with adoption was at issue, the Supreme Court concluded that the general legal conditions, as they were expressed in the Child Welfare Act and the Supreme Court’s case-law, were compliant with the Convention and the Court’s case-law and thus could be maintained, but found that adjustments were still called for in Norwegian child welfare practice. Under the heading “Summarising remarks on reunification”, the Supreme Court stated the following:",
"“(142) Based on the presentation of the Child Welfare Act as interpreted in case-law and judgments by the European Court of Human Rights, the status of the law may in my opinion be summarised as follows:",
"(143) Under both Norwegian law and the European Convention on Human Rights, the overall goal is to have the care order revoked and the family reunited. A care order is therefore always temporary as a starting point. The authorities have a positive duty to strive actively to maintain the relationship between the child and the parents and to facilitate reunification. This implies that the authorities must monitor developments closely. Contact rights and assistance measures are crucial here. As long as reunification is the goal, contact must be arranged to make this possible. The authorities are to ensure, to the extent possible, that the contact sessions are of a good quality. If the sessions do not work well, one must try out adjustments or alternatives, for instance arranging them elsewhere, or under guidance.",
"(144) As long as family reunification is the goal, the purpose of access is not only to ensure that the child knows who his or her parents are, but also to preserve the possibility of reunification. This requires a thorough assessment of the frequency and quality of the contact sessions. And even when reunification is not possible, there is an intrinsic value in maintaining family bonds, so long as this does not harm the child.",
"(145) In my opinion, and depending on the situation, the child welfare services should in principle not be prevented early in the process – when choosing where to place a child (section 4-14 of the Child Welfare Act) and preparing a care plan (section 4-15) – from assuming that the placement will be long-term. If siblings are involved, an individual assessment must be made with regard to each child. However, the extent of contact must in any case be determined with a view to a future return of the child to his or her biological parents. This applies until a thorough and individual assessment at a later stage demonstrates that this goal should be abandoned, despite the authorities’ duty to facilitate reunification. In any event, the frequency of the contact sessions cannot be determined in a standard way, and it must be borne in mind that a strict visiting regime may render reunification more difficult.",
"(146) It is crucial that the authorities do their utmost to facilitate family reunification. However, this goal may be abandoned if the biological parents have proved particularly unfit; see, for instance, Strand Lobben, paragraph 207. Such a situation may also affect which measures the child welfare authorities need to apply. In this assessment the interests of the child are also of paramount importance. However, this does not automatically preclude contact altogether while the child is in foster care. The parents may be competent in contact situations but lack the caring skills necessary for reunification. Maintaining family ties, even if the goal of reunification has been abandoned, still has a value in itself.",
"(147) Secondly, the parents cannot request measures that may harm the child’s health and development; see Strand Lobben, paragraph 207. Adoption may therefore take place if it can be established that continued placement will harm the child’s health or development. In addition, reunification may – even in the absence of such damaging effects – be ruled out when a considerable amount of time has passed since the child was originally taken into care, so that the child’s need of stability overrides the interests of the parents; see paragraph 208 of the judgment. In any event, the child welfare authorities and the courts must, before deciding on a possible adoption, make an individual assessment based on a solid factual basis and thorough proceedings.",
"(148) Accordingly, in these three situations, one must bear in mind that it is in the very nature of adoption that no real prospects for family reunification exist and that it is instead in the child’s best interests to be placed permanently in a new family; see Strand Lobben, paragraph 209.”",
"65. In this Grand Chamber decision, the Supreme Court also stated that judgments by the European Court had demonstrated that the decision ‑ making process, the balancing exercise or the reasoning had not always been adequate. In particular, the Court had found violations with regard to the authorities’ duty to work towards reunion of the child and the parents. As to the dilemmas represented by the choice of perspective when assessing possible errors or shortcomings, the Supreme Court stated as follows:",
"“(114) When Norwegian courts, and ultimately the Supreme Court, review orders issued by the child welfare authorities, they apply the Child Welfare Act in line with the principle of the best interests of the child; see the second paragraph of Article 104 of the Constitution, Articles 3 and 9 of the Convention on the Rights of the Child and section 4-1 of the Child Welfare Act, which I have already mentioned. At the same time, the case-law must be in accordance with the European Convention on Human Rights, and the Supreme Court has adjusted its interpretation of the Child Welfare Act to the Court’s case-law.",
"(115) If errors have been committed by the child welfare services or the County Social Welfare Board at an earlier stage of the proceedings (for instance due to inadequate remedial measures, or because the basis for the decision or its reasoning was unsatisfactory), the court may, depending on the circumstances, seek to remedy such errors by setting aside a care order or an adoption order. In other cases, the court may alter a previous decision, for example by increasing the granted access. However, if no such options are available and depending on the situation, the court will have to choose foster care or adoption if it is clear at the time of the judgment that this is in the best interests of the child, despite previous errors in the consideration of the case. To what extent not just the error, but also the final Norwegian ruling, must be regarded as a violation of Article 8, if the Court finds a violation at a later stage, thus relies on an interpretation of the Court’s judgment.",
"(116) In order to prevent such a situation from occurring before the review instances, it is important that the child welfare services and the County Social Welfare Board – in seeking to identify the measures that best serve the child – consider from the very outset all relevant requirements laid down in the second paragraph of Article 104 of the Constitution, Article 8 of the Convention, the Convention on the Rights of the Child and chapter 4 of the Child Welfare Act.”",
"66. The Supreme Court delivered a further decision on 11 June 2020 (HR-2020-1229-U), in which it also stressed the temporary nature of care orders and the aim of reunification in the light of this Court’s case-law. Furthermore, it decided on two cases concerning the conditions under domestic law for lifting care orders on 15 September 2020 (HR ‑ 2020 ‑ 1788 ‑ A and HR-2020-1789-A). With reference to its decisions of 27 March 2020, it reiterated on 15 September 2020 that the general conditions set out in the Child Welfare Act and domestic case-law – including the “threshold” for issuing care orders – could be maintained, but that the practice in respect of their application to concrete cases needed some adjustment in the light of the judgments of the European Court of Human Rights.",
"67. A new child welfare act was adopted by Parliament on 18 June 2021 but has not yet entered into force. The relevant preparatory works (Bill No. 133 (2020-2021) ( Ny barnevernslov ), page 35) stated that this Court’s judgments as well as the above-mentioned case-law from the Supreme Court had been central to the work leading to the proposal of the new act.",
"Foster Home Regulation and Circular",
"68. The Foster Home Regulation of 18 December 2003 ( fosterhjemsforskriften ) includes further detailed rules on foster homes. Under section 3 of the Regulation, foster parents must have the special abilities, time and energy to provide the child with a safe and good home. Foster parents must have stable living conditions, normal good health, and good interpersonal skills. They also must have the finances, home and social network required to provide the child with the opportunity to live a full life. Section 4 of the Regulation states that in choosing a foster home, the child welfare services are to give decisive importance to what is in the child’s best interests. The child welfare services must assess whether the foster parents have the requisite abilities to take care of the individual needs of the child. The child welfare services are to give appropriate consideration to the child’s ethnic, religious, cultural and linguistic background.",
"69. The Ministry of Children and Families ( Barne- og familiedepartementet ) issued a circular on guidelines in respect of foster homes on 15 July 2004 (Q-2004-1072 B). Among other points, the circular states that the child welfare services must give appropriate consideration to the child’s ethnic, religious, cultural and linguistic background. Where the child’s parents belong to a religious or linguistic minority, this will not always be possible. With regard to religious background, the child welfare services should nevertheless, to the extent possible, avoid placing children with foster parents who have a philosophy of life that differs substantially from that of the parents.",
"Children Act",
"70. The Act relating to Children and Parents (the Children Act) of 8 April 1981 ( barnelova ) included at the relevant time the following provisions:",
"Section 30. Meaning of parental responsibility",
"“The child is entitled to care and consideration from those who have parental responsibility. These persons have the right and the duty to take decisions for the child in personal matters within the limits set by sections 31 to 33. Parental responsibility shall be exercised on the basis of the child’s interests and needs.",
"Those who have parental responsibility are under an obligation to bring up and maintain the child properly. They shall ensure that the child receives an education according to his or her ability and aptitude.",
"The child must not be subjected to violence or in any other way be treated so as to harm or endanger his or her mental or physical health. This shall also apply when violence is carried out in connection with the child’s upbringing. Use of violence and frightening or annoying behaviour or other inconsiderate conduct towards the child is prohibited. ...”",
"Section 31. The child’s right of co-determination",
"“As and when the child becomes able to form his or her own point of view on matters that concern him or her, the parents shall consider the child’s opinion before making a decision on the child’s personal situation. Importance shall be attached to the opinion of the child according to his or her age and maturity. The same applies to other persons with custody of the child or who are involved with the child.",
"A child who has reached the age of seven and younger children who are able to form their own points of view must be provided with information and opportunities to express their opinions before decisions are taken concerning personal matters affecting them, including parental responsibility, custody and access. The opinions of the child shall be given weight according to his or her age and maturity. When the child reaches the age of 12 his or her opinion shall carry significant weight.”",
"Section 32. Education, membership of associations",
"“Children who have reached the age of 15 shall themselves decide the question of choice of education and of applying for membership of or resigning from associations.”",
"Section 33. The child’s right to make his or her own decisions",
"“Parents shall steadily extend the child’s right to make his or her own decisions as he or she gets older and until he or she reaches the age of 18.”",
"Adoption Act",
"71. The Adoption Act of 28 February 1986 ( adopsjonsloven ), in force at the relevant time, contained, inter alia, the following provision:",
"Section 13",
"“On adoption, the adopted child and his or her heirs shall have the same legal status as if the adopted child had been the adoptive parents’ biological child, unless otherwise provided by section 14 or another statute. At the same time, the child’s legal relationship to his or her original family shall cease, unless otherwise provided by special statute. ...”",
"Act relating to religious communities, etc.",
"72. The Act relating to religious communities, etc. of 13 June 1969 ( lov om trudomssamfunn og ymist anna ) includes the following provisions:",
"Section 3",
"“Anyone over the age of 15 may join or resign from a religious community.”",
"Section 6",
"“When the parents do not both belong to the Church of Norway they may together make the child a member of a religious community or withdraw the child from such a community as long as the child is under 15 years of age.",
"When only one of the parents has parental responsibility for the child, he or she may make this decision alone.",
"If neither of the parents has parental responsibility for the child, the guardian may make the child a member of a religious community or withdraw the child from such a community.",
"If possible, children of 12 years of age or more shall be allowed to express their opinions concerning registration or resignation of membership.”",
"International law materials",
"73. Articles 3, 5, 8, 9, 14, 20, 21 and 30 of the United Nations Convention on the Rights of the Child, adopted on 20 November 1989, in so far as relevant, read:",
"Article 3",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”",
"Article 5",
"“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”",
"Article 8",
"“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. ...”",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.",
"2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.",
"3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. ...”",
"Article 14",
"“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.",
"2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.",
"3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”",
"Article 20",
"“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.",
"2. States Parties shall in accordance with their national laws ensure alternative care for such a child.",
"3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”",
"Article 21",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; ...”",
"Article 30",
"“In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”",
"74. Resolution 64/142 on Guidelines for the Alternative Care of Children, adopted by the United Nations General Assembly on 18 December 2009, includes the following paragraphs:",
"“11. All decisions concerning alternative care should take full account of the desirability, in principle, of maintaining the child as close as possible to his/her habitual place of residence, in order to facilitate contact and potential reintegration with his/her family and to minimize disruption of his/her educational, cultural and social life. ...",
"16. Attention must be paid to promoting and safeguarding all other rights of special pertinence to the situation of children without parental care, including, but not limited to, access to education, health and other basic services, the right to identity, freedom of religion or belief, language and protection of property and inheritance rights. ...",
"57. Decision-making on alternative care in the best interests of the child should take place through a judicial, administrative or other adequate and recognized procedure, with legal safeguards, including, where appropriate, legal representation on behalf of children in any legal proceedings. It should be based on rigorous assessment, planning and review, through established structures and mechanisms, and should be carried out on a case-by-case basis, by suitably qualified professionals in a multidisciplinary team, wherever possible. It should involve full consultation at all stages with the child, according to his/her evolving capacities, and with his/her parents or legal guardians. To this end, all concerned should be provided with the necessary information on which to base their opinion. States should make every effort to provide adequate resources and channels for the training and recognition of the professionals responsible for determining the best form of care so as to facilitate compliance with these provisions. ...",
"58. Assessment should be carried out expeditiously, thoroughly and carefully. It should take into account the child’s immediate safety and well-being, as well as his/her longer-term care and development, and should cover the child’s personal and developmental characteristics, ethnic, cultural, linguistic and religious background, family and social environment, medical history and any special needs. ...",
"88. Children should be allowed to satisfy the needs of their religious and spiritual life, including by receiving visits from a qualified representative of their religion, and to freely decide whether or not to participate in religious services, religious education or counselling. The child’s own religious background should be respected, and no child should be encouraged or persuaded to change his/her religion or belief during a care placement.”",
"75. The United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, includes, inter alia, the following paragraphs:",
"“38. In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be “ a primary consideration” but “ the paramount consideration”. Indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues.",
"...",
"55. Children are not a homogeneous group and therefore diversity must be taken into account when assessing their best interests. The identity of the child includes characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, personality. Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child’s best interests.",
"56. Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background (art. 20, para. 3), and the decision-maker must take into consideration this specific context when assessing and determining the child’s best interests. The same applies in cases of adoption, separation from or divorce of parents. Due consideration of the child’s best interests implies that children have access to the culture (and language, if possible) of their country and family of origin, and the opportunity to access information about their biological family, in accordance with the legal and professional regulations of the given country (see art. 9, para. 4).",
"57. Although preservation of religious and cultural values and traditions as part of the identity of the child must be taken into consideration, practices that are inconsistent or incompatible with the rights established in the Convention are not in the child’s best interests. Cultural identity cannot excuse or justify the perpetuation by decision-makers and authorities of traditions and cultural values that deny the child or children the rights guaranteed by the Convention.”",
"76. The following remarks were included in the United Nations Committee on the Rights of the Child’s Concluding observations on the combined fifth and sixth periodic reports of Norway (CRC/C/NOR/CO/5-6) of 4 July 2018:",
"“21. Drawing the State party’s attention to the Guidelines for the Alternative Care of Children, the Committee emphasizes that financial and material poverty — or conditions directly and uniquely attributable to such poverty — should never be the sole justification for removing a child from parental care, for receiving a child into alternative care or for preventing a child’s social reintegration. In this regard, the Committee recommends that the State party: ...",
"(f) Take the measures necessary, including adequate training of personnel, to ensure that children belonging to an indigenous or national minority group who are placed in alternative care learn about and maintain their connection to their native culture; ...”",
"77. Article 18 of the United Nations International Covenant on Civil and Political Rights, adopted on 16 December 1966, reads as follows:",
"Article 18",
"“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.",
"2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.",
"3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.",
"4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”",
"78. The third paragraph of Article 13 of the United Nations International Covenant on Economic, Social and Cultural Rights, adopted on 16 December 1966, reads as follows:",
"Article 13",
"“3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”",
"79. The first to fourth paragraphs of Article 5 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly resolution 36/55 of 25 November 1981, read as follows:",
"Article 5",
"“1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.",
"2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.",
"3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.",
"4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle.”",
"Comparative law observations",
"80. The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in 41 States Parties to the Convention (namely Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Montenegro, North Macedonia, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Switzerland, Turkey, Ukraine, and the United Kingdom) as it relates to the subject matter of the case.",
"81. According to the information available to the Court, in at least 11 States or jurisdictions (Armenia, Azerbaijan, the Flemish Community of Belgium, Finland, France, Hungary, the Netherlands, Montenegro, Poland, Russia and Spain), a requirement to take account of the religious, ethnic or linguistic backgrounds in adoption or foster care proceedings follows directly from laws or regulations. In at least six States (Albania, Ireland, North Macedonia, Slovenia, Switzerland and the United Kingdom), a requirement to take into account the religious, ethnic, cultural and linguistic backgrounds of the concerned children and adults is mostly laid down not by laws or regulations but by infra-legislative administrative acts such as instructions and circulars.",
"82. Furthermore, in at least 15 States (Austria, Azerbaijan, Bosnia and Herzegovina, France, Italy, Moldova, Montenegro, the Netherlands, North Macedonia, Poland, Romania, Slovenia, Spain, Switzerland and the United Kingdom), the requirement to take into account the religious, ethnic, cultural and linguistic backgrounds is not shaped as an independent obligation, but as a specific aspect of the more general fundamental criterion of the “best interest of the child” or “the child’s welfare”. Moreover, in Ireland there is an obligation to “where possible” respect the wishes of the child’s guardian as to the child’s religious upbringing and the religion of the prospective foster parents and in Northern Ireland there is a rather clear obligation of result. None of the other States covered by the Court’s research provides a positive obligation to place the child in a family sharing his/her religious, ethnic, cultural and linguistic identity or that of his/her biological parents. There is only a procedural obligation to “take it into account” as one of the criteria for choosing an adoptive and/or foster family. However, it is never the weightiest or the decisive criterion, and it may be outweighed by other considerations within the general framework of the “best interest of the child”."
] | [
"THE LAW",
"ALLEGED VIOLATION OF ARTICLEs 8 and 9 OF THE CONVENTION and article 2 of protocol no. 1 to the convention",
"83. The applicant initially complained that the withdrawal of her parental responsibility in respect of her son, X, and the authorisation granted to his foster parents to adopt him, had violated her right to respect for family life as guaranteed by Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"84. Furthermore, the applicant complained that the above measures had entailed a violation of her right to freedom of religion as guaranteed by Article 9 of the Convention, which provides:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"85. In addition, in the proceedings before the Grand Chamber, the applicant relied on Article 2 of Protocol No. 1 to the Convention, which provides:",
"“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”",
"The Chamber judgment",
"86. The Chamber, referring to fact that the Court was the master of the characterisation to be given in law to the facts of the case, considered that the applicant’s submissions relating to her and X’s cultural and religious background, within the particular context of the case, also fell to be examined under Article 8. It went on to declare the complaint under Article 8 admissible.",
"87. With regard to the merits, the Chamber stated that the general principles applicable to cases involving child welfare measures, such as those at issue, were well-established in the Court’s case-law and had recently been set out extensively in the case of Strand Lobben and Others, cited above, §§ 202-213. In applying those principles to the case, it noted that in the domestic proceedings the applicant had not applied for the care order to be lifted and accordingly to be reunited with X; she had only requested that her parental responsibility in respect of X not be removed and that consent to his adoption be refused. Furthermore, although the applicant had not appealed against the District Court’s judgment or even applied to the Court when the care order was originally issued, the Chamber went on to find that the decisions on contact rights taken in the course of those proceedings meant that there had only been minimal contact between the applicant and X from the very outset, contrary to the principle under Article 8 that the contact regime ought to guard, strengthen and develop family ties. That being the case, the Chamber had difficulties in considering that the domestic authorities could be said to have taken any real measures to facilitate family reunification before deciding to approve X’s adoption.",
"88. The Chamber also considered that the High Court had provided limited grounds for the findings in respect of the nature and causes of X’s reactions to contact with the applicant, to which it had attached importance when deciding on the adoption. Adding to the other specific reasons that militated in favour of maintaining the possibility of some contact between X and the applicant, particularly those relating to their cultural and religious background, the above considerations led the Chamber to conclude that in the course of the case culminating in X’s adoption, insufficient weight had been attached to the aim that the applicant and X enjoy family life. Emphasising the gravity of the interference and the seriousness of the interests at stake, the Chamber did not consider that the decision-making process leading to the impugned decision to withdraw the applicant’s parental responsibility in respect of X and to authorise his adoption had been conducted in such a manner as to ensure that all of the applicant’s views and interests were duly taken into account. The Chamber concluded that there had been a violation of Article 8 of the Convention.",
"The parties’ submissionsThe applicant",
"The applicant",
"The applicant",
"89. The applicant maintained that the question as to whether Article 8 of the Convention had been violated was a bygone conclusion following the Chamber’s judgment. The applicant had not requested referral to the Grand Chamber with reference to that provision, and the respondent Government had not requested referral. They should therefore be estopped from arguing that there had been no violation of Article 8. Moreover, in the applicant’s view there had plainly been a violation of that provision. She argued that the foster placement in the instant case had put even greater strain on the bond between the biological mother and the child than in the case of Strand Lobben and Others, cited at paragraph 62 above, since X, in contrast to the child involved in that case, had been cut off from his cultural, ethnic, linguistic and religious roots.",
"90. The visits that had been carried out during X’s foster care had taken place under supervision and had not given the applicant and X enough space to develop a family bond. After a while the foster parents had stopped calling the applicant “mum”.",
"91. In the applicant’s view, Article 8 should be interpreted in the light of Article 9 of the Convention and Article 2 of Protocol No. 1. Questions regarding violations of freedom of religion should, however, be kept separate from Article 8 and the issue arising under Article 9 merited its own discussion. For a parent to raise a child in accordance with his or her religion or belief was a manifestation of that religion or belief, and this practice was at the core of the perception of what religious freedom is; it was also universal to all religions and belief systems.",
"92. The applicant submitted that, contrary to section 4-15 of the Child Welfare Act, no attempts had been made to find a foster home that had matched her cultural and religious background. There had therefore been a breach of the lawfulness requirement in Article 9 of the Convention; reference was also made to Article 7. The child should have been placed in a Muslim foster family with Somali roots or, if not possible, at least a Muslim family. In her observations before the Grand Chamber, the applicant submitted that it was not correct to assert that the authorities had made efforts to facilitate such a placement. In her subsequent pleadings she argued that she had been unaware of and not involved in any efforts that had been made. She also argued that, by setting the adoption in motion, the child welfare services had made a decision that had also violated the child’s rights, as they had permitted indoctrination of the child away from his religion, in contravention of Article 9 and Article 2 of Protocol No. 1 to the Convention. Furthermore, the foster family had not been sufficiently informed by Norwegian authorities about how to respect and take account of the foster child’s religious identity and their duty not to convert the child to their religion.",
"93. Furthermore, nothing even approaching such sound and weighty considerations as were required by the Court’s case-law in order to justify the severing of family ties had been proffered by the domestic authorities in the instant case. All the ties to the applicant’s religion had been severed through the adoption, because the foster family had wished to baptise the child and had done so following the adoption. Furthermore, conversion to another religion was considered to be apostasy in Islam and a crime under Sharia law. Moreover, following the adoption, the child’s name had been changed. Naming a child was a parent’s prerogative and a name was often a bearer of familial, cultural and religious tradition. In the present case, there had been an especially strong religious connotation to his name and the name change had been directly related to the adoptive parents’ religion. The name change in itself therefore fell within the scope of Article 9 of the Convention in this case.",
"94. The applicant argued that, throughout her whole case, she had been vocal about her religious identity and her specific wishes for a religious upbringing for the child. Placing the child with the particular family at issue had not been done in the pursuit of a legitimate aim; the legitimate aim would have been to reunite the child with the applicant. The violation of Article 9 of the Convention was not something that occurred at the specific time of adoption; it had first occurred when the child was placed with his foster family and was continuous throughout the duration of the placement.",
"95. The applicant maintained that Article 2 of Protocol No. 1 applied to the facts of her case. It was clear from the Court’s case-law that the placement of a child in public care did not cause the parents to lose all their rights under that provision.",
"96. In the applicant’s view, Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 interacted and had to be interpreted in the light of Article 14 of the Convention. A “religiously neutral” policy of child placements systematically benefitted religious majorities, as children belonging to such groups would be more likely to be placed with someone of the same religion than those belonging to minorities. The case also involved a child who had been christened into a missionary church outside the religious mainstream whose activities could be described by the majority as indoctrination, and natural parents belonging to the Christian majority could also have objected to fostering and adoption on those grounds.",
"97. In the applicant’s opinion, the Court should attach great weight to the measures that predated the acts brought before it, as the manner in which they had been made had paved the way for the subsequent adoption. She asserted that, by not considering her rights under Article 9 of the Convention and Article 2 of Protocol No. 1, the Norwegian authorities had not fulfilled their duty as the primary guarantors of Convention rights, as required by Article 1 of the Convention.",
"98. Before the Grand Chamber, the applicant asked that the Court make a statement regarding indicative measures under Article 46 of the Convention. She submitted in that context that the domestic procedural law provided for reopening of judgments in which the Convention had been misapplied.",
"The Government",
"99. The Government argued that the Chamber had correctly subsumed the case’s cultural and religious aspects under Article 8 of the Convention. The complaint related to the applicant’s own sentiments in respect of her son’s upbringing, which were suitably encompassed by the interests of parents, integral to the proportionality assessment under the second paragraph of that provision. They also pointed out that Article 8 protects the parent’s “private life”, which included, among other things, individual ethnicity as well as the relationship between parent and child.",
"100. Based on the criteria set out by the Court in the case of Strand Lobben and Others, cited above, the Government argued that there had been no violation of Article 8 in the instant case. The Chamber had built on its own assessment of evidence and had failed to refer to relevant facts; in so doing, it had departed from the Court’s subsidiary and procedural role. The Chamber had, among other things, made no reference to the efforts made by the domestic authorities to enable the applicant to maintain her relationship with her child, nor to the efforts made by those authorities prior to the emergency decision.",
"101. In that context, the Government pointed out that in the period which had elapsed from the point at which X was placed in an emergency care home (that is, at the turn of September and October 2010) until the municipal child welfare office applied for foster parent adoption (on 11 September 2013), and then again until his adoption was confirmed in 2015, several assistance measures were adopted. These included the initial and comprehensive follow-up from two asylum centres, before arrangements were made for the applicant to live in a house with professionals who had been contracted by the municipality to help, assist and guide the applicant, with whom her son was then residing. From January 2011 the applicant had stayed for two years in a shared house for single minor asylum seekers, where she had been supported day and night by therapists. In January 2013 she had moved into a flat in shared accommodation, where staff had monitored her regularly. She had received continuous training in everyday activities and been given considerable medical and educational assistance. While all these measures had been conducive to aiding the applicant in maturing, becoming independent and being able to act as a responsible adult who could resume looking after her child, the applicant had shown no improvement in her caring skills. At the same time X had had extraordinary needs.",
"102. The domestic authorities’ decisions showed that there had been exceptional circumstances behind the decision to deprive her of parental responsibility and to consent to adoption and that these measures had been justified, since they were motivated by an overriding requirement pertaining to the child’s best interests.",
"103. The Government submitted that, in the circumstances of the instant case, no separate issues arose in respect of either Article 9 of the Convention or Article 2 of Protocol No. 1. As to Article 9 in general, they were however prepared to assume that making choices motivated by religion on behalf of one’s child might amount to a religious “manifestation” under that provision. They further stated that regardless of whether the case was assessed through the lens of negative or positive obligations under Article 9, a balancing of the different interests at stake had to be carried out.",
"104. The child welfare services had tried to accommodate the applicant’s wish that her son be placed in a Somali and Muslim foster home. They had contacted a cousin of the applicant, a Somali couple, as well as an Afghan Muslim family, but without success. Despite efforts over many years to recruit Muslim foster parents in Norway, it remained difficult to find such homes. The child welfare services had thus had due regard to the applicant’s wishes and had made the efforts that could be reasonably expected of them to find a Muslim foster home, but when the search for such a home proved unsuccessful, X’s interests in obtaining a rapid placement overrode the applicant’s interests.",
"105. During the foster home placement, the child welfare services had assessed cultural and religious aspects of the foster home stay as part of their supervision of the foster home. The child welfare services had been aware of, and sensitive to, the importance of preserving the child’s cultural and religious background in order to safeguard the goal of a future reunification. X’s foster parents had also participated in a training course which emphasised the importance of preserving this background.",
"106. The Government accepted that the subsequent adoption had interfered with the applicant’s right to manifest her religion, notwithstanding the fact that some of her freedom of religion in that respect had already been removed by virtue of the care order. The decision to consent to adoption had however been based on what was in X’s best interests. The religious and cultural aspects of the case had been extensively discussed and a balanced and well-founded assessment, in which the applicant’s interests had been weighed against X’s interest in remaining with the family with which he had lived for more than three years, had been made by the High Court. The High Court had heard and relied on the witness statements of two experts in Islam regarding the placement of a Muslim boy with Christian foster parents and had had considerable and detailed regard to the applicant’s and the boy’s interests in having their faith respected. The margin of appreciation had not been exceeded.",
"107. While the Government were principally of the view that no separate questions arose either under Article 9 of the Convention or under Article 2 of Protocol No. 1, they argued, in the alternative, that Article 9 was more suitable than Article 2 of Protocol No. 1, as the functions assumed by the respondent State in this case fell outside the scope of “education” and “teaching” in the sense of the latter provision.",
"108. The Government stated that most decisions under Article 2 of Protocol No. 1 had concerned activities in schools and other educational institutions. By removing X from his biological parent and placing him with foster parents, the State had conceivably and in a certain manner interfered with his “teaching”, but this was “teaching” taking place in a family environment and significantly different from the “teaching” taking place in State schools in so far as this concerned its content, context and purpose.",
"109. The principles developed under Article 2 of the Protocol were not well suited to addressing the issues at stake. In the Government’s view, those principles reflected the balancing of interests required in an educational institution in the light of the school’s function as an arena of integration, pluralism and knowledge transmission. The balancing of interests in a case such as the present one was different; the interests of the individual child played a predominant role and the balancing of interests between different religious groups was of less importance. The Government added that while education was generally examined from the angle of that provision, this had not excluded the Court from reviewing cases relating to education under Article 9.",
"Third parties",
"(a) The Government of Denmark",
"110. The Danish Government focused its intervention on the general principles guiding deprivation of parental responsibility and adoption without parental consent. In essence, they argued that the Court should – in line with the principle of subsidiarity – not substitute its own substantive balancing of interests for that of the national authorities but rather review the national authorities’ decision-making process in such cases. Moreover, the Danish Government argued that the Court should confirm the best interests of the child as the primary consideration in cases relating to child welfare, such as adoption cases.",
"111. In the Danish Government’s view, the Chamber had conducted a substantive scrutiny of the national decisions and, in its assessment, indicated a move towards attaching increased weight to the interests of the parents and, in consequence, had decreased the weight that was to be attached to the best interests of the child.",
"112. With regard to the issue of the choice of foster home, the Danish Government found that the best interests of the child should be the guiding factor. When choosing a foster family, the authorities should have regard for the child’s needs and life situation, including the child’s cultural and religious background and needs. Sometimes, however, it would not be possible to find a family with a similar cultural and religious background to that of the child and his or her parents, notably owing to a lack of foster families with such backgrounds. When necessary and in the best interests of the child to be removed from his or her parents, this should not prevent the child being placed with a foster family even if they were of a different cultural and religious background.",
"(b) The Government of the Czech Republic",
"113. The Czech Government stressed that, when assessing the compliance of State authorities with their obligations under Article 8 of the Convention, it was necessary to take due account of the situation of all members of the family, as that provision guaranteed protection to the whole family. Moreover, they stressed that there was a broad consensus that in all decisions concerning children, their best interests must be paramount. The “best interests” principle was however not designed to be a kind of a “trump card” and the paramountcy of the child’s interests did not mean that the Contracting States should give up on the biological parents’ right to family life.",
"114. On the topic of contact between the biological parents and their child in public care and other measures to reunite the family, the Czech Government pointed out that, under Article 9 § 3 of the Convention on the Rights of the Child, the child had the right to maintain personal relations and direct contact with both parents on a regular basis, except when this was contrary to his or her best interests. Moreover, they emphasised the positive duties inherent in Article 8 of the Convention and that it was highly important to maintain contact between biological parents and the child during the latter’s placement in care, as the regime of contact ought to guard, strengthen and develop family ties.",
"115. With respect to adoption, the Czech Government stated that the crucial question was whether, in cases where the biological parents wished to participate in their child’s upbringing and/or to exercise their contact rights (if allowed), adoption and other restrictions or a ban on contact rights were in compliance with Article 8 of the Convention. It further stated in this regard, among other points, that the extent of the child’s relationship with the biological parent could be a crucial factor. This led to the question of allowing for sufficient contact rights and of preserving the bond with the biological family while the child was in foster care.",
"116. The Czech Government emphasised the United Nations General Assembly Resolution on “Guidelines for the Alternative Care of Children” and noted that, according to the Committee on the Rights of the Child, the State party should take measures, including adequate training of personnel, necessary to ensure that children belonging to an indigenous or national minority group who are placed in alternative care learn about, and maintain their connection to, their native culture.",
"117. Furthermore, they stated that, when deciding about out-of-home placement, or even adoption, the authorities must have due regard also to the wishes of the biological parents to have their children placed with foster or adoptive parents that will comply with their religious beliefs. When choosing a suitable adopter, the authorities should therefore take due account of the understanding by prospective adopters of developmental and behavioural issues, issues surrounding the cultural, spiritual or religious needs of the child, the importance of providing information to the child about his background, and issues of racism and its effects.",
"118. The Czech Government also pointed out that information about the child’s origin was critical to the ability of a child from a minority group or of indigenous origin to exercise the right to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language under Article 30 of the Convention on the Rights of the Child. In this context, the Committee on the Rights of the Child had recommended that States parties ensure the right of adopted children, as far as possible, to maintain one of their original first names.",
"(c) The Government of Turkey",
"119. The Government of Turkey maintained that the Court recognised that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny was called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure effective protection of the right of parents and children to respect for their family life.",
"120. Furthermore, the Government of Turkey submitted that, according to the Court’s case-law and international practices, removal and placement of children with long-term foster families and prospective adoptive parents should be used only in exceptional cases and as a last resort, after all other options are exhausted, as these measures are often irreversible, especially in respect of children aged 0-6. In the instant case, it was not clear whether there had been exceptional circumstances such as a history of violence, ill ‑ treatment or drug or alcohol addiction that would prevent the mother from providing parental care to her own child permanently and would have justified the authorities’ severe measures, which led to the severing of mother-child ties. It was not sufficiently proved that the child welfare services had exhausted other options prior to removing the applicant’s child and placing him with a prospective adoptive family. The Government of Turkey also drew the Court’s attention to the vulnerable condition of the applicant and her son and argued that by the very act of imposing a very restrictive contact regime, the authorities had failed in their positive duty to take measures to facilitate the applicant’s and her child’s continued enjoyment of a family life.",
"121. The Government of Turkey maintained that it was unclear whether the national authorities had conducted a thorough assessment when choosing the foster parents and exhausted all other available options before placing the child in foster care with foster parents of a different religion. They also stated that it was unknown which steps, if any, had been taken by the child welfare services with regard to the applicant’s concerns that the foster parents actively indoctrinated her child into their faith without any consideration for the fact that he was of the Muslim faith and that the applicant, as the child’s mother, wished to bring him up as a Muslim, following the cultural and religious identity of his roots.",
"122. Moreover, the Government of Turkey noted that, following his adoption, the child had been baptised and given a Christian name, and argued that the authorities’ decisions had resulted in the child’s religious conversion into the Christian faith, in violation of the applicant’s and her son’s right to freedom of religion under Article 9 of the Convention. They stated in this context that the fact that the child had been baptised and given a Christian name implicitly implied the argument that the child would not have been able to integrate into his adoptive family without surrendering the cultural and religious identity into which he had been born. Lastly, they stated that it would be beneficial in the instant case if the Court could examine, in conjunction with the other provisions, whether there had been a violation of the prohibition of discrimination set out in Article 14.",
"123. The Government of Turkey were of the opinion that the child’s religious, cultural, ethnic and linguistic background had not been taken into consideration in the decisions of the child welfare services and the Norwegian courts’ judgments concerning the placement of the applicant’s child. This constituted an interference with the applicant’s rights, not only under Article 8, but also under Article 9 of the Convention and Article 2 of Protocol No. 1, as well as under Article 14 of the Convention in conjunction with these provisions. The authorities’ conduct had violated the applicant’s right to raise and educate her child in conformity with her own religious beliefs and convictions.",
"(d) The AIRE Centre",
"124. The AIRE Centre focused on the United Nations Convention on the Rights of the Child. In that context, it drew the Court’s attention, among other points, to the fact that the rights set out in that Convention applied to all children under the age of 18, including teenage mothers. In the context of teenage mother asylum seekers, that Convention required a guardian to be appointed for the young mothers as well as for their babies, in order to ensure that all their needs, including their needs as mothers, were properly met. The AIRE Centre also emphasised that the principle of the paramountcy of the child’s best interests applied equally to the best interests of babies and to the best interests of their mothers if their mothers were also children.",
"125. The AIRE Centre also emphasised issues relating to the child’s participation in the decision-making process if it involves children who are able to form own opinions and stated, inter alia, that for domestic proceedings to comply with the procedural requirements of Article 8 of the Convention, the child had to have participated, either directly or indirectly, in the child protection or adoption proceedings. The same applied to proceedings before this Court, meaning that in order to meet the requirements of the United Nations Convention on the Rights of the Child, the child’s views had to be heard by the European Court of Human Rights.",
"126. In their submissions, the AIRE Centre also discussed different forms of alternative care and adoption with regard to the aspect of religious matters. Furthermore, it stated that it was essential to be aware that adoption was not permitted in Islam and that the Koran forbade it. Children who had lost the care of their birth parents were provided in Islam with new homes through the institution of Kafalah. Kafalah placed very exacting religious obligations on the kefils (the new parents) and was often carried out through judicial proceedings.",
"127. With regard to issues relating to the child and religion, the AIRE Centre’s submissions primarily dealt with the United Nation Convention on the Rights of the Child. It stated, among other things, that in most branches of the Christian religion a child did not “acquire” Christianity at birth, but only through baptism. In Islam and Judaism, a child born to a Muslim or a (qualifying) Jewish parent acquired that religion at birth, similarly to the situation in many States where citizenship was acquired at birth. In the Islamic world, apostasy was in many places regarded as a crime, but in all Islamic countries it was socially frowned on. Very serious and explicit consideration had therefore to be given to whether and why it was in the best interests of any Muslim child of Muslim heritage to be forcibly converted to Christianity. This was a quite distinct issue from whether it was appropriate to place a Muslim child within a Christian foster family, which could be an acceptable solution where forced conversion was not an issue and where there were no other suitable family members available to take on this role.",
"(e) X’s adoptive parents",
"128. X’s adoptive parents focused on the fact that the Court had established in its case-law that relationships amounting to “private or family life” within the meaning of Article 8 of the Convention were not exclusive to biological parental relationships. With regard to family life with foster parents, the Court’s judgment in the case of Moretti and Benedetti v. Italy (no. 16318/07, §§ 44-52, 27 April 2010) in particular laid down the relevant guidelines. The adoptive parents also emphasised that on the basis of the Court’s case-law due regard should be had to other close personal ties that had formed while the child had been in foster care, for instance with siblings.",
"129. Furthermore, the adoptive parents emphasised the paramountcy of the child’s best interests in cases such as the present one, and submitted that in the continuation of these two aspects of the Court’s case-law – the strength of the family ties between child and foster parents, and the paramountcy of the principle of the child’s best interests – the Grand Chamber should seek to combine them in the application of Article 8 in the present case. In this respect Moretti and Benedetti, cited above, was particularly relevant to the Court, as an example of the complex reality of situations where several interests – interests originating in family ties that were protected under the Convention – came into conflict with each other and pulled in different directions.",
"The Court’s assessmentScope of the case before the Grand Chamber",
"Scope of the case before the Grand Chamber",
"Scope of the case before the Grand Chamber",
"130. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility. This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see, for example, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). In the present case, the Grand Chamber notes that the Chamber declared admissible the complaint lodged by the applicant (see paragraph 3 above), which concerned the deprivation of parental responsibility and the authorisation for the adoption of her son, X, first decided by the County Social Welfare Board on 21 March 2014 and then upheld on appeal (see, inter alia, paragraphs 14-30, 34 and 36 of the Chamber’s judgment).",
"131. The Grand Chamber observes that X was taken into emergency foster care in 2010 (see paragraph 17 above) and into ordinary foster care following the County Social Welfare Board’s decision of 10 December 2010 (see paragraph 20 above). In the same decision the first applicant was granted contact rights amounting to four short contact sessions, under supervision, per year (see paragraph 22 above). She appealed against that decision, which was ultimately upheld by the District Court in its judgment of 6 September 2011, increasing her contact rights to one hour, six times per year (see paragraph 29 above). As the applicant did not avail herself of the possibility of lodging an appeal, the District Court’s judgment became final on the expiry of the time‑limit for doing so.",
"132. The above proceedings from 2010 to 2011 did not form part of the applicant’s application in so far as it was declared admissible by the Chamber and the Court does not have jurisdiction to review their compatibility with Article 8 of the Convention. The same applies to the decisions imposing limitations on the applicant’s right to contact with X, predating the adoption proceedings, which started in 2013 (see paragraph 32 above).",
"133. Nonetheless, in its review of the proceedings relating to the County Social Welfare Board’s decision of 21 March 2014 and the decisions taken on appeal against that decision, notably the District Court’s judgment of 21 November 2014, the High Court’s judgment of 27 May 2015 and the Supreme Court’s Appeals Leave Committee’s decision of 23 September 2015, the Court will have to put those proceedings and decisions in context, which inevitably means that it must to some degree have regard to the preceding proceedings and decisions (see, similarly, Strand Lobben and Others, cited above, § 148). Indeed, as recognised by the Norwegian Supreme Court (see paragraphs 62-66 above), it is relevant in a case such as the present one whether the competent domestic authorities have considered from the very outset all the relevant requirements of Article 8 of the Convention, as reflected in domestic law and other international instruments such as the Convention on the Rights of the Child (see M.L. v. Norway, no. 64639/16, § 98, 22 December 2020).",
"Legal characterisation of the applicant’s complaint",
"134. A principal reason for the applicant’s request that the case be referred to the Grand Chamber was the Chamber’s decision that all of her arguments fell to be examined under Article 8 of the Convention, rather than, in part under Article 9, as she had submitted (see paragraph 34 of the Chamber’s judgment).",
"135. The Court observes in that connection that the applicant’s complaints lodged with the Court under Articles 8 and 9 of the Convention concern the same measures, notably the withdrawal of her parental responsibility in respect of X and the authorisation for X’s adoption by his foster parents. This is also valid with regard to her additional arguments, made for the first time before the Grand Chamber, in relation to Article 2 of Protocol No. 1 to the Convention. It also observes that X himself is not an applicant before the Court.",
"136. In this connection, the Court reiterates that a complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).",
"137. While the type of measures under consideration in this case is one which, according to the Court’s case-law, is invariably considered under Article 8 of the Convention, the question arises as to whether and to what extent the applicant’s complaint attracts the application of Article 9 of the Convention and/or Article 2 of Protocol No. 1.",
"138. Turning to the latter provision first, the Court reiterates that the Convention institutions have on certain occasions been called upon to examine complaints formulated under this provision, in addition to the complaint under Article 8 of the Convention, in regard to the choice of foster home. It is noteworthy that in Olsson v. Sweden (no. 1), 24 March 1988, § 95, Series A no. 130, the former European Commission of Human Rights stated in paragraph 183 of its report adopted on 2 December 1986:",
"“A decision to take a child into care is of a different character from adoption or the removal of custody. A care order does not mean that the right to custody is removed from the parents. But it implies that the public authorities take over the responsibility for the actual care of the child for a period which is not normally fixed in advance. A care order is however of a temporary nature and the aim is that eventually the children should return to their parents. In the Commission’s opinion the right of the parents under Article 2 of Protocol No. 1 is not removed as a result of a care order. However, since such an order temporarily transfers certain parental rights to the public authorities it is inevitable that the contents of the parents’ rights in Article 2 of Protocol No. 1 must be reduced accordingly. On the other hand, the responsible authorities must, in the exercise of their rights under a care order, have due regard to the parents’ right under Article 2 of Protocol No. 1.”",
"139. The Court, finding the complaint unsubstantiated, agreed with the Commission in that no violation of Article 2 of Protocol No. 1 had been established (see Olsson v. Sweden (no. 1), cited above). The Commission similarly reached a negative conclusion in Tennenbaum v. Sweden (dec.) no. 16031/90, 3 May 1993), as it had many years earlier in regard to an adoption measure in X v. the United Kingdom (no. 7626/76, 11 July 1977). However, apparently because of the secondary importance of the matter and slender basis for the complaints, the Convention institutions have not elucidated the reach of this provision beyond affirming that the authorities must have due regard to the parents’ right under Article 2 of Protocol No. 1. It appears that most cases examined under this provision and the principles developed in the Court’s case-law concern the obligations of the State in relation to institutionalised education and teaching, as pointed out by the respondent State. The Court further observes that, whilst Article 2 of the Protocol is a lex specialis in relation to Article 9 of the Convention (see, for example, Folgerø and Others v. Norway [GC], no. 15472/02, § 54, ECHR 2007 ‑ III; and Lautsi and Others v. Italy [GC], no. 30814/06, § 59, ECHR 2011 (extracts)), the applicant relied only on the latter provision in her initial application to the Court as declared admissible by the Chamber. In these circumstances, the Grand Chamber will not review the matter with reference to Article 2 of Protocol No. 1.",
"140. Turning then to Article 9, which the applicant did invoke in her original application, the Court recognises that her views attained the “level of cogency, seriousness, cohesion and importance” so as to fall within the scope of the guarantees embodied in this provision (see, among other authorities, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 68, 26 April 2016). The Court also considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in ... teaching, practice and observance” (emphasis added here). It is clear that when the child lives with his or her biological parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights. To some degree he or she may also be able to continue doing so where the child has been compulsorily taken into public care, for example through the manner of assuming parental responsibilities or contact rights aimed at facilitating reunion. The compulsory taking into care of a child inevitably entails limitations on the freedom of the biological parent to manifest his or her religious or other philosophical convictions in his or her own upbringing of the child. However, for the reasons stated below the Court does not find it necessary in the instant case to determine the scope of Article 9 and its applicability to the matters complained of.",
"141. In the Court’s view, the applicant’s complaint relating to the adverse effect of the choice of foster home in regard to her wish that X be brought up in line with her Muslim faith may be examined as an integral part of her complaint concerning her right to respect for her family life as guaranteed by Article 8 of the Convention, interpreted and applied in the light of Article 9, rather than as a separate issue of alleged failures to comply with the rights protected by the latter provision.",
"142. Against this background, the Court considers it appropriate to centre its examination of the present case on the compatibility of the impugned measures with the applicant’s right to respect for family life under Article 8, which has however to be interpreted and applied in the light of Article 9 of the Convention. This is an approach that it has followed in a number of cases in which it has found the complaint to be most appropriately characterised with reference to one Article, while acknowledging that the subject matter also touches upon interests protected by other Articles of the Convention and Protocols (see, for example, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23; and Folgerø and Others, cited above, § 100, where the Court held that the two sentences of Article 2 of Protocol No. 1 must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention; see also Lautsi and Others, cited above) and the approach adopted in a number of cases to interpret Article 11 in the light of Articles 9 and/or 10 (see, for example, Young, James and Webster v. the United Kingdom, 13 August 1981, § 57, Series A no. 44; Socialist Party and Others v. Turkey, 25 May 1998, § 41, Reports of Judgments and Decisions 1998-III; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 102, 15 November 2018) or the other way round (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 53 et seq ., ECHR 2011); or Article 9 in the light of Article 11 (see İzzettin Doğan and Others, cited above, § 93).",
"Compliance with Article 8",
"143. It is not disputed between the parties, and the Court finds it unequivocally established, that the measures decided in the proceedings complained of, namely the withdrawal of the applicant’s parental responsibility in respect of X and the authorisation for X’s adoption, entailed an interference with the applicant’s right to respect for her family life, as guaranteed by paragraph 1 of Article 8 of the Convention. Moreover, the Court sees no reason to question that the measures were in accordance with the law, namely the Child Welfare Act (see paragraph 61 above), and pursued legitimate aims under paragraph 2 of Article 8, namely the protection of X’s “health and morals” and his “rights”. It remains to be considered whether the disputed measures were “necessary in a democratic society” for the pursuit of these legitimate aims, including whether the domestic authorities had due regard to the applicant’s interests protected by the Article 9 freedom.",
"144. This approach is not only consistent with promoting internal consistence and harmony (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X) with that referred to in paragraph 142 above concerning Article 8 in relation to Article 2 of Protocol No. 1. It is also consonant with the standard expressed in various forms in the domestic laws of the great majority of Convention States and reflected in the UN Convention on the Rights of the Child, notably its Article 20(3), whereby due regard shall be paid, inter alia, to the child’s religious, ethnic and cultural background (see paragraphs 73, 81 and 82 above).",
"(a) General principles",
"145. The general principles relevant to child welfare measures were set out in the Grand Chamber’s judgment in Strand Lobben and Others, cited above, §§ 202-213 (see also, inter alia, K.O. and V.M. v. Norway, no. 64808/16, §§ 59-60, 19 November 2019; A.S. v. Norway, no. 60371/15, §§ 59-61, 17 December 2019; Cînța v. Romania, no. 3891/19, § 26, 18 February 2020; Y.I. v. Russia, no. 68868/14, §§ 75-78, 25 February 2020; Hernehult v. Norway, no. 14652/16, §§ 61-63, 10 March 2020; Pedersen and Others v. Norway, no. 39710/15, §§ 60-62, 10 March 2020; and M.L. v. Norway, cited above, §§ 77-81). While bearing in mind the scope of the case as delimited in paragraphs 130-133 above, and also that the crux of the matter concerns the deprivation of parental responsibility and authorisation to adoption described in paragraphs 32-58 above, in assessing whether these measures were “necessary in a democratic society” the Court will have regard to the following principles:",
"“203. In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli, cited above, § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (ibid., § 181).",
"204. In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations (see Jovanovic, cited above, § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000‑IX).",
"205. At the same time, it should be noted that regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible (see K. and T. v. Finland, cited above, § 178).",
"206. In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see, for instance, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003‑VIII (extracts), and the references therein).",
"207. Generally, the best interests of the child dictate, on the one hand, that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII; and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). An important international consensus exists to the effect that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child (see Article 9 § 1 of the United Nations Convention on the Rights of the Child, recited in paragraph 134 above). In addition, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards for the protection of the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87, quoted at paragraph 136 above).",
"208. Another guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see, for instance, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). The above-mentioned positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see, for example, K. and T. v. Finland, cited above, § 178). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see, inter alia, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Thus, where the authorities are responsible for a situation of family breakdown because they have failed in their above-mentioned obligation, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child (see Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). Furthermore, the ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other (see Scozzari and Giunta, cited above, § 174; and Olsson (no. 1), cited above, § 81). However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited (see K. and T. v. Finland, cited above, § 155).",
"209. As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants’ legal ties with the child are definitively severed, it is to be reiterated that “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests” (see, for example, Johansen, cited above, § 78, and Aune, cited above, § 66). It is in the very nature of adoption that no real prospects for rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family (see R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011).",
"210. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154; and Johansen, cited above, § 64).",
"211. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see, for example, K. and T. v. Finland, cited above, § 155; and Johansen, cited above, § 64). However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see, for example, Olsson (no. 1), cited above, §§ 72-74; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013, § 86; and Kutzner v. Germany, no. 46544/99, § 75, ECHR 2002‑I). A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland, cited above, ibid., and Johansen, cited above, ibid.).",
"212. In cases relating to public-care measures, the Court will further have regard to the authorities’ decision-making process, to determine whether it has been conducted such as to secure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them (see, for instance, W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121, and Elsholz, cited above, § 52). What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see, for example, W. v. the United Kingdom, cited above, § 64; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001‑V (extracts); Neulinger and Shuruk, cited above, § 139; and Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012). ...",
"213. Whether the decision-making process sufficiently protected a parent’s interests depends on the particular circumstances of each case (see, for example, Sommerfeld, cited above, § 68). ...”",
"(b) Application of those principles to the present case",
"146. Turning to the concrete examination of the necessity of the impugned measures, the Court observes that the High Court decided that X’s foster care should be replaced with adoption after having held a hearing over two days, which the applicant attended together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. The High Court’s bench comprised three professional judges, one psychologist and one lay person (see paragraph 43 above). Similarly, extensive proceedings were conducted by the County Social Welfare Board and the District Court (see paragraphs 34 and 40 above).",
"147. The Court further notes that, in its decision to replace X’s foster care with adoption, contrary to his biological mother’s wishes, the High Court essentially relied on the following reasons: X had lived in his foster home for four and a half years; he had reacted negatively to contact with the applicant; he had become attached to his foster parents; and he was a vulnerable child in need of stability (see, in particular, paragraphs 44-50 above). Furthermore, adoption – in contrast to continued foster care – would rule out the possibility for the applicant to request X’s return to her in the future and also remove the potential for conflicts between her and the foster parents relating to differences in their cultural and religious views (see, in particular, paragraph 56 above).",
"148. The Court observes moreover that the High Court accepted the applicant’s view at the relevant time that continued foster care would be in X’s best interests. Thus, it appears to the Court that at the time of the impugned proceedings the applicant’s interest in avoiding adoption primarily stemmed from the final and definitive nature of the measure. Since the foster parents did not wish a so-called “open adoption”, an arrangement which included post-adoption contact visits (see paragraph 51 above), adoption would have as a consequence the loss, de facto and de jure, for the applicant of any right to future contact with her child. Moreover, the applicant’s interests in X’s foster care being continued, rather than being transformed into adoption, was due to the expressed likelihood that the latter measure would lead to her son’s religious conversion, contrary to her own wishes.",
"149. The Court reiterates that an adoption will as a rule entail the severance of family ties to a degree that, according to its case-law, is permissible only in very exceptional circumstances and could only be justified if motivated by an overriding requirement pertaining to the child’s best interests (see Strand Lobben and Others, §§ 206 and 207, quoted at paragraph 145 above). That is so since it is in the very nature of adoption that no real prospects of rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family (ibid., § 209). Given the nature of the issues and the seriousness of the interests at stake, a stricter scrutiny is necessarily called for in respect of such decisions (ibid., §§ 209 and 211).",
"150. Against this background, it should be emphasised that, regardless of the applicant’s acceptance during the adoption proceedings that X’s foster care could continue, and irrespective of whether the domestic authorities were justified in considering long-term foster care for X were he not to be adopted, she and her son retained a right to respect for family life under Article 8 of the Convention. The fact that the applicant did not apply for family reunification did not dispense the authorities from their general obligation to consider the best interests of X in maintaining family ties with the applicant, to preserve their personal relations and, by implication, to provide for a possibility for them to have contact with one another in so far as reasonably feasible and compatible with X’s best interests (see Strand Lobben and Others, § 207, quoted at paragraph 145 above). The foregoing is a central consideration in the Court’s examination of whether the domestic authorities provided relevant and sufficient reasons to show that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant and were motivated by an overriding requirement pertaining to the child’s best interests and also whether, in so deciding, they struck a fair balance between the competing interests at stake.",
"151. Moreover, the Court is fully conscious of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibility and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and those of his biological family, but focused on the child’s interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child’s retaining contact with his biological family (see, similarly, Strand Lobben and Others, cited above, § 220). In this context, the Court is not persuaded that the competent domestic authorities duly considered the potential significance of the fact that the applicant had not applied to have the care order lifted, but merely opposed adoption on the grounds that she wished to maintain a right of contact with her child (see paragraph 43 above). In this regard, given that the High Court’s decision was largely premised on an assessment of X’s attachment to his foster home, the factual basis on which it relied in making that assessment appears to disclose shortcomings in the decision-making process.",
"152. In this respect the Court observes that the issue of contact between the applicant and X, and especially X’s reactions to the contact sessions that had been conducted since his placement in care, played a central role in the question before the High Court. In that connection, the Court takes particular note that the decision under consideration was taken in a context where there had in fact been very little contact between the applicant and her son from the outset following his placement. On 10 December 2010, when the care order was issued, the County Social Welfare Board decided to grant the applicant contact rights for two hours, four times per year, and the District Court in its judgment of 6 September 2011 put in place a regime with contact rights for one hour, six times per year (see paragraphs 22 and 29 above). Between 2013 and the High Court’s decision, X had apparently met the applicant only twice (see paragraph 49 above). The Court considers that that sparse contact between the applicant and X after the care order was issued had provided limited evidence from which to draw clear conclusions about whether it would be in X’s best interests, as these appeared in 2015 when the impugned decision was taken, that the applicant be given no right to future contact with him (see, mutatis mutandis, Strand Lobben and Others, cited above, § 221).",
"153. Moreover, the Court notes that the reasons set out in the High Court’s decision focused essentially on the potential effects of removing X from his foster parents and returning him to the applicant, rather than on the grounds for terminating all contact between X and the applicant. In this respect, the High Court appears to have given more importance to the foster parents’ opposition to “open adoption” than to the applicant’s interest in the possibility of a continued family life with her child through contact with him.",
"154. Furthermore, the Court has reservations regarding the emphasis placed by the High Court on the need to pre-empt the applicant from resorting at some future point to legal remedies to contest the care order or the arrangements for visiting rights. Although there might indeed be instances when, owing to the particular circumstances of a case, repeated legal proceedings may harm the child concerned and must therefore be taken into account, a biological parent’s exercise of judicial remedies cannot automatically count as a factor in favour of adoption (see Strand Lobben and Others, cited above, §§ 212 and 223). The Court notes in this regard that biological parents’ procedural rights, including their right to have access to proceedings in order to have a care order lifted or restrictions on contact with their child relaxed, form an integral part of their right to respect for their family life afforded by Article 8 of the Convention (see, for example, M.L. v. Norway, cited above, § 95).",
"155. As to the particular aspect of the case which turns upon the applicant’s Muslim faith and her wish that X be brought up in accordance with her religious beliefs and background, it should be noted that the High Court acknowledged that the interest in ensuring X’s attachment to the foster home environment had to be balanced against other weighty considerations. The latter related not only to the fact, referred to above, that the adoptive parents had been unwilling to apply for an open adoption, but also to aspects relating to ethnicity, culture and religion, and religious conversion, particularly in the light of the differences between the applicant’s and the prospective adoptive parents’ religious faiths (see paragraph 51 above).",
"156. In this connection, the High Court took evidence from two expert witnesses who provided information about obstacles to adoption in Islam; one of these experts had emphasised that each case had to be assessed on the basis of the child’s needs (see paragraph 52 above).",
"157. Furthermore, on examining sources of international law, the High Court did not find that it could be inferred from these that the adoption of a child of a Muslim background in Norway was prohibited. The Court takes particular note of the High Court’s reliance on Article 20(3) of the United Nations Convention on the Rights of the Child, affirming that when possible solutions, including adoption, were assessed, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (see paragraph 53 above), in other words on a standard that in substance corresponds to and is in compliance with the requirements of the Convention (see paragraphs 143 ‑ 144 above).",
"158. The High Court also examined how the applicant would perceive adoption in view of her religious values (see paragraph 55 above). It also commented on the choice of foster home in the case, and presumed in that context that there had been no foster parents available who had a cultural background more similar to that of the applicant. It noted that it was known that there was a serious shortage of foster parents from minority backgrounds and that, regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in X’s best interests at the time of its judgment (see paragraph 54 above). Furthermore, the High Court looked into what could be considered as X’s own values at the time of the possible adoption, in the light of his upbringing by his foster parents (see paragraph 55 above). It further noted that the religious differences in question could also create difficulties with regard to continuing the foster home arrangement, before it effectively concluded that decisive importance ought to be attached to how adoption would create clarity, strengthen the development of X’s identity, and make him an equal member of the family with which he lived (see paragraph 56 above).",
"159. The Court restates that its jurisdiction in the present instance is limited to the proceedings in 2013-2015 (see paragraphs 130-133 above). It follows that the decision in which X’s foster home was chosen in 2010 falls outside its jurisdiction. However, as it transpires from the High Court’s reasoning, referred to in the preceding paragraph, the choice of foster home made in 2010 was a relevant consideration for its 2015 assessment of the issue of deprivation of parental responsibility and authorisation for adoption, in that the initial placement had a significant bearing on what was considered to be in X’s best interests at the time of its judgment.",
"160. In the proceedings before the Court, the respondent Government adduced materials showing that the domestic authorities had at the time made efforts to find a foster home which matched the applicant’s interests (see paragraphs 16 to 18 above). After the care order had been issued, the applicant was informed that it had not been possible to find a Somali home (see paragraph 27 above), and in the course of her appeal against the care order, she dropped the alternative claim for X to be placed in a Somali or Muslim foster home (see paragraph 28 above).",
"161. The Court notes that the applicant’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponded to her cultural and religious background. It refers to the assessments of the domestic courts of the various interests that have to be taken into account throughout the whole process in cases of this nature where the child’s best interest must remain paramount (see, in particular, paragraphs 23-26, 36-37 and 51-56 above) and to the relatively broad agreement in international law that domestic authorities in circumstances such as those in the present case are bound by an obligation of means, not one of result (see paragraphs 80 -82 above). Nor can the Court question the fact that, on the basis of the information available, the actions of the authorities included efforts, which ultimately proved unsuccessful, to find a foster home for X at the outset that was more suitable from this perspective (see paragraph 17 above). However, the Grand Chamber agrees with the Chamber (see paragraph 64 of the Chamber judgment) that the arrangements made thereafter as to the applicant’s ability to have regular contact with her child (see paragraph 152 above), culminating in the decision to allow for X’s adoption (see paragraphs 44-56 above) failed to take due account of the applicant’s interest in allowing X to retain at least some ties to his cultural and religious origins.",
"162. Having regard to all of the above considerations, the Court is not satisfied that in depriving the applicant of her parental responsibility in respect of X and authorising his adoption by the foster parents, the domestic authorities attached sufficient weight to the applicant’s right to respect for family life, in particular to the mother and child’s mutual interest in maintaining their family ties and personal relations and hence the possibility for them to maintain contact. The reasons advanced in support of the decision were not sufficient to demonstrate that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant, or that the decision to that effect was motivated by an overriding requirement pertaining to X’s best interests. Emphasising the gravity of the interference and the seriousness of the interests at stake, the Court also considers that the decision-making process leading to the applicant’s ties with X being definitively cut off, was not conducted in such a way as to ensure that all of her views and interests were duly taken into account. There has accordingly been a violation of Article 8.",
"APPLICATION OF ARTICLEs 41 and 46 OF THE CONVENTIONArticle 41 of the Convention",
"Article 41 of the Convention",
"Article 41 of the Convention",
"163. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"164. Before the Grand Chamber, the applicant claimed compensation in respect of non-pecuniary damage but did not specify any amount.",
"165. The Government made no specific remarks to the claim.",
"166. The Court observes that the applicant did not make any claims for just satisfaction in her reply of 23 March 2017 to the Court’s letter of 9 February 2017, or in any other manner within the deadline set by the Court in that letter. Nor did she make any such claim at any other point during the ordinary proceedings before the Chamber. The Court also observes that in the applicant’s request of 17 March 2020 for revision of the Chamber’s judgment in order to include an award in respect of just satisfaction, she stated that her failure to file a claim in respect of just satisfaction had been owing only to an oversight.",
"167. Under Rule 60 § 2 of the Rules of Court an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits. If the applicant fails to comply with these requirements, the Court may reject the claim in whole or in part (Rule 60 § 3). In its above letter to the applicant dated 9 February 2017, the Court drew her attention to these matters.",
"168. Moreover, the Court’s practice in cases referred under Article 43 of the Convention has been generally that the just satisfaction claim remains the same as that originally submitted before the Chamber, an applicant only being allowed at this stage to submit claims for costs and expenses incurred in relation to the proceedings before the Grand Chamber (see Nagmetov v. Russia [GC], no. 35589/08, § 63, 30 March 2017).",
"169. Indeed, in Nagmetov, cited above, the Court adopted an approach to be applied in exceptional situations in order to decide on whether the Court should make an award of just satisfaction. It held that it was first necessary to ascertain that a number of prerequisites had been met, before weighing the compelling considerations in favour of making an award, in the absence of a properly made “claim” for just satisfaction.",
"170. In the instant case, however, the case file discloses no explicit wish from the applicant to file a claim for just satisfaction in the ordinary proceedings before the Chamber (contrast Nagmetov, cited above, § 85). Having regard to Rule 60, it therefore makes no award in respect of non-pecuniary damage under Article 41 of the Convention.",
"Costs and expenses",
"171. The applicant did claim a total of 383,906.25 Norwegian kroner (NOK), approximately 37,650 euros (EUR), for the costs and expenses incurred before the Grand Chamber.",
"172. The costs and expenses related to her counsel having worked for 30 hours on the request for referral to the Grand Chamber, drafting the applicant’s memorial before the Grand Chamber, and researching the case documents in that connection. Furthermore, the applicant’s counsel had worked for 35 hours on reviewing the Government’s memorial and preparing the draft for her oral pleadings before the Grand Chamber. Requesting NOK 2,500 per hour, compensation for counsel’s work thus amounted to NOK 162,500, approximately EUR 16,000.",
"173. Furthermore, the applicant’s costs and expenses included her adviser Mr Henriksen having worked 10 hours with research into aspects of facts, Norwegian law and the Court’s case-law, as well as doctrine, and contributing to drafting the applicant’s memorial. He had also worked for 15 hours on reviewing the Government’s memorial and reviewing and contributing to counsel’s draft for the oral pleading, and he had attended the Grand Chamber’s hearing via videoconferencing technology. Requesting NOK 2,500 per hour, compensation for Mr Henriksen’s work thus amounted to NOK 62,500, approximately EUR 6,100.",
"174. In addition, the applicant had engaged as advisers Mr Andenæs and Mr Bjørge, who had each spent 10 hours researching the Court’s case-law and the doctrine, and on reviewing and contributing to the draft of the applicant’s memorial before the Grand Chamber. Moreover, Mr Andenæs and Mr Bjørge had each spent 10 hours reviewing the Government’s memorial, reviewing and contributing to counsel’s draft for her oral pleadings, and attending the Court’s hearing via videoconferencing technology. Requesting NOK 2,500 per hour, compensation to Mr Andenæs and Mr Bjørge thus amounted to NOK 100,000, approximately EUR 9,800.",
"175. Moreover, the applicant had incurred translation expenses of NOK 27,281.25 when she filed her memorial before the Grand Chamber, and an additional NOK 10,875 before the hearing, amounting to NOK 38,156.25, approximately EUR 3,700. She had also engaged a sound technician to be present for the hearing before the Grand Chamber and the corresponding testing sessions, which amounted to NOK 8,750, approximately EUR 850. She also sought reimbursement of the expenses incurred by renting the premises from where the applicant and her counsel had participated in the Court’s hearing by way of videoconferencing technology, amounting to NOK 12,000, approximately EUR 1,200. Expenses for the applicant’s own travel and accommodation, as well as the premises for the hearing, were covered by the Council of Europe’s legal aid scheme.",
"176. The Government did not make any submissions in respect of the applicant’s claim for costs and expenses.",
"177. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 30,000 covering costs for the proceedings before the Grand Chamber.",
"Default interest",
"178. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.",
"Article 46 of the Convention",
"179. In her pleadings before the Grand Chamber, the applicant argued, for the first time in the course of the proceedings before the Court, that the Court should indicate individual measures under Article 46 of the Convention. Without clearly specifying what measures she envisioned, she referred in particular to the possibility of ordering a reopening of the adoption proceedings.",
"180. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see, among other authorities, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 311, 1 December 2020).",
"181. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions and spirit of the Court’s judgment. However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (ibid., § 312).",
"182. As to the applicant’s request in the instant case, the Court firstly notes that in a case of this type, in general the best interests of the child must be a paramount consideration also when it is to consider indication of any individual measures to be taken under Article 46 of the Convention (see, mutatis mutandis, Haddad v. Spain, no. 16572/17, § 79, 18 June 2019; and Omorefe v. Spain, no. 69339/16, § 70, 23 June 2020).",
"183. The Court notes that X and his adoptive parents currently enjoy family life together, and that individual measures could ultimately entail an interference with their respect for that family life. It follows that facts and circumstances relevant to Article 46 of the Convention could raise new issues which are not addressed by the present judgment on the merits (see, mutatis mutandis, Johansen v. Norway (dec.), no. 12750/02, 10 October 2002).",
"184. Furthermore, although the applicant did not request any measure of a more general character, the Court observes that, in so far as there might be a certain systemic issue in question, the respondent Government have shown that they are making efforts to implement the judgments rendered by the Court concerning various types of child welfare measures in which violations of Article 8 have been found (see, for example, paragraphs 62-66 above). It also observes that the respondent State is in the process of enacting new legislation (see paragraph 67 above).",
"185. For the above reasons, the Court does not find that any measures are to be indicated under Article 46 of the Convention."
] |
87 | T.C. v. Italy | 19 May 2022 | This case concerned a dispute between the applicant and the mother of his daughter from a previous relationship over their child’s religious upbringing. The applicant had become a Jehovah’s Witness after the split in the relationship. Following proceedings brought by the mother in the courts, the applicant was ordered to refrain from actively involving his daughter in his religion. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8 (right to respect for private and family life), read in the light of Article 9 (freedom of religion) of the Convention. It found that there had been no difference in treatment between the applicant and the mother based on religion in the decisions leading to that court order. The Court noted, in particular, that the decisions had solely aimed at resolving the conflict, focussing above all on the child’s interest in growing up in an open and peaceful environment, while reconciling as far as possible the rights and convictions of both parents. | Parental Rights | Religious upbringing of children | [
"2. The applicant was born in 1973 and lives in F. He was represented by Mr L. Marsella, a lawyer practising in Rome, and Mr O. Nardi, a lawyer practising in Castelfidardo.",
"3. The Government were represented by their Agent, Mr L. D’Ascia, State Attorney.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. In 2004 the applicant started a relationship with S.G. A child, E., was born from that relationship on 15 September 2006. The applicant and S.G. cohabitated out of wedlock.",
"6. The applicant and S.G. broke up in 2008.",
"7. In 2009, the applicant started to attend meetings of the Jehovah’s Witnesses at the F. Kingdom Hall. In July 2011, he was baptised and became a member of that religion. At that time, the applicant used to bring E. with him to the services, two or three times per month.",
"8. In 2012 the applicant married E.B., who was also a Jehovah’s Witness and the mother of a child, S. A child was born of their marriage.",
"9. In September 2013 S.G. commenced non contentious proceedings (see § 20 below) before the Livorno District Court, following disagreements between her and the applicant regarding E.’s custody and visiting arrangements. S.G. argued that the applicant, without S.G.’s agreement, took E. to Jehovah’s Witness religious services, prevented the daughter from attending ballet classes and took her along to distribute religious magazines in the street.",
"The applicant emphasised that “E. did not grow up in a Roman Catholic environment, she did not receive any Catholic education, nor did she receive any kind of example or teaching from her mother, who has herself never been a practising Catholic”. S.G. confirmed that their approach had been confined to allowing the girl to attend a private Roman Catholic kindergarten, attend other children’s birthday parties and Carnival parties and ballet school, as well as attending catechism classes with a view to any future first communion.",
"10. On 3 February 2014 E. was heard by the District Court. Before the court, she voiced discomfort about her father bringing her to the Kingdom Hall on Saturdays and expressed a wish to spend more time playing with him. At the same time, she affirmed that she was perfectly aware of the fact that S.G. did not agree with the applicant taking her to the Kingdom Hall, and that she felt irritated and disturbed by her mother’s comments on the applicant’s religious activities. She also said that that she has been to Mass twice (once for Christmas and once to check the dates for starting catechism classes).",
"11. On 11 March 2014, the Livorno District Court settled all matters pending between the applicant and S.G. apart from the religion issue. In particular, the applicant and S.G. were granted joint custody of E., and they agreed that the latter should reside at S.G.’s home and that the applicant would spend at least 12 days per month with the daughter. The trial court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view.",
"12. At a hearing of 27 May 2014, the applicant finally agreed that as of 7 June 2014 the girl could participate in the ballet show.",
"13. On 22 July 2014 the applicant also agreed that E. could in future take the “sacraments” (first communion) in the Roman Catholic Church and requested that she also attend the Kingdom Hall. S.G. requested that the latter be ruled out. In view of the social services’ inertia, the Livorno District Court appointed an expert, P.C., to evaluate the influence of E.’s parents’ religious activities on her behaviour.",
"14. P.C. submitted her technical expert report on 30 December 2014. She concluded that it was not detrimental to E. to know that the parents had different religious beliefs. However, P.C. pointed out that the means which the applicant had been employing, such as concealing from S.G., and asking E. also to conceal, her attendance at the meetings in the Kingdom Hall, were harmful. P.C. added that forcing E. to actively participate in specific religious activities and to change her habits, without an agreement with S.G., was detrimental.",
"15. P.C. concluded that it would have been appropriate for both parents to refrain from actively involving E. in religious activities and to respect E.’s choices not to be actively involved in such activities. However, given the social context in which the child was being raised (her school activities and her participation in birthday or Carnival parties) it would have been prejudicial to her if she had not been allowed to take part in Catholic-oriented activities. P.C. referred to the fact that E. had been baptised in the Roman Catholic Church and that all her friends belonged to that religion.",
"16. On 20 January 2015, following the expert’s conclusions, the Livorno District Court issued a decision ordering the applicant to refrain from involving his daughter E. in his religion (“ inibisce allo stato al ricorrente il coinvolgimento della figlia nella propria scelta religiosa” ). The District Court stated that it would not have been in the child’s interests to be involved in a religion other than Roman Catholicism (she was used to the Catholic Church by reason of the familial and social context in which she had been raised and was living), and that E.’s situation was distressing because of her attendance at the Kingdom Hall, as shown by her personal statements. The District Court stated in the reasoning of the above order what follows:",
"“ the court-appointed expert’s report and the examination of the child lead this court to consider that the child’s interests take precedence over the practice of a religion differing from Catholicism, in which both parents had brought her up since her birth ... (the applicant having started attending the Kingdom Hall after his separation);",
"considering that, indeed, the child’s young age (eight years old), lacking mature discernment, prevents her from autonomously choosing a religion, and that, therefore, a religion that differs from the one adopted by the family and the social environment in which she is growing up would appear detrimental to her, by virtue of the principle of continuity governing the child’s religious education, in order to shield her from disturbance and confusion at a time when she is seeking and developing her own identity (see, in this regard, Court of Cassation rulings nos. 24683/13 and 9546/12);",
"considering that in the present case a distressing situation emerged caused by the child’s father’s religion and by her attendance at the Kingdom Hall, the child having been heard by both the court and the afore-mentioned court-appointed expert, whose report highlighted that practising two different religions may cause confusion and tension for the child in the family context in which she lives;",
"considering that, as concerns the Catholic religion practised by the child, there is no dispute between the parties, in the light of the declarations made by Mr T.C. at the hearing dated 22 July 2014”.",
"17. On 17 July 2015 the applicant appealed against that judgment. On 23 February 2016 the Florence Court of Appeal dismissed the applicant’s appeal. Nevertheless, it clarified the operative part of the first-instance judgment and interpreted it as meaning that the applicant must refrain from actively involving E. in his religious activities but not from communicating his beliefs to her.",
"18. The applicant appealed to the Court of Cassation on 4 May 2016. On 29 May 2017 he further filed a motion with the latter requesting that his appeal be decided on an expedited basis in view of the detrimental effects which the lower courts’ judgments had had on his relationship with his daughter.",
"19. The Court of Cassation ultimately dismissed the applicant’s claims on 24 May 2018."
] | [
"RELEVANT LEGAL FRAMEWORK",
"Domestic law and practice",
"The Italian Constitution",
"20. The relevant provisions of the Italian Constitution read as follows:",
"Article 3",
"“All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. ...”",
"Article 19",
"“Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality.”",
"Article 30",
"“It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock. ...”",
"The Italian Civil Code",
"21. The Italian Civil Code (CC), in its relevant parts, reads as follows:",
"Article 316",
"“Both parents have parental responsibility that is exercised by mutual agreement, taking into account the abilities, natural inclinations and aspirations of the child. ...",
"...",
"In the event of conflict on matters of particular importance each of the parents can turn to the judge without any formality, indicating the measures he considers most appropriate.",
"The judge, having heard the parents and arranged to hear the minor ... suggests the decisions that he considers most useful in the interests of the child and the family unit ...”",
"Article 337- bis",
"“In the event of separation ... and in proceedings concerning children born out of wedlock, the provisions of this chapter apply.”",
"Article 337- ter",
"“The minor child has the right to maintain a balanced and continuous relationship with both parents, to receive care, education, instruction and moral assistance from both ...",
"To carry out the purpose indicated in the first paragraph, in the proceedings referred to in Article 337 bis, the judge adopts the provisions relating to the children with exclusive reference to their moral and material interest.",
"...",
"He adopts any other provision relating to the offspring ...",
"Parental responsibility is exercised by both parents. The decisions of greatest interest to the children regarding education, upbringing, health and the choice of the child’s habitual place of residence are made by mutual agreement, taking into account the abilities, natural inclination and aspirations of the children. In case of disagreement the decision is left to the judge. Within the limits of decisions on matters of ordinary administration, the judge may decide that the parents exercise parental responsibility separately ...”",
"Decisions made in accordance with Articles 330, 333 and 337 of the Civil Code are rendered in non-contentious proceedings ( volontaria giurisdizione ). They are not final and can therefore be revoked at any time. Either party concerned may lodge an application ( reclamo ) with the Court of Appeal for a review of the decision.",
"RELEVANT INTERNATIONAL INSTRUMENTS",
"United Nations",
"22. The relevant provision of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, reads as follows:",
"Article 14",
"“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.",
"2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.",
"3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”",
"23. The relevant parts of the interim report of the Special Rapporteur on freedom of religion or belief on the elimination of all forms of religious intolerance, presented at the 70 th Session of the General Assembly (UN Doc. A/70/286, 5 August 2015), read as follows:",
"“...",
"22. Given the child’s dependency on an enabling family environment, albeit with recognition of the variety of family forms, parents have the primary responsibility for supporting the child in the exercise of his or her human rights. According to article 5 of the Convention on the Rights of the Child, they should provide “appropriate guidance and direction” to the child in that regard. That specific responsibility entrusted to the parents also constitutes a parental right that the State must respect and protect. Article 14, paragraph 2, of the Convention further specifies that general understanding by enshrining due respect for the rights and duties of the parents “to provide direction to the child in the exercise of his or her right” to freedom of religion or belief.",
"...",
"31. ... [T]here can be no doubt that the erosion of parental rights by undue State interference is a serious problem and a source of grave violations of freedom of religion or belief. That problem requires systematic attention. ...",
"...",
"36. Freedom of religion ... does not presuppose a right of the child to grow up in a religiously “neutral” family environment, let alone a right possibly enforced by the State against parents. The principle of “neutrality” can meaningfully be invoked only against States in order to remind them of their obligation to exercise fairness, impartiality and inclusivity and in this specific sense “neutrality”, when dealing with diversity of religion or belief. By contrast, parents cannot be obliged by the State to remain religiously “neutral” when raising their children.",
"...",
"64. In cases in which the two parents follow different religions or beliefs, such a difference cannot in itself serve as an argument for treating parents differently ... Discrimination against parents on the grounds of their religion or belief may simultaneously amount to a serious violation of the rights of t",
"he child in their care. ...",
"...",
"76. The rights of children and parental rights in the area of freedom of religion or belief ... should generally be interpreted as being positively interrelated. ... While State interventions may sometimes be necessary, ... unjustified State interference with parental rights in the area of freedom of religion or belief will in many cases simultaneously amount to violations of the rights of the child.",
"...”",
"COMPLAINTS",
"24. The applicant complains of a violation of his right to respect for his family life and his freedom of religion, alleging a disproportionate and unnecessary difference in treatment between him and his previous partner, based on his religious beliefs. Finally, he complains that the overall length of the proceedings adversely affected his relationship with his daughter. he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14 and Article 5 of Protocol No. 7 to the Convention.",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION in ConjuNction with article 8 of the coNvention read in the light of article 9",
"25. The applicant complained that the domestic courts’ decisions ordering him to refrain from actively involving his daughter in his religion had disproportionately interfered with his right to family life and his freedom of religion. He further claimed that such treatment had been based on his adherence to the Jehovah’s Witnesses religion and, as such, it had amounted to a differential treatment in respect of the enjoyment of his Convention rights. In this regard, he claimed a violation of Articles 8 and 9 of the Convention, alone and in conjunction with Article 14. He further submitted that the domestic courts’ decisions had violated the equality of rights between him and S.G. in their relations with their child, as protected by Article 5 of Protocol No. 7 to the Convention.",
"26. Article 8 reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"27. Article 9 reads as follows:",
"“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.",
"2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”",
"28. Article 14 reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"29. Article 5 of Protocol No. 7 to the Convention reads as follows:",
"“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”",
"30. The Court, having regard to the particular circumstances of the case and being master of the characterisation to be given in law to the facts of the case ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), considers that the applicant’s complaints fall to be examined under Article 14 in conjunction with Article 8 of the Convention which must however, be interpreted and applied in the light of Article 9 of the Convention (see Abdi Ibrahim v. Norway [GC], no. 15379/16, §§ 141-142, 10 December 2021 and, mutatis mutandis, Vojnity v. Hungary, no. 29617/07, 12 February 2013). The Court considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in teaching, practice and observance”. It is clear that when the child lives with his or her parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights ( Abdi Ibrahim, cited above, § 140).",
"Admissibility",
"31. The Court notes that that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ arguments",
"The parties’ arguments",
"The parties’ arguments",
"(a) The Government",
"32. The Government stated at the outset that the Court was not a court of fourth instance, whereas the applicant had asked the Court to re-examine the facts of the case and to find a violation of domestic law, which task did not lie within the Court’s competence.",
"33. The Government further contended that the applicant’s rights vis-à-vis the enjoyment of his family life had not been restricted in any way. He had in fact never been prevented from sharing his religious thoughts with E., as confirmed by the Florence Court of Appeal decision (see paragraph 17 above).",
"34. In any case, the Government argued that the balancing exercise conducted by the domestic courts between the applicant’s rights under Articles 8 and 9 of the Convention and the child’s best interests had been perfectly consistent with the Court’s case-law. They submitted that adherence to the habits, activities and practices of one religious denomination was incompatible with adherence to the activities and practices of another denomination. This was why, in the event of disagreement between the parents as to the religious education to be given to their child, the domestic courts were empowered and required to act to protect the best interests of the child and to ensure the equal dignity of both parents.",
"35. In the present case, the domestic courts had completely refrained from grounding their decisions on an abstract reasoning linked to the applicant’s religion. On the contrary, they had mainly motivated the domestic courts’ decision with reference to the applicant’s behaviour in concealing E.’s involvement in the Jehovah’s Witnesses’ activities from S.G.",
"(b) The applicant",
"36. The applicant argued that the domestic courts’ decisions ordering him to refrain from actively involving his daughter E. in his religion, had disproportionately interfered with his right to private and family life. In this regard he claimed that there had been no evidence at all of a risk of actual harm to E. in his religious practices.",
"37. The applicant further claimed that the interference had been unforeseeable by reason of its vagueness. He alleged that he was unable to distinguish between the actions which were allowed and those which were prohibited.",
"38. Finally, he contended that all the decisions taken by the domestic courts had been tainted by a discriminatory bias against his religion. This had created in E.’s mind the discriminatory impression that, as compared with the Roman Catholic Church, his religion was dangerous and should be avoided.",
"39. In this regard, the applicant maintained that the domestic courts had only investigated his beliefs and practices, and not those of S.G., with the consequence that only he, and not S.G., had been ordered to refrain from actively involving E. in religious activities. The applicant challenged the domestic courts’ decisions endorsing P.C.’s conclusions as being discriminatory inasmuch as they had affirmed that E. should be encouraged to take part in Catholic activities in order to ensure her “healthy social growth” and to prevent her being “different from her peers”. He further challenged the domestic courts’ decisions affirming that it would be “prejudicial to E.’s interests to be involved in a religion that differs from Catholicism”.",
"The Court’s assessment",
"40. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.",
"41. The Court notes at the outset that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down (see Ilya Lyapin v. Russia, no. 70879/11, § 44, 30 June 2020). In the present case, the applicant’s relationship with his daughter was limited by the decisions of the domestic authorities. Therefore, the latter constituted an interference with the applicant’s right to respect for family life under Article 8 of the Convention.",
"42. The Court pointed out that the practical arrangements for exercising parental authority over children defined by the domestic courts could not, as such, infringe an applicant’s freedom to manifest his or her religion ( Deschomets v. France (dec.), no. 31956/02, 16 May 2006). It also emphasised the priority aim of taking account of the best interests of children, which involved reconciling the educational choices of each parent and attempting to strike a satisfactory balance between the parents’ individual conceptions, precluding any value judgments and, where necessary, laying down minimum rules on personal religious practices ( F.L. v. France (dec.), no. 61162/00, 3 November 2005).",
"43. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, among many authorities, Molla Sali v. Greece [GC], no. 20452/14, §§ 135-136, 19 December 2018, Vojnity v. Hungary, cited above, and Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003 ‑ XII).",
"44. The Court must therefore first examine whether the applicant can claim to have received different treatment. It observes that in the present case the domestic courts, in their decisions ordering the applicant to refrain from involving his daughter in his religious practices, had regard above all to the child’s interests. The child’s interests lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents.",
"45. At the same time, the Court notes that both P.C.’s report and the domestic courts’ decisions referred to the fact that involving E. in the applicant’s religious practices would destabilise her in that she would be induced to abandon her Roman Catholic religious habits. Moreover, P.C. and the domestic authorities also mentioned the applicant’s behaviour and the means he was using to involve E. in his religious practices, in particular his concealment from S.G. of E.’s involvement in the Jehovah’s Witnesses’ activities (see paragraph 14 above).",
"46. Even assuming that the applicant and S.G. could be considered to be in comparable situations, the Court observes that the contested measure had little influence on the applicant’s religious practices and was in any event aimed solely at resolving the conflict arising from the opposition between the two parents’ educational concepts, with a view to safeguarding the child’s best interests.",
"47. The Court further notes that no measure had been adopted to prevent the applicant from using the educational principles he has opted for in relation to E. Nor does it appear from the decisions contested by the applicant that he was prevented from taking part in the activities of the Jehovah’s Witnesses in a personal capacity. Rather, in the Court’s view, the national authorities attempted to reconcile the rights of each party, which was demonstrated by the attenuated nature of the contested measure.",
"48. The fact that the domestic courts ordered the applicant to refrain from actively involving his daughter in his religious activities did not severely circumscribe his relationship with her. In particular, he suffered no restrictions on his custody and visiting rights. The reasons given by the domestic courts show that they focused solely on the child’s interests, having decided to protect her from the purported stress exerted by the applicant’s intensive efforts to involve her in his religious activities. In that context, the Court notes that E. attended Jehovah’s Witnesses religious services from 2009 to 2015 (from the age of 3 until the age of 8, when the decision of the Livorno District Court ordered the applicant to refrain from actively involving her), and at the same time participated in religious discussions and prayers at the applicant’s home. Following P.C.’s report, the domestic courts concluded that the applicant’s attempts to involve E. in his religious activities more intensely would been harmful for her.",
"49. In this respect the Court observes that the present case does indeed differ from Palau-Martinez v. France (cited above), in which a violation of Article 8 in conjunction with Article 14 was found on account of the fact that residence rights had been determined on the basis of the applicants’ religious beliefs (see also, a contrario, Cosac v. Romania (dec.), no. 28129/05, 23 September 2014; Deschomets v. France (dec.), cited above; and F.L. v. France (dec.), cited above) and from Vojnity v. Hungary, cited above, where the Court found that there had been no reasonable relationship of proportionality between a total ban on the applicant’s access rights on the basis of his religious convictions and the aim pursued, namely the protection of the best interests of the child.",
"50. In the present case, the sole purpose of the contested measure was to preserve the child’s freedom of choice by taking into account her father’s educational views. Also, since circumstances may change over time and given that domestic decisions are not final and can therefore be revoked at any time, the applicant may reapply to the Livorno District Court for a review of the decision issued on 20 January 2015.",
"51. In view of the foregoing, the fact that the domestic courts ordered the applicant to refrain from actively involving the daughter in his religious practice cannot be seen as constituting a difference in treatment between him and the mother of the child based on religion.",
"52. The Court finds that there has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 8.",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"53. The applicant complained under Article 6 of the Convention that he had been denied a fair trial in that the domestic courts had failed to decide on his appeal as a matter of urgency. He recalled that the proceedings had lasted a total of 4 years, 8 months and 6 days, and that such a period of time had had irremediable consequences on his relationship with his daughter.",
"54. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], cited above, § 124), considers that the applicant’s complaints fall to be examined under the procedural limb of Article 8, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"55. The Government argued that the proceedings in issue had been complex and required specific technical investigation. At all events, they concluded that the overall length of time had not violated the applicant’s procedural rights under Article 8 of the Convention and had been perfectly in line with the Court’s case-law.",
"56. The Government further pointed out that the applicant had not suffered any restrictions in his custody rights vis-à-vis E., as the decision imposed by the domestic courts had solely concerned the child’s active involvement in the activities and religious services of the Jehovah’s Witnesses Community.",
"57. The Court recalls that although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and Cincimino v. Italy, no. 68884/13, § 64, 28 April 2016). In this connection, the Court may have regard to the length of the local authority’s decision-making process and any related judicial proceedings (see W. v. the United Kingdom, cited above, § 65). Effective respect for family life requires that future relations between a parent and child be determined solely in the light of all the relevant considerations, and not by the mere passage of time (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 I; D’Alconzo v. Italy, no. 64297/12, § 64, 23 February 2017; and Barnea and Caldararu v. Italy, no. 37931/15, § 86, 22 June 2017). Otherwise, there will be a failure to respect their family life, and the interference resulting from the decision cannot be regarded as “necessary” within the meaning of Article 8.",
"58. In this connection, the Court has further clarified that in cases concerning a parent’s relationship with his or her child, there is a duty to act swiftly and exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (see, mutatis mutandis, Kautzor v. Germany, no. 23338/09, § 81, 22 March 2012 and, in the context of contact rights, Endrizzi v. Italy, no. 71660/14, § 48, 23 March 2017, and Improta v. Italy, no. 66396/14, § 45, 4 May 2017).",
"59. Turning to the circumstances of the present case, the Court notes that the proceedings concerning E.’s custody began in September 2013. E. was heard without delay in February 2014. On 11 March 2014 the District Court invited the social services to assess the influence which the religious activities of both parties were having on E. from the psychological and behavioural points of view. Due to the latter’s inertia, the domestic courts promptly appointed an expert on 22 July 2014 (see paragraph 13 above). The latter submitted her technical expert report on 30 December 2014, and the Livorno District Court took its decision on 20 January 2015. Having regard to the sensitivity of the issues at stake and to the proactive approach of the Livorno District Court in dealing with the proceedings, the Court does not consider the length of the first instance proceedings to have been excessive.",
"60. Concerning the alleged length of the appeal proceedings, the Court notes that the Florence Court of Appeal took seven months to deal with the case, whereas the Court of Cassation took 24 months.",
"61. In this regard the Court notes, as the Government pointed out, that during this time the applicant sustained no restrictions on his custody and visiting rights. Moreover, he has not at all demonstrated how the length of the proceedings before the Florence Court of Appeal and the Court of Cassation could have had irremediable consequences on his relationship with his daughter.",
"62. In those circumstances, the Court finds that the applicant’s complaint is manifestly ill-founded and should therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention."
] |
88 | Keegan v. Ireland | 26 May 1994 | The applicant complained that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He also alleged that he had had no access to a court in respect of the proceedings before the Adoption Board. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It observed that the essential problem in the present case was with the fact that Irish law permitted the applicant’s child to have been placed for adoption shortly after her birth without his knowledge or consent. Such a state of affairs had not only jeopardised the proper development of the applicant’s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child. The Irish Government having advanced no reasons relevant to the welfare of the applicant’s daughter to justify such a departure from the principles that govern respect for family ties, the Court could therefore not consider that the interference which it had found with the applicant’s right to respect for family life had been necessary in a democratic society. The Court further held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. The applicant having had no rights under Irish law to challenge the placement decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally, his only recourse to impede the adoption of his daughter had been to bring guardianship and custody proceedings. By the time these proceedings had terminated, the scales concerning the child’s welfare had tilted inevitably in favour of the prospective adopters. | Parental Rights | Taking of children into care | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"6. The applicant met his girlfriend Miss V. (\"V.\") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married.",
"On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V. ’ s parents ’ home but was not permitted to see either V. or the child.",
"7. During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988.",
"A. The proceedings before the Circuit Court",
"8. The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child ’ s mother and the child ’ s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below).",
"9. On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.",
"B. The proceedings before the High Court",
"10. Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father ’ s rights be denied. Mr Justice Barron of the High Court stated:",
"\"I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is:",
"(1) whether the natural father is a fit person to be appointed guardian, and, if so:",
"(2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.",
"In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ...",
"In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing.\"",
"C. The proceedings before the Supreme Court",
"11. After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows:",
"\"(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed?",
"(2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?\"",
"12. Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court ’ s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia:",
"\"... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.",
"The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.",
"The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ...\"",
"He concluded that:",
"\"... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better\".",
"The matter was then referred back to the High Court for the case to be decided in light of this interpretation.",
"D. The subsequent proceedings before the High Court",
"13. The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant ’ s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming \"trust\" relationships.",
"14. In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond.",
"He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view \"to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law\".",
"Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows:",
"\"The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated.",
"In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused.\"",
"15. An adoption order was subsequently made in respect of the child."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Appeals to the Supreme Court",
"16. A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court ( Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated.",
"B. Adoption",
"17. The adoption of children in Ireland is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976.",
"Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála ) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child.",
"18. Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant ’ s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964).",
"1. Consent",
"19. As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows:",
"\"(1) An adoption order shall not be made without the consent of every person being the child ’ s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section.",
"(2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found.",
"...",
"(6) A consent may be withdrawn at any time before the making of an adoption order.\"",
"2. Entitlement to be heard by the Adoption Board",
"20. As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows:",
"\"(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order -",
"(a) the applicants,",
"(b) the mother of the child,",
"(c) the guardian of the child,",
"(d) a person having charge of or control over the child,",
"(e) a relative of the child,",
"(f) a representative of a registered adoption society which is or has been at any time concerned with the child,",
"(g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion,",
"(h) an officer of the Board,",
"( i ) any other person whom the Board, in its discretion, decides to hear.",
"(2) A person who is entitled to be heard may be represented by counsel or solicitor.",
"(3) The Board may hear the application wholly or partly in private.",
"(4) Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of.\"",
"21. The Supreme Court has held in the leading case of the State ( Nicolaou ) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the \"family\" in Article 41 of the Constitution related only to the \"family\" based on marriage.",
"3. Application to the High Court",
"22. Section 20 of the 1952 Act provides:",
"\"20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination.",
"(2) Subject to rules of court, a case stated under this section may be heard in camera.\"",
"C. Custody and guardianship",
"1. Welfare of the child",
"23. As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows:",
"\"3. Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.\"",
"\"Welfare\" in relation to an infant is defined as follows in section 2 of the said Act:",
"\" ‘ Welfare ’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant.\"",
"2. Rights of married parents",
"24. Section 6 of the 1964 Act provided as follows:",
"\"(1) The father and mother of an infant shall be guardians of the infant jointly.",
"(2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court.",
"(3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court.\"",
"3. Rights of the natural father",
"25. The definition of \"father\" under section 2 of the 1964 Act did not include the father of a child born out of wedlock.",
"26. The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way:",
"\"11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):",
"‘ (4) Where the mother of an infant has not married the infant ’ s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act. ’",
"12. The Act of 1964 is hereby amended by the insertion after section 6 of the following section:",
"‘ 6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant.",
"(2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ... ’\"",
"27. As regards court applications for custody of an infant, the 1964 Act provided as follows:",
"\"11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.",
"(2) The court may by an order under this section",
"(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;",
"...\"",
"28. This section of the 1964 Act was amended by the 1987 Act as follows:",
"\"13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):",
"‘ (4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him. ’\"",
"4. Powers of guardians",
"29. The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10).",
"D. Recent developments in Irish adoption practice",
"30. The following developments have taken place subsequent to the facts of the present case.",
"By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is.",
"Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings.",
"By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is",
"(a) named as father on the child ’ s birth certificate, (b) in a continuous relationship with the mother,",
"he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application.",
"In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption.",
"PROCEEDINGS BEFORE THE COMMISSION",
"31. Mr Keegan applied to the Commission on 1 May 1990. He complained that there had been a violation of his right to respect for family life (Article 8 of the Convention) (art. 8) in that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He further complained of a denial of his right of access to court (Article 6 para. 1) (art. 6-1) in that he had no locus standi in the proceedings before the Adoption Board. He also alleged that, as the natural father, he had been discriminated against in the exercise of the above-mentioned rights (Article 14 taken in conjunction with Article 6 and/or Article 8) (art. 14+6, art. 14+8) when his position was compared to that of a married father.",
"32. The application (no. 16969/90) was declared admissible on 13 February 1992. In its report of 17 February 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 8 and of Article 6 para. 1 (art. 8, art. 6-1) (unanimously) and that it was not necessary to examine whether there had been a violation of Article 14 taken in conjunction with Article 6 and/or Article 8 (art. 14+6, art. 14+8) (by eleven votes to one).",
"The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*].",
"AS TO THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS",
"A. Whether the applicant can complain on his daughter ’ s behalf",
"33. The Government submitted that the applicant has no locus standi in relation to complaints by his daughter since only a person who exercises parental rights or is a guardian is entitled to bring a complaint under the Convention on behalf of a child.",
"34. In the course of the hearing before the Court the applicant indicated that it would no longer be appropriate for him to pursue any claim in respect of alleged infringements of his daughter ’ s rights in the light of an adoption order now having been made in respect of her (see paragraph 15 above).",
"35. In view of this position, the Court considers that it is only called upon to examine allegations concerning violations of the applicant ’ s rights. It is thus unnecessary to examine the Government ’ s objection on this point.",
"B. Whether the applicant failed to exhaust domestic remedies",
"36. The Government contended that the application should be rejected for non-exhaustion of domestic remedies, contrary to Article 26 (art. 26) of the Convention, on the grounds:",
"(1) that the applicant had not appealed to the Supreme Court against the final determination of the guardianship and custody proceedings by the High Court;",
"(2) that he had failed to complain before the Irish courts of the fact that the law did not enable him to become involved in the adoption process and, in particular, to be consulted by the Adoption Board prior to any adoption;",
"(3) that he had not challenged the constitutionality of the legal provisions relating to a natural father by bringing proceedings in the High Court alleging that the State had failed to afford him equal treatment compared to a married father and had failed to vindicate his personal rights.",
"37. Both the applicant and the Commission contended that there was no substance in any of these grounds.",
"38. The Court notes that the Government had raised points (2) and (3) in the proceedings before the Commission but not point (1). Accordingly they are estopped from raising this objection before the Court.",
"Apart from this, under Irish law no appeal lies from the decision of the High Court on an appeal from the Circuit Court (see paragraph 16 above).",
"39. As regards points (2) and (3) the Court recalls that the only remedies required to be exhausted are remedies which are effective and capable of redressing the alleged violation (see, amongst many authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p.23, para. 48). It considers that the applicant would have had no prospect of success in making these claims before the courts having regard to the case-law of the Supreme Court which denies to a natural father any constitutional right to take part in the adoption process (see paragraph 21 above).",
"40. It follows that the Government ’ s objections based on non- exhaustion of domestic remedies fail.",
"II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)",
"41. The applicant alleged a violation of his right to respect for family life contrary to Article 8 (art. 8) of the Convention which provides:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"A. Applicability of Article 8 (art. 8)",
"42. The Government maintained that the sporadic and unstable relationship between the applicant and the mother had come to an end before the birth of the child and did not have the minimal levels of seriousness, depth and commitment to cross the threshold into family life within the meaning of Article 8 (art. 8). Moreover, there was no period during the life of the child in which a recognised family life involving her had been in existence. In their view neither a mere blood link nor a sincere and heartfelt desire for family life were enough to create it.",
"43. For both the applicant and the Commission, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship.",
"44. The Court recalls that the notion of the \"family\" in this provision is not confined solely to marriage-based relationships and may encompass other de facto \"family\" ties where the parties are living together outside of marriage (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55). A child born out of such a relationship is ipso iure part of that \"family\" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended (see, mutatis mutandis, the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).",
"45. In the present case, the relationship between the applicant and the child ’ s mother lasted for two years during one of which they co-habited. Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married (see paragraph 6 above). Their relationship at this time had thus the hallmark of family life for the purposes of Article 8 (art. 8). The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation. It follows that from the moment of the child ’ s birth there existed between the applicant and his daughter a bond amounting to family life.",
"B. Compliance with Article 8 (art. 8)",
"1. Paragraph 1 of Article 8 (art. 8-1)",
"46. The applicant maintained that the State failed to respect his family life by facilitating the secret placement of his daughter for adoption without his knowledge or consent and by failing to create a legal nexus between himself and his daughter from the moment of birth.",
"Moreover, the test applied by the Supreme Court to determine the question of custody placed him at a considerable disadvantage vis-à-vis the adoptive parents by requiring him to show that any advantages that they had to offer the child were not important for her welfare. In his submission, to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for custody with strangers, there ought to have existed a rebuttable legal presumption that the child ’ s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child.",
"47. For the Government, Contracting States enjoy a wide margin of appreciation in the area of adoption. The right to respect for family life cannot be interpreted so broadly as to embrace a right to impose the wishes of the natural father over the interests of the child in disregard of the findings of fact made by the courts.",
"The applicant, as the Supreme Court had held, had a right to apply to be made a guardian, which right he had exercised. Furthermore, the Supreme Court took into account the blood link between him and his daughter as one of the factors to be weighed in the balance in assessing the child ’ s welfare. In addition, the applicant had every opportunity to present his case and to have his interests considered by the courts. However, in this process the rights and interests of the mother, who had wanted her child to be adopted, had also to be taken into account.",
"In particular, the Government emphasised that to grant a natural father a defeasible right to guardianship could give rise to complications, anguish and hardship in other cases and concerned a matter of social policy on which the European Court should be reluctant to intervene.",
"48. In the Commission ’ s view the obstacles under Irish law to the applicant establishing a relationship with his daughter constituted a lack of respect for his family life in breach of a positive obligation imposed by Article 8 (art. 8).",
"49. The Court recalls that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective \"respect\" for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41, and the above-mentioned Johnston and Others judgment, p. 25, para. 55 ).",
"50. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child ’ s integration in his family (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31, and the above-mentioned Johnston and Others judgment, p. 29, para. 72). In this context reference may be made to the principle laid down in Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989 that a child has, as far as possible, the right to be cared for by his or her parents. It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see, inter alia, the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, para. 58).",
"51. In the present case the obligations inherent in Article 8 (art. 8) are closely intertwined, bearing in mind the State ’ s involvement in the adoption process. The fact that Irish law permitted the secret placement of the child for adoption without the applicant ’ s knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life. Such interference is permissible only if the conditions set out in paragraph 2 of Article 8 (art. 8-2) are satisfied.",
"52. In view of this finding, it is not necessary to examine whether Article 8 (art. 8) imposed a positive obligation on Ireland to confer an automatic but defeasible right to guardianship on natural fathers such as the applicant.",
"2. Paragraph 2 of Article 8 (art. 8-2)",
"(a) \"In accordance with the law\" and legitimate aim",
"53. It is clear that the decision to place the child for adoption without the father ’ s knowledge or consent was in accordance with Irish law as were the decisions taken by the courts concerning the welfare of the child. That they pursued the legitimate aim of protecting the rights and freedoms of the child is evident from the judgments of the High Court and the Supreme Court in this case (see paragraphs 10-14 above).",
"(b) Necessity in a democratic society",
"54. For the Government, the interference was proportionate to the protection of the child ’ s health as well as of her rights and freedoms. The interpretation of Irish law by the Supreme Court took proper account of the paramount interests of the child. It remained open to the natural father to apply to the courts to be appointed, where appropriate, the guardian and/or custodian of the child.",
"They contended that it was fair and wholly consistent with the Convention that special regulations be enforced to protect the interests of a child born out of wedlock. Indeed it would be impractical and potentially harmful to the interests of such a child to grant the natural father rights that extended beyond a right to apply for guardianship. In any event the Adoption Board may, in its discretion, decide to hear the natural father.",
"55. The Court notes that the applicant was afforded an opportunity under Irish law to claim the guardianship and custody of his daughter and that his interests were fairly weighed in the balance by the High Court in its evaluation of her welfare. However, the essential problem in the present case is not with this assessment but rather with the fact that Irish law permitted the applicant ’ s child to have been placed for adoption shortly after her birth without his knowledge or consent. As has been observed in a similar context, where a child is placed with alternative carers he or she may in the course of time establish with them new bonds which it might not be in his or her interests to disturb or interrupt by reversing a previous decision as to care (see, inter alia, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, para. 62). Such a state of affairs not only jeopardised the proper development of the applicant ’ s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child.",
"The Government have advanced no reasons relevant to the welfare of the applicant ’ s daughter to justify such a departure from the principles that govern respect for family ties. That being so, the Court cannot consider that the interference which it has found with the applicant ’ s right to respect for family life, encompassing the full scope of the State ’ s obligations, was necessary in a democratic society. There has thus been a violation of Article 8 (art. 8).",
"III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)",
"56. The applicant complained that he had no access to a court under Irish law to challenge the placement of his child for adoption and no standing in the adoption procedure. He invoked Article 6 para. 1 (art. 6-1) of the Convention according to which:",
"\"1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...\"",
"The Commission upheld his complaint.",
"A. Applicability",
"57. The Court considers that Article 6 para. 1 (art. 6-1) is applicable to the present dispute (see, inter alia, the above-mentioned W. v. the United Kingdom judgment, pp. 32-35, paras. 72-79). Indeed this has not been seriously contested by the Government in the proceedings before the Court.",
"B. Compliance",
"58. The Government submitted in the first place that the Adoption Board was not a court and thus the fact that the applicant had no statutory right to be heard by that body could not infringe this provision. Secondly, it was open to the applicant to apply to the courts for guardianship and custody of his daughter, which he did. Since these proceedings controlled and determined the activities of the Adoption Board which can make no order where it has notice of such an action, Article 6 para. 1 (art. 6-1) was complied with (see paragraph 20 above).",
"59. In the Court ’ s view the adoption process must be distinguished from the guardianship and custody proceedings. As has been previously observed, the central problem in the present case relates to the placement of the child for adoption without the prior knowledge and consent of the applicant (see paragraph 51 above). The applicant had no rights under Irish law to challenge this decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally (see paragraphs 20-22 above). His only recourse to impede the adoption of his daughter was to bring guardianship and custody proceedings (see paragraphs 8-14 above). By the time these proceedings had terminated the scales concerning the child ’ s welfare had tilted inevitably in favour of the prospective adopters.",
"Against this background, it is not necessary to decide whether the Adoption Board, which admittedly exercises certain quasi-judicial functions, is a tribunal within the meaning of Article 6 para. 1 (art. 6-1).",
"60. There has thus been a breach of this provision.",
"IV. ALLEGED VIOLATION OF ARTICLE 14 (art. 14)",
"61. The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention in conjunction with Article 8 (art. 14+8) in the enjoyment of his right to respect for family life and in conjunction with Article 6 para. 1 (art. 14+6-1) as regards his right of access to court. He maintained that a married father in similar circumstances enjoyed the full protection of Articles 8 and 6 (art. 8, art. 6).",
"62. Having regard to its findings in respect of both of these provisions (see paragraphs 55 and 60 above) the Court does not consider it necessary to examine this complaint (see the above-mentioned Open Door and Dublin Well Woman judgment, p. 32, para. 83).",
"V. APPLICATION OF ARTICLE 50 (art. 50)",
"63. Article 50 (art. 50) of the Convention provides as follows:",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"A. Damage",
"1. Pecuniary loss",
"64. The applicant claimed IR £2,000 which he had been obliged to pay before his entitlement to legal aid in respect of the guardianship and custody proceedings.",
"65. The Government made no objection. The Court considers that this sum should be awarded in full.",
"2. Non-pecuniary loss",
"66. The applicant submitted that he should be awarded substantial damages having regard to the fact that his daughter has now been adopted following two years of traumatic court proceedings and that it is unlikely that he will ever be re-united with her. He emphasised, as previously mentioned, that he was not seeking to overturn the adoption order (see paragraph 46 above).",
"67. The Government contended that a finding of a violation would constitute adequate just satisfaction in the circumstances of the case.",
"68. The Court is of the view that damages are appropriate in this case having regard to the trauma, anxiety and feelings of injustice that the applicant must have experienced as a result of the procedure leading to the adoption of his daughter as well as the guardianship and custody proceedings. It awards him IR £10,000 under this head.",
"B. Costs and expenses",
"69. The applicant claimed a total amount of IR £42,863 by way of costs and expenses. He submitted inter alia an affidavit from a practising cost accountant in Ireland by way of substantiation of the reasonableness of his claim.",
"70. The Government submitted that there should be a reduction of IR £5,000 in respect of solicitor ’ s fees and IR £3,700 in respect of counsel ’ s fees.",
"71. The Court observes that whereas the applicant has furnished it with a detailed substantiation of his claim the Government have provided no evidence in support of their submission. In such circumstances the claim should be allowed in full less 51,691.29 French francs already paid by way of legal aid in respect of fees and expenses.",
"This amount is to be increased by any value-added tax that may be chargeable."
] |
89 | T.P. and K.M. v. United Kingdom | 10 May 2001 (Grand Chamber) | This case concerned the placement of a four-year-old girl in the care of the local authorities. She had complained that she had been sexually abused and her mother was considered incapable of protecting her. The mother and daughter alleged that they had had no access to a court or to an effective remedy to challenge the lack of justification for this placement, which had separated them. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, the mother having been deprived of an adequate involvement in the decision-making process concerning the care of her daughter. It further held that there had been no violation of Article 6 (right to a fair trial) of the Convention, as the applicants had not been deprived of any right to a determination on the merits of their negligence claims against the local authority. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, as the applicants had had no appropriate means of obtaining a determination of their allegations that their right to respect for their family life had been breached, and no possibility of obtaining an enforceable award of compensation for the damage suffered as a result. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. T.P., the first applicant, gave birth to her daughter, K.M., the second applicant, on 29 January 1983. T.P. was then aged 17 years.",
"10. Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that the second applicant was being sexually abused, partly as a result of the second applicant having a persistent urinary tract infection, partly because of her behaviour, including a remark made at the children’s hospital where she was admitted for treatment. She had told a social worker that B., the first applicant’s then boyfriend, had “hurt my bum”. In or about March 1986, surgery took place to re-implant the second applicant’s right ureter into her bladder. At a date unspecified, she also had surgery to remove a false second kidney. She continued to have urinary problems and associated infections.",
"11. There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986. Concern was expressed, inter alia, about the applicants’ home situation, where there was “a steady stream of young men” and about the first applicant’s ability to protect the second applicant and general parenting skills. The social worker Mr P. had mentioned the possibility of sexual abuse with the first applicant. In a later affidavit, he stated that she appeared angry that it was a concern and claimed that she never left K.M. alone with anyone and that K.M. would tell her if anyone hurt her.",
"12. In June 1987, during a visit to their home, social workers obtained information regarding their living arrangements including the fact that XY, the first applicant’s boyfriend, lived with the applicants. Concern was expressed regarding the first applicant’s care of her daughter and a case conference was held on 2 July 1987 to which the first applicant was not invited. As a result of the conference, the second applicant was placed on the Child Protection Register under the category of emotional abuse. It was also agreed at the conference that the social worker Mr P would obtain the first applicant’s consent for the second applicant to have a disclosure interview at a child guidance clinic. A further medical examination of the second applicant at the children’s hospital discovered no medical cause for her recurrent urinary infection. The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic.",
"13. On 13 November 1987, at a child guidance clinic, the second applicant was interviewed by a consultant child psychiatrist, Dr V., employed by Newham health authority. The social worker, Mr P., was present during the interview whilst the first applicant waited in an adjoining room. The interview was recorded on videotape. The second applicant was aged four years and nine months at this time.",
"14. In the course of the interview, the second applicant disclosed that she had been abused by someone named X. The first applicant’s boyfriend, XY, shared the same first name, X, as the abuser. The transcript recorded inter alia :",
"“Dr V.: (referring to a drawing made by K.M.) Whose face is that then?... Is that anyone, anybody special that face or just any face?",
"K.M.: X’s.",
"Dr V.: X’s face OK. Then who’s X? Is X someone you know?",
"K.M.: My mum’s X.",
"Dr V.: Oh your mum’s X. What is that mummy’s boyfriend. Is it?",
"K.M. shakes her head.",
"...",
"Dr V.: ... Is X still living at home with you?",
"K.M.: shakes her head.",
"Dr V.: He’s not.",
"K.M.: Thrown him out my mum.",
"Dr V.: Your mum throwed him out did she.",
"...",
"K.M.: He’s coming in tomorrow.",
"Dr V.: He’s coming in no more.",
"K.M.: No he’s coming in tomorrow.",
"Dr V.: He’s coming in tomorrow. What X.",
"K.M. nods.”",
"15. The first applicant was then interviewed, again on video, and informed that the second applicant had disclosed that she had been sexually abused by XY. She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination. When the first applicant asked whether or not her daughter was being taken into care, she received no reply. Dr V. also told the first applicant that she could see the recording of the interview with her daughter at some point.",
"16. After the interview, the first applicant asked her daughter if she had been abused by XY. The first applicant stated that the second applicant denied that she had been abused by XY and told this to Mr P. When the first applicant became agitated and angry, Dr V. and Mr P. both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation. Mr P. and Dr V. came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately. In comments made to the first applicant in her interview, the possibility that in due course she could see the video of the disclosure interview was referred to by Dr V. and Mr P.",
"17. Later, on 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order. The local authority stated that the second applicant had been abused, had identified XY as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The first applicant was not in court. A place of safety order was granted for 28 days.",
"18. On 18 November 1987, the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings.",
"19. On 24 November 1987, the first applicant, having excluded all men from her home, applied to the High Court for the second applicant to be made a ward of court. The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse. The local authority was awarded care and control of the second applicant and the first applicant was granted limited access. The local authority did not volunteer the video of the interview with the child.",
"20. Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant was permitted initially two hours of supervised contact with her daughter each week at the foster parent’s home. Following concerns that the first applicant was trying to induce her daughter to retract her evidence and was causing her distress, that access was altered to no telephone calls and one supervised access visit per week at the social services’ office. The second applicant had no contact with her extended family, including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority.",
"21. During this period the second applicant continued to have urinary problems, including incontinence. In April 1988, she underwent another operation, which improved her condition, though she remained subject to frequent infections.",
"22. During 1988, the first applicant gave birth to a son, D., fathered by XY. D. was made a ward of court but the local authority did not apply to remove D. from the care of his mother and XY.",
"23. In or about October 1988, Dr B., who had been instructed on behalf of the first applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused, obtained the consent of Dr V. to view the video recording of the second applicant’s disclosure interview. In his letter dated 17 October 1988 to the first applicant’s solicitor, he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and that there appeared to be little doubt that she was identifying the mother’s boyfriend as the perpetrator. He recommended that the first applicant be allowed to see the video. He referred to Dr V.’s continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information. Dr V. informed Dr B. that she would not consent to the first applicant having access to the video until after the full hearing in the wardship trial.",
"24. On 1 November 1988, during the wardship proceedings regarding D., Registrar Conn ordered that the video be disclosed within seven days. The health authority and Dr V. issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant.",
"25. In her affidavit of 8 November 1988, Dr V. expressed her opinion that medical confidentiality be attached to the video and that it should only be disclosed if in the interests of the child, which the circumstances showed was not the case.",
"“It is my professional belief that for the parties to see the video recording is not in the interests of children, and in particular not in this case. The possible harm to children arises from them being in the position whereby their words or actions, given in confidence, may control events or decisions. Anger, unforgiveness or victimisation may well be directed at the child especially if the purpose of the viewing is to enable a party to seek to establish his or her innocence of alleged Child Sexual abuse or to confirm a party’s view that no Child Sexual abuse has taken place and that the child must be lying.”",
"She had no objection to the lawyers and medical experts seeing the tape and transcript.",
"26. By reports dated 11 November 1988, Dr B. and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children. Dr B. noted generally that the mothers of abused children would often be in a position to clarify details, including the identity of the alleged abuser. He also understood that the video had already been shown by the police to XY in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity. He saw no risk of harm flowing to the second applicant from such disclosure.",
"27. On an unspecified date at or about that time, the first applicant’s solicitors had sight of the transcript. The transcript showed that the second applicant had shaken her head when asked whether the abuser was living at home and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters, which were inconsistent with the identification of XY as the abuser, were raised by the first applicant’s solicitors with the local authority on or about 11 November 1988, when the summons concerning the video was to be heard.",
"28. On 21 November 1988, at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and XY for a trial period of four to six months at which point a final proposal would be made. In a report dated 18 November submitted for that hearing, a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case, that there was now doubt as to the identity of the abuser but that whoever it was, the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her. While there had been doubts as to the first applicant’s ability to be a “good enough parent”, it was noted that her situation had changed – she had “matured”, had had a second child and was in a stable relationship with the second child’s father. If over the trial period, any further abuse occurred, it was proposed that the second applicant be removed permanently with a view to adoption and that D.’s future be assessed. In her affidavit of 21 November 1998, the first applicant said that she had been informed, and believed, that the video and transcript had been reviewed by the local authority who had concluded that her boyfriend XY was no longer a suspected abuser. Mr Justice Lincoln ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant. The matter was adjourned for a period of not more than six months.",
"29. The second applicant remained with the first applicant from that time onwards. In about November 1989, the final hearing took place in the High Court. The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court. The wardship was discharged.",
"30. On 8 November 1990, the applicants issued proceedings making allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P., and the psychiatrist, Dr V., failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant. The health authority and Dr V. were also named as defendants. The applicants claimed that as a result of their enforced separation each of them had suffered a psychiatric disorder.",
"31. Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis. He issued two reports, one dated 21 February 1991 and the second undated, concerning the effects of the separation and proceedings.",
"32. On 19 November 1992, Master Topley struck out the application as revealing no cause of action on the basis that Dr V. enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims. The applicants’ appeal to the High Court was dismissed on 17 March 1993 by Judge Phelan who held that no claim could arise from any alleged right to custody of a child which would give rise to an award of damages.",
"33. In the Court of Appeal, the High Court’s striking out decision was upheld on 23 February 1994. The majority found that no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980 could arise, due to the general nature of the duty, the imprecise terms in which it was couched and the fact that the alleged breach of duty took place before the child was taken into care under the statutory duty in question. They held in respect of the claims that Mr P. and Dr V. were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions. The psychiatrist Dr V. was acting in order to advise the local authority and owed a duty of care to the local authority, not to the first or second applicant. Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries. Reference was made to the policy considerations weighing against imposing liability in such matters. However, the Master of the Rolls, Sir Thomas Bingham, dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority (reported as M v. Newham LBC; X v. Bedfordshire CC (CA) 2WLR 554). Leave was granted to appeal to the House of Lords.",
"34. On appeal to the House of Lords, the decision of the majority of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson delivered the leading judgment concerning three cases, the Bedfordshire case, the Newham case (the applicants’ case) and the Dorset case (reported as X and Others v. Bedfordshire County Council [1995] 3 AER 353).",
"35. As regarded the claims for breach of statutory duty made in both the Newham and Bedfordshire cases, Lord Browne-Wilkinson held:",
"“... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...",
"When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”",
"36. In respect of the applicants’ claim in the Newham case that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows:",
"“In the Newham case [the applicant’s case] the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...”",
"Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...",
"In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ...",
"Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ...",
"In the Newham case [the applicant’s case] it is not alleged that the borough council was under any direct duty of care to the plaintiffs: the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants.”",
"37. In the Bedfordshire case, where the applicant children had argued that the local authority owed them a direct duty of care in the exercise of their child care functions, Lord Browne-Wilkinson stated, insofar as relevant, as follows:",
"“I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...",
"The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.",
"First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.",
"Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244:",
"‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’",
"Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.",
"The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.",
"If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.",
"Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Local authority’s duties in respect of child care",
"38. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980.",
"Sections 1 and 2 of the Child Care Act 1980 provided that:",
"“1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.",
"2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen-",
"(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;",
"(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and",
"(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.”",
"B. Place of safety orders",
"39. Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control.",
"40. The place of safety order was replaced with the emergency protection order under section 44 of the Children Act 1989, which came into force on 14 October 1991. This provided for removal of a child on emergency grounds for a maximum period of 72 hours.",
"C. Complaints procedures concerning local authorities",
"41. Section 76 of the Child Care Act 1980 permitted the Secretary of State to cause an inquiry to be held into any matter relating, inter alia :",
"“the functions of the social services committee of a local authority, in so far as those functions relate to children.”",
"42. Pursuant to Part III of the Local Government Act 1974, as amended, the Local Commissioner for Administration (the Local Government Ombudsman) had the function, inter alia, of investigating written complaints by persons who claim to have sustained injustice “in consequence of maladministration in connection with ... action taken in exercise of administrative functions of local authorities”. On conclusion of an investigation, Local Government Ombudsmen could recommend an appropriate remedy, including the payment of compensation, where maladministration was found.",
"D. Wardship",
"43. The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court.",
"44. As soon as the originating summons was issued, the custody of the child vested in the court. From that moment, the parties to the proceedings, including the local authority, only had such power and authority over the child as was conferred by the court.",
"E. Actions against the local authority for damages",
"45. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence, defamation etc.",
"46. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:",
"– that damage to the claimant was foreseeable;",
"– that the claimant was in an appropriate relationship of proximity to the defendant;",
"– that it is fair, just and reasonable to impose liability on the defendant.",
"These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).",
"47. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.",
"48. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The leading judgment is reported at length in the facts above (see paragraphs 45-46).",
"49. Since the X. and Others case, there has been two further significant judgments regarding the extent of liability of local authorities in child care matters.",
"50. The Court of Appeal gave judgment in the W and Others v. Essex County Council ([1998] 3 All ER 111, judgment of 2 April 1998). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G, a 15 year old boy, in their home although they knew that he was a suspect or known sexual abuser. During G’s stay in their home, the plaintiffs’ three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents’ claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal’s findings as follows:",
"“(1) ... In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that the common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents ...",
"(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...”",
"51. On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed.",
"52. The House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.",
"53. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care:",
"“(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”",
"F. Striking out procedure",
"54. At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.",
"55. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, even assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.",
"56. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issued need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"57. The applicants complained that K.M. had been unjustifiably removed from her mother, T.P.’s care in violation of their right to respect for family life. Article 8 as relevant provides:",
"“1. Everyone has the right to respect for his ... family life...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"58. The Government disputed that there had been any failure to comply with the requirements of Article 8 of the Convention, while the Commission found by 17 votes to 2 that there had been a violation of Article 8 in that the first applicant was not provided with a proper, fair or adequate opportunity to participate in the decision-making procedures following the removal of the second applicant as an emergency measure.",
"A. The parties’ submissions",
"59. The applicants submitted that the removal of the second applicant was not necessary or supported by relevant and sufficient reasons and that the procedures for removing the child completely disregarded requirements in Article 8 that there must be inherent procedural safeguards. They considered that the removal was not in accordance with law as the decision of the court was based on the local authority’s wrongful assertions that the factual basis existed justifying an emergency order. Since the abuser was not living in the house, there was no immediate emergency and the matter should properly have been dealt with at a hearing on notice, at which the first applicant could appear and be represented. They submitted that the ex parte place of safety order procedure was abused in practice, being imposed for too long a period, without the grounds being sufficiently focussed on emergencies.",
"60. The applicants submitted that the authorities’ reaction to the disclosure interview was also incompatible with the requirements of Article 8. Dr V. and Dr P. should have picked up the second applicant’s references to X as not necessarily referring to the first applicant’s boyfriend and taken further investigative steps to establish who X was. It was indicated in the interview that the abuse had stopped and the abuser thrown out of the house. The first applicant’s reaction of shock and anger to the interpretation placed on the interview that her boyfriend was the abuser was natural in the circumstances. The removal of the second applicant was a manifest error which should not have occurred.",
"61. The applicants argued that the authorities failed to pay proper attention to what the child told them and failed, for almost a year, to give the first applicant the opportunity to view the evidence on which they based their conclusions. They adopted the Commission’s views that it was vital for parents to be fully informed about serious allegations relating to the abuse of their children and that the authorities should have made the video material available to the first applicant as soon as practically possible.",
"62. The Government submitted that the removal of the second applicant was in accordance with law and pursued the legitimate aim of protecting her welfare, as it was implemented to protect her from the risk of sexual abuse the occurrence of which evidence strongly supported. The emergency nature of the measure had been justified by the clear and strong indications of abuse given by the second applicant and the legitimate concern by the local authority as to whether the first applicant was able to protect her from further abuse.",
"63. The Government denied that the first applicant was not provided with a proper, fair or adequate opportunity to participate in the decision-making procedures following the removal of the second applicant, as found by the Commission. Though the place of safety order was made ex parte, it was for a maximum of one month and the applicant could apply to the court at any time to have the order revoked. She was also able, as she did, to invoke the wardship jurisdiction of the High Court. The first applicant could have applied to that court for, inter alia, care and control of the second applicant to be returned to her or for the second applicant to reside with her. They submitted that it was open to the first applicant to put such evidence as she considered appropriate before the court with a view to supporting these applications.",
"64. The Government pointed out that the first applicant could have applied to the court for disclosure of the video. She was represented by lawyers throughout and she had not provided any explanation for why this step was not taken. Securing the video was the obvious starting point for any challenge to the justification for the separation of mother and child. They emphasised that all involved in the case were convinced that the second applicant had been a victim of sexual abuse and was in need of protection which her mother could not provide. In that context the identity of the abuser was a secondary issue. Furthermore, when the mistake concerning the identification of the abuser came to light, the subsequent steps taken were speedy, adequate and not disputed by the first applicant.",
"B. The Court’s assessment",
"65. The Court notes that it is not disputed that the measures by which the second applicant was removed into care by the local authority until she was returned home a year later disclosed an interference with the applicants’ right to respect for their family life under Article 8 § 1 of the Convention. It has therefore examined whether this interference complied with the requirements of the second paragraph of Article 8, namely, whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.",
"1. “In accordance with the law”",
"66. The applicants disputed that the removal of the second applicant was lawful as it was based on a wrongful assessment of the need for an emergency measure derived from the mistaken interpretation by Dr V. and Mr P. of the second applicant’s disclosures as to the identity of the abuser.",
"67. The Court recalls that the place of safety order was issued by the court under section 28 of the Children and Young Persons Act 1969. The local authority had applied to the court, stating that the second applicant had been abused, had identified XY as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation (see paragraph 17 above). The court had jurisdiction to issue the order where the party applying to the court had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated (see paragraph 39 above). Since it is accepted that there was strong evidence that the second applicant had been abused, the Court is not persuaded that the factual error made by the local authority as to the identity of the abuser is such as to deprive the exercise of the court’s power to issue the order of its basis in domestic law.",
"68. The removal, and the continuance of the care measure under the wardship jurisdiction of the High Court, were consequently “in accordance with the law”.",
"2. Legitimate aim",
"69. In the Court’s view, the removal and subsequent measures were clearly aimed at protecting the “health or morals” and the “rights and freedoms” of the child. Accordingly they pursued legitimate aims within the meaning of paragraph 2 of Article 8.",
"3. “Necessary in a democratic society”",
"(a) General principles",
"70. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis, the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1491, § 59).",
"71. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1003, § 64).",
"72. The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:",
"“[W]hat has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.” (see the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 28-29, §§ 62 and 64).",
"73. It has previously found that the failure to disclose relevant documents to parents during the procedures instituted by the authorities in placing and maintaining a child in care meant that the decision-making process determining the custody and access arrangements did not afford the requisite protection of the parents’ interests as safeguarded by Article 8 (see the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 57, § 92).",
"(b) Application in the present case",
"74. As concerns the measure taken to remove the second applicant into care, the Court considers that this was supported by relevant and sufficient reasons, namely, the strong suspicions that she had been abused and the doubts which existed as to the first applicant’s ability to protect her (see paragraphs 10 to 16 above). In that latter context, it may be noted that the abuse had taken place in the first applicant’s home without her apparently being aware and that the first applicant’s reaction, however natural in the circumstances, tended towards a denial of the allegations. It also appears from the interview that while at one point the second applicant had described the abuser as having been thrown out of the house, at another point she referred to X as coming to the house the next day (see paragraph 14 above).",
"75. The Court is not persuaded however that the mistake made by Dr V. and Mr P. in assuming that the second applicant was referring to the first applicant’s boyfriend XY was of such a nature as to deprive the decision to remove the second applicant into care of a legitimate basis. The second applicant was less than five years old at the time of the interview and the process of questioning her was a sensitive and delicate one, as was interpreting the sense of her responses, verbally and with regard to her body language. The second applicant frequently did not speak in grammatical sentences and appeared to contradict herself on several occasions. The fact that the second applicant shook her head would not necessarily indicate an unequivocal denial of the question put. Dr B., the consultant psychiatrist instructed by the first applicant, commented positively on the way in which Dr V. handled the interview and agreed with her conclusions as to the existence of the abuse and the identity of the abuser (see paragraph 23 above).",
"76. The Court finds therefore that the use of the emergency procedure to take the second applicant into care may be regarded as a proportionate measure and “necessary in a democratic society” for protecting the second applicant’s health and rights.",
"77. The second applicant remained in care until 21 November 1988, when the High Court ordered that she be returned home. That decision was taken shortly after the transcript of the video was disclosed to the applicant’s solicitor. At that stage it became apparent that the local authority had mistakenly identified the abuser X as XY. In recommending that the second applicant returned home, the local authority also referred to the evidence that in the intervening period the first applicant had matured and shown herself more capable of providing a stable and secure environment for the second applicant. The second applicant was then returned to the first applicant’s care for a trial period subject to supervision and review in case of renewed problems. It was one year before the High Court ended its supervisory wardship role (see paragraphs 27 to 29 above).",
"78. The Court reiterates that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see the Hokkanen v. Finland judgment, cited above, p. 20, § 55 and the authorities cited there). During the separation, access between the applicants was severely restricted and there was no contact with the second applicant’s wider family. Her grandmother died during this period. Notwithstanding therefore that the initial measure was justified, the Court has examined whether the procedures which followed were compatible with the requirements of Article 8 in ensuring that they protected the interests of the first applicant and second applicant in this respect.",
"79. The Court notes that the Commission criticised the place of safety order as imposing a measure lasting 28 days. This was however the maximum length of time possible and a parent was able to apply to the court within that period to have the measure lifted. In the present case, the first applicant brought the matter before the High Court within eleven days. The Court does not find therefore that the place of safety order by itself disclosed any disproportionate obstacle to the first applicant’s ability to challenge the removal of her daughter into care.",
"80. The Court does however consider that it is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. A parent may claim an interest in being informed of the nature and extent of the allegations of abuse made by his or her child. This is relevant not only to the parent’s ability to put forward those matters militating in favour of his or her capability in providing the child with proper care and protection but also to enable the parent to understand and come to terms with traumatic events effecting the family as a whole. There may be instances where disclosure of a child’s statements may place that child at risk. There can be no absolute right by a parent to view, for example, the videos of interviews conducted by medical professionals.",
"81. Nonetheless, the potential importance of the contents of such interviews renders it necessary for careful consideration to be given to whether they should be disclosed to the parents. In this case the revelations of abuse by the second applicant as recorded on the video and transcript were relied on by the local authority in obtaining the emergency measure of a place of safety order and in justifying the continuation of care measures before the High Court. The local authority, which is charged with the duty of protecting the child and is a party in the court proceedings, may reasonably not be regarded by a parent as being able to approach the issue with objectivity. The question whether crucial material should be disclosed should therefore not be decided by the local authority, or the health authority responsible for the medical professional who conducted the interview.",
"82. The Government have submitted that there was nothing to stop the first applicant from applying to the High Court for disclosure of the interview at any point. The applicant responded that she had no reason to suspect that the interview disclosed an error of identification by the professionals or that it would make a difference to her position. The Court considers that the power of the High Court in its wardship jurisdiction to take decisions concerning the welfare of the child in local authority care is an important safeguard of the interests of parent and child. However, this is not an instance where it should be the sole responsibility of the parent, or lie at his or her initiative, to obtain the evidence on which a decision to remove their child is based. The positive obligation on the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by the parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.",
"83. The Court concludes that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the first applicant an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority’s failure to submit the issue to the court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 oF THE CONVENTION",
"84. The applicants complained that they had been denied access to court in determination of their claims of negligence against the local authority, invoking Article 6 which provides as relevant in its first paragraph:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”",
"85. The Government denied that there was any civil right in issue in the case or any restriction on access. The Commission found by 10 votes to 9 that there had been a violation of Article 6 in respect of the second applicant on the basis that the House of Lords had applied an exclusionary rule concerning the liability of local authorities in child care matters which constituted in the circumstances a disproportionate restriction on her access to court. It found by 18 votes to 1 that there had been no breach of Article 6 in respect of the first applicant, whose claims were found to have been dismissed without recourse to any exclusionary rule.",
"A. The parties’ submissions",
"1. The applicants",
"86. The applicants submitted that their negligence claim was plainly arguable as a matter of domestic law, relying inter alia on the Osman case (Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII). Negligence was a tort of general application and there was no prior authority excluding the courts’ jurisdiction to hold a local authority liable in the performance of its statutory powers to remove children into care. There was a strong argument that public policy considerations required that a duty of care be imposed and there was no prior decision excluding liability. The applicants also pointed to the fact that the Legal Aid Board granted legal aid to pursue the claims to the House of Lords; that the Court of Appeal granted leave to appeal to the House of Lords, the precondition for such leave being that the claim was arguable in domestic law; that the Master of the Rolls, in the Court of Appeal, found that a duty of care could arguably arise; and that in previous cases, local authorities had paid settlements in negligence cases, on the basis that they were potentially liable. There was a serious dispute in domestic law therefore as to the existence of any exclusionary principle, which has continued since and Article 6 was applicable. They denied that their claims had been restricted to asserting that the local authority and health authority were vicariously liable for the negligence of their employees, Mr P. and Dr V., referring to their written pleadings as covering wider grounds of liability.",
"87. In the applicants’ view therefore, the exclusionary rule applied by the House of Lords permitted the applicants’ claims to be struck out without determining the facts and without a trial. This applied regardless of the merits or the seriousness of the harm suffered. Designed to protect local authorities’ from wasting resources on having to defend an action at all, this amounted in practical effect to immunity and acted as a restriction on access to court.",
"88. The application of a blanket rule which excluded the determination of the applicants’ claims irrespective of the seriousness of the harm suffered, the nature and extent of negligence involved, or the fundamental rights which were at stake, constituted a disproportionate restriction on their right of access to court. They emphasised the severity of the damage suffered by them against which the public policy arguments against imposition of liability had little weight, namely, the alleged risk of frivolous litigation, the increased cautiousness of social services in fulfilling their functions or the difficulty or the sensitivity of the issues. They referred to the Court’s finding in the Osman case, that the domestic courts should be able to distinguish between degrees of negligence or harm and give consideration to the justice of a particular case (cited above, § 151). An exclusionary rule on that basis should be capable of yielding to competing human rights considerations on the facts of a particular case.",
"2. The Government",
"89. The Government submitted that Article 6 guaranteed a fair trial in the determination only of such civil rights and obligations as are (at least arguably) recognised at national law. It does not bear on the substantive question of whether a right to compensatory damages exists in any given situation. The proceedings brought by the applicants established that no right existed. The decision to strike out their claim was a decision as to the scope of the domestic law. By ruling that a right of action did not exist in a particular set of circumstances, the courts were applying substantive limits to tort liability, as the legislature might do in statute (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 16, § 36). There was no established cause of action which was restricted. Accordingly, Article 6 § 1 was not applicable.",
"90. The Government argued in the alternative that there was no immunity applied which could be regarded as a restriction on access to court. The applicants’ claims, relying on the alleged vicarious liability of the local authority, had been dismissed on grounds of lack of proximity. There could in their view be no doubt that the dispute was subject to a fair and public hearing in compliance with the guarantees of Article 6. The striking out procedure was an important way of securing the speedy and cost-effective determination of cases that were hopeless in law. It achieved those aims without inhibiting claimants’ rights to present any arguments to a court in their favour. Thus, as factual matters were assumed to be those pleaded, the claimants were not prejudiced by the lack of hearing of evidence, while they could put forward any arguments in their favour to persuade the court that their claim was sustainable as a matter of law.",
"91. Assuming that their arguments on the above failed, the Government argued that any restriction on access to court was nonetheless in pursuit of a legitimate aim and proportionate. It aimed to preserve the efficiency of a vital sector of public service. The exclusion of liability was strictly limited in scope to the category of cases to which it applied, actions for misfeasance, vicarious liability for employees remaining unaffected. The domestic courts had themselves weighed up the public policy issues for and against liability in light of the principles of English tort law and the social and political philosophy underlying those principles. A very substantial margin of appreciation would therefore be appropriate in any international adjudication.",
"B. The Court’s assessment",
"1. Applicability of Article 6 of the Convention",
"92. The Court recalls its constant case-law to the effect that “Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, § 81; the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301, p. 37, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).",
"93. In the present case, the applicants were claiming damages on the basis of alleged breach of statutory duty and negligence, a tort in English law which is largely developed through the case-law of the domestic courts.",
"94. The Court is satisfied that at the outset of the proceedings there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence, as shown inter alia by the grant of legal aid to the applicants and the decision of the Court of Appeal that their claims merited leave to appeal to the House of Lords. The Government’s submission that there was no arguable (civil) ‘right’ for the purposes of Article 6 once the House of Lords had ruled that no duty of care arose has relevance rather to any claims which were lodged or pursued subsequently by other plaintiffs. The House of Lords’ decision did not remove, retrospectively, the arguability of the applicants’ claims (see the Le Calvez v. France judgment of 25 July 1998, Reports 1998-V, § 56). In such circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law.",
"95. Article 6 was therefore applicable to the proceedings brought by these applicants alleging negligence by the local authority. The Court must therefore examine whether the requirements of Article 6 were complied with in those proceedings.",
"2. Compliance with Article 6 of the Convention",
"96. The Court, in the Golder case, held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and expeditiousness, would be meaningless if there was not protection of the pre-condition for enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).",
"97. Article 6 § 1 “may ... be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, § 44). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” (see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, § 81; see also the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, § 40).",
"98. The right is not however absolute. It may be subject to legitimate restrictions, for example, statutory time-limits or prescription periods, security for costs orders, regulations concerning minors and persons of unsound mind (see, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52; the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; the Golder judgment, cited above, p. 19, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise.",
"99. It is claimed by the applicants in this case that the decision of the House of Lords, finding that the local authority owed no duty of care, deprived them of access to court as it was effectively an exclusionary rule, or immunity from liability, which prevented their claims being decided on the facts.",
"100. The Court observes, firstly, that the applicants were not prevented in any practical manner from bringing their claims before the domestic courts. Indeed, the case was litigated with vigour up to the House of Lords, the applicants being provided with legal aid for that purpose. Nor is it the case that any procedural rules or limitation periods were invoked. The domestic courts were concerned with the application brought by the defendants to have the case struck out as disclosing no reasonable cause of action. This involved the pre-trial determination of whether, assuming the facts of the applicants’ case as pleaded were true, there was a sustainable claim in law. The arguments before the courts were therefore concentrated on the legal issues.",
"101. Nor is the Court persuaded that the applicants’ claims were rejected due to the application of an exclusionary rule. The decision of the House of Lords found, applying ordinary principles of negligence law, that the local authority could not be held vicariously liable for any alleged negligence of the doctor and social worker. Lord Browne-Wilkinson noted that the applicants had not argued any direct duty of care was owed to them by the local authority (see paragraph 36 above). It cannot therefore be maintained that the applicants’ claims were rejected on the basis that it was not fair, just and reasonable to impose a duty of care on the local authority in the exercise of its child care functions. The applicants have submitted that this ground was included in their original statement of claim and in the written pleadings on appeal. Since however this ground was not in fact relied upon in the proceedings conducted before the House of Lords, the Court cannot speculate as to the basis on which the claims might have been rejected if they had been so formulated and argued.",
"102. The decision of the House of Lords did end the case, without the factual matters being determined on the evidence. However, if as a matter of law, there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process which would not have provided the applicants with any remedy at its conclusion. There is no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the plaintiff is generally able to submit to the court the arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure (see paragraphs 54 to 56 above).",
"103. The applicants may not claim therefore that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 § 1 of the Convention (see paragraphs 92 to 95 above), the applicants could no longer claim any entitlement under Article 6 § 1 to obtain any hearing concerning the facts. There was no denial of access to court and, accordingly, no violation of Article 6 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 oF THE CONVENTION",
"104. The applicants complained that they had not been afforded any remedy for the damage which they had suffered as a result of the interference by the local authority in their family life, invoking Article 13 of the Convention which provides:",
"“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"105. The applicants submitted that the rejection of their claims by the House of Lords deprived them of any effective remedy within the national legal system for the violation of Article 8 which they suffered. While the remedy required by Article 13 need not always be judicial in character, in their case a judicial determination was required. This was because the tort of negligence was the only remedy in national law capable of determining the substance of their complaint and which (but for the alleged immunity) would closely match the requirements of the Convention. Also the accountability of public officials, central to both Articles 8 and 13, required a right of access to court whereby the individual could hold the responsible officials to account in adversarial proceedings and obtain an enforceable order for compensation if the claim was substantiated. The wording of Article 13 also prohibited the creation of immunities for public officials and any such immunity must be regarded as contrary to the object and purpose of the Convention.",
"106. The Government which disputed that Article 8 had been violated submitted that there was no arguable claim of a violation for the purposes of engaging Article 13. If contrary to that submission there was an arguable breach, they submitted that Contracting States were afforded a measure of discretion as to the manner in which they conformed with their obligation to provide an effective remedy. They argued that the court in the wardship proceedings was amply equipped to deal with the substance of the Article 8 complaint which was the separation of the first and second applicants, and did in fact deal with the matter without delay when brought to its attention. In their view, this was not a case where pecuniary compensation was a necessary remedy. The harm suffered by the separation of mother and child was by its nature likely to be irremediable in terms of damages. There were in any event a number of remedies available to the applicants which should be taken into account. The applicants had the possibility of complaining to the Local Government Ombudsman who had power to investigate alleged maladministration and recommend an appropriate remedy, including the payment of compensation. There was also a statutory complaints procedure under the section 76 of the Child Care Act 1980, by which the Secretary of State could hold an inquiry into a local authority’s exercise of its child care functions.",
"107. As the Court has stated on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. (see, amongst other authorities, the Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, pp. 1985-86, § 103).",
"The Court considers that, where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress.",
"108. The applicants have argued that in their case an effective remedy could only be provided by adversarial court proceedings against the public body responsible for the breach with the possibility of obtaining damages. The Government have countered with the argument that the High Court was able to provide adequate redress for the essence of the applicants’ complaints by exercising its wardship jurisdiction to bring their separation to an end and that pecuniary compensation is not necessary. The Court recalls that it has found a breach of Article 8 in respect of the procedures following the taking into care of the second applicant. In particular, it found that the issue of disclosure of the video of the interview, and its transcript, should have been dealt with promptly to allow the first applicant the effective opportunity of meeting the allegations that her daughter could not be safely returned to her care. In these circumstances, the exercise of the court’s powers to return the child almost a year later was not an effective remedy. It did not provide redress for the psychological damage allegedly flowing from the separation over this period.",
"109. The Court considers that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for the damage which they suffered and obtaining compensation for that damage. It does not agree with the Government that pecuniary compensation would not provide redress. If, as is alleged, psychiatric damage occurred, there may have been elements of medical costs as well as significant pain and suffering to be addressed. The Court does not consider it appropriate in this case to make any findings as to whether only court proceedings could have furnished effective redress, though judicial remedies indeed furnish strong guarantees of independence, access to the victim and family and enforceability of awards in compliance with the requirements of Article 13 (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, § 67). The possibility of applying to the ombudsman and to the Secretary of State did not however provide the applicants with any enforceable right to compensation.",
"110. The Court finds that in this case the applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect for family life and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy and there has, accordingly, been a violation of Article 13 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"111. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damages",
"112. The applicants claimed a just and equitable sum in non-pecuniary loss to reflect the damage caused by the removal of the second applicant from the first applicant for a year. This had physical and psychiatric consequences, including the trauma of separation and the anxiety, insecurity and uncertainty suffered during the separation. On her return home, the second applicant experienced a transient emotional disturbance, consisting mainly of manifestations of anxiety through a range of symptomatic behaviours. In a report of 21 February 1991, Dr B commented that the second applicant had settled back into domestic routine and that though she was not manifesting any particular anxiety at that time, she might yet undergo delayed emotional reactions to this most disruptive period of her life both in relation to the abuse and the unnecessary enforced separation. As regarded the first applicant, he commented on the anxiety, depression and despair which she suffered due to events, involving inability to sleep, proneness to emotional breakdown, intense anxiety, guilt loss of appetite and weight loss. Though she had become more settled and confident after her daughter’s return, she still carried a very bitter anger towards the local authority and Dr V.",
"113. As they had been victims of an exceptionally serious breach of Article 8, spanning a year, the applicants submitted that a substantial award of compensation was appropriate. It should also reflect the domestic damage scales which would have been applicable to them if they had succeeded in their negligence claims, namely, for the first applicant a sum of 15,000 pounds sterling (GBP) to 30,000 and for the second applicant GBP 25,000 to 35,000. In addition they claimed a sum of GBP 10,000 each in respect of the delay in obtaining either access to court or an effective remedy for their grievances, plus interest on those sums from 1990.",
"114. The Government disputed that there was any clear case of negligence made out and considered that, as noted by the domestic courts, there was the gravest doubt that the second applicant’s claims against the Dr V could have been established on the facts. They maintained that separation had been, at least initially, justified by the abuse to which the second applicant had been victim. The psychiatric reports relied on by the applicants were over nine years old and there was no indication that physical or psychiatric treatment was required by either applicant. They disputed that national scales of assessment should be taken into account and in any event the applicants’ problems would have fallen into a category of minor seriousness. In their submission, a finding of a violation constituted in the circumstances of this case just satisfaction.",
"115. The Court recalls that the applicants were re-united after a year’s separation (see paragraph 29 above). Though it cannot be asserted that they would have been reunited earlier if the video had been available at the initial stage of the procedure, it cannot be excluded either that it might have reduced the duration of their separation. They thereby suffered a loss of opportunity. In addition, the applicants certainly suffered non-pecuniary damage through distress and anxiety and in the case of the first applicant through feelings of frustration and injustice.",
"116. The Court thus concludes that the applicants sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention (see, for example, Elsholz v. Germany [GC], no. 25735/94, §§ 70-71, ECHR 2000-VIII).",
"117. Making an assessment on an equitable basis, it awards the sum of GBP 10,000 each to the applicants.",
"B. Costs and expenses",
"118. The applicants claimed a total of GBP 37,046.60, inclusive of value-added tax (VAT). This included GBP 12,398.55 for the applicants’ solicitors, GBP 16,520.55 for their counsel and GBP 8,127.50 for Ms Nuala Mole, of the AIRE Centre who assisted counsel. Claim was made for 68.7 hours work by the solicitors, 134 hours for counsel and 59 hours for Ms Mole, in addition to time spent travelling and attending the hearings on admissibility before the Commission and on the merits before the Court.",
"119. The Government disputed that three sets of lawyers should have been involved. While they accepted the hourly rates claimed, they considered the total number of hours claimed by these lawyers to be excessive, particularly since they relied heavily on the submissions made in the case of Z. and Others v. the United Kingdom (no. 29392/95) heard by the Court at the same time. In their view, a sum of GBP 20,000 would be reasonable for costs and expenses.",
"120. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25.3.99, § 79). The Court observes that this case, and the case of Z. and Others v. the United Kingdom were heard together, both before the Commission and the Court. There was, as regarded the issues under Articles 6 and 13, a joint approach adopted and the observations were co-ordinated. It finds the sums claimed in those circumstances to be high and is not persuaded that they were necessarily incurred or are reasonable as to quantum.",
"121. In light of these matters, the Court awards the sum of GBP 25,000 for legal costs and expenses, inclusive of VAT.",
"C. Default interest",
"122. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum."
] |
90 | Kutzner v. Germany | 26 February 2002 | The applicants, a married couple, complained that the withdrawal of their parental authority in respect of their daughters and the placement of the latter in foster families, mainly on the grounds that the parents did not have the intellectual capacity to bring up their children, had breached their right to respect for their family life. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, whilst the reasons given by the national authorities and courts had been relevant, they had not been sufficient to justify such a serious interference with the applicants’ family life. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicants are German nationals who were born in 1966 and 1968 respectively and live at Badbergen ( Germany ). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993.",
"A. Background to the case",
"11. The applicants and their two daughters had lived since the girls' birth with Mr Kutzner's parents and his unmarried brother on an old farm. Mr Kutzner works on a poultry farm. Mrs Kutzner used to work in a factory, but since losing her job has stayed at home to look after the children and do the housework.",
"The applicants had attended a special school for people with learning difficulties ( Sonderschule fûr Lernbehinderte ).",
"12. Owing to their late physical and, above all, mental development, the girls underwent a series of medical examinations. On the advice of one of the doctors and at the applicants' request, they received educational assistance and support from a very early age. Thus, from 1994 Corinna, the elder daughter, received educational assistance ( Frühförderung ), while from 1995 and 1996 respectively, both girls attended a day-nursery school for children with special needs ( Heilpädagogischer Kindergarten ).",
"13. Between October 1995 and May 1996, Ms Klose, a social worker ( sozialpädagogische Familienhilfe ) visited the applicants' family at home, officially for ten hours a week. The applicants say that she actually spent only three hours there, as the time she spent travelling had to be taken into account. Relations between her and the applicants rapidly deteriorated, which the applicants say resulted in her preparing a very negative report on them.",
"14. Ms Klose's report to the Osnabrück District Youth Office ( Kreisjugendamt ) did indeed emphasise negative points: the applicants' intellectual shortcomings, conflictual relations between the family members and the contempt that, initially at least, she had been shown by the family.",
"15. Following that report the District Youth Office made an application on 13 September 1996 to the Bersenbrück Guardianship Court ( Vormundschaftsgericht ) for an order withdrawing the applicants' parental responsibility for their two children.",
"B. The proceedings withdrawing the applicants' parental responsibility",
"1. Proceedings in the Bersenbrück Guardianship Court",
"16. On 18 September 1996 the Bersenbrück Guardianship Court appointed Mr Waschke -Peter, a psychologist, to give expert evidence. He delivered his report on 20 November 1996.",
"17. On 12 February 1997, after hearing evidence from the applicants and the grandparents, the Guardianship Court made an interlocutory order ( einstweilige Anordnung ) withdrawing the applicants' rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ) or to take decisions regarding the children's health ( Recht zur Bestimmung über ärztliche Maßnahmen ), notably on the ground that “[the applicants did] not have the intellectual capacity required to bring up their children properly” (“ die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäss zu erziehen ”).",
"18. From February to July 1997 the girls were placed in the care of the assessment team ( Clearingstelle ) of a private association at Meppen ( Verein für familienorientierte Sozialpädagogik ), which was part of the Society for Family Education ( Gesellschaft für familienorientierte Sozialpädagogik ).",
"19. In a report dated 18 and 24 April 1997, the chairwoman of the executive board of the society, Ms Backhaus, also requested that the applicants' parental responsibility be withdrawn on the ground that, while the children's IQ was expected to decrease, a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence ( eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die Kinder durch eine neue Beelterung, in der über die Beziehung neue Impulse für die Sozial - und Intelligenzentwicklung gesetzt werden ).",
"20. On 27 May 1997, after hearing further evidence from the applicants and the grandparents, the Guardianship Court withdrew the applicants' parental rights ( Sorgerecht ) over their two children. It relied notably on the finding in the psychologist's report that the applicants were not fit to bring up their children, not through any fault of their own ( unverschuldet erziehungsunfähig ), but because they did not possess the requisite intellectual capacity.",
"The Guardianship Court found that the applicants lacked the necessary awareness to answer their children's needs. Moreover, they were opposed to receiving any support from social services and, far from being genuine, the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings.",
"The Guardianship Court added that the children's development was so retarded that it could not be corrected by the grandparents or support from social services. Only a foster home – and in Corinna's case this would have to be a professional foster home ( professionelle Pflegefamilie ) – could help the two children, as any less radical measures would be inadequate.",
"21. On 15 July 1997 the two girls were placed with separate, unidentified ( IncognitoPflege ) foster parents ( Pflegefamilien ) on the register held by the Society for Family Education, which had produced a report on 18 and 24 April 1997 requesting that the applicants' parental responsibility for their children be withdrawn.",
"22. In letters of 24 January, 23 June and 2 July 1997 the applicants' family doctors said that they considered that the children should be returned to the applicants' care.",
"2. Proceedings in the Osnabrück Regional Court",
"23. In June 1997 the applicants appealed to the Osnabrück Regional Court ( Landgericht ) against the Guardianship Court 's decision of 27 May 1997.",
"24. From 2 September to 25 November 1997 Mrs Kutzner attended a course to qualify as a childminder ( Qualifizierungskurs für Tagesmütter ); she completed the course and received a certificate.",
"25. On 29 August 1997 an expert in psychology from the German Association for the Protection of Children ( Deutscher Kinderschutzbund ), a private organisation from which the applicants had sought help, also expressed the view that the children should be returned to their family and receive extra educational support from social services.",
"26. After these views had been expressed, the Regional Court appointed Mr Trennheuser as a second expert witness in psychology on 9 October 1997. He delivered his report on 18 December 1997. The Regional Court also heard evidence from the applicants, the grandparents, the relevant authority and the expert witness.",
"27. By a decision of 29 January 1998 the Regional Court dismissed the applicants' appeal on the ground that the relevant provisions of the Civil Code (Articles 1666 and 1666a – see “Relevant domestic law” below) governing the protection of children's interests were satisfied.",
"The Regional Court referred to the two reports by the experts in psychology.",
"According to the first report, which had been lodged with the Bersenbrück Guardianship Court on 20 November 1996, the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth. Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants' sense of insecurity. The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children. Moreover, the grandparents, who were incapable of offering support to their own children (the applicants), were no more capable of remedying the intellectual deficiencies presented by their grandchildren.",
"According to the second expert report – the one delivered on 18 December 1997 – the girls were approximately one year behind in their general development, a factor that was discernible in particular from their speech, which consisted of stammering. Had they not benefited from years of support from the educational and social services, they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life. The applicants were incapable of helping their daughters to develop their personalities, as they were ill-equipped to understand them or to treat them in an appropriate manner. Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children. In particular, the knowledge and skills acquired at school were in danger of being stifled in the family environment. The applicants had done no more than to tend to the children's basic needs. There was a risk that in the future the parents would become increasingly aggressive towards their children. Regard being had to all those considerations, separating the children from the family was the only way of eliminating all danger to the children's welfare ( Gefährdung des Kindeswohls ).",
"The Regional Court noted that the expert witnesses had reached the same conclusion following a thorough analysis. The second expert witness had had due regard to the fact that the applicants had contacted the German Association for the Protection of Children and that Mrs Kutzner had attended a childminding course. However, those factors were not sufficient to enable the Regional Court to rule out all risk of the children's development being harmed.",
"3. Proceedings in the Oldenburg Court of Appeal",
"28. On 20 March 1998 the Oldenburg Court of Appeal ( Oberlandesgericht ) dismissed the applicants' appeal, holding that there had been no breach of the law. The courts concerned had heard representations from the parties, relied on reports by two expert witnesses and had taken into account the educational assistance measures that had already been implemented, the expert psychological report lodged by the German Association for the Protection of Children on behalf of the applicants and the opinion of the family doctors.",
"4. Proceedings in the Federal Constitutional Court",
"29. On 26 May 1998 a three-member committee of the Federal Constitutional Court ( Bundesverfassungsgericht ) dismissed an appeal by the applicants.",
"5. Expert evidence furnished on behalf of the applicants at the request of the Association for the Protection of the Rights of the Child",
"30. On 29 May 1998 Mr Riedl, a professor of educational sciences and Director of the Educational Sciences Institute at the University of Schwäbisch-Gmünd, lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children's welfare was not in danger and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. He said in particular that the family provided a successful example of cohabitation between three generations that was desired, planned and well-organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment (“ die Familie Kutzner bietet somit ein geglücktes Beispiel für das gewollte, geplante und wohlorganisierte Zusammenleben dreier Generationen in geordneten wirtschaftlichen Verhältnissen und unter positiven individuellen Bedingungen ”). He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school.",
"31. On 17 November 1999, also at the request of that association, Mr Giese, a professor of law at the Tübingen Institute for the Assessment of Physical and Mental Damage ( Institut für Medizinschaden ), produced a further expert report on behalf of the applicants, in which he concluded that the procedure followed by the German courts in the instant case had contravened Articles 6 and 8 of the Convention.",
"C. Restrictions on the applicants' visiting rights",
"32. As the children had been placed in unidentified foster homes, the applicants were unable to see them for the first six months.",
"33. They then made an application to the Osnabrück Regional Court, which on 4 December 1997 granted them visiting rights of one hour a month despite opposition from the Youth Office.",
"34. Contrary to what had been ordered by the Guardianship Court, visits were conducted in the presence of eight representatives from various social services departments and associations. Subsequently, their number decreased, but the Youth Office insisted on visits being accompanied ( begleitetes Besuchsrecht ).",
"35. Between July and November 1999 the applicants made various attempts to obtain permission to see their children at Christmas or at the start of their eldest daughter's school year, but the Youth Office refused. The applicants applied to the Bersenbrück Guardianship Court and were granted permission to see their eldest daughter at the beginning of the school year.",
"36. On 8 December 1999 the applicants made a fresh application to the Guardianship Court seeking the right to visit their children for two hours at Christmas.",
"37. On 21 December 1999 the Guardianship Court dismissed their application. It sought a further report from another psychologist, Ms Sperschneider, in order to establish to what extent and to whom further visiting rights should be granted.",
"38. Additional information supplied by the parties after the Court had delivered its admissibility decision (see paragraph 8 above) indicates that in her report of 12 May 2000 Ms Sperschneider recommended that the applicants' visiting rights should be increased to two hours a month and that the grandparents should also be permitted to take part in visits once every two months.",
"39. By an order of 9 October 2000 the Guardianship Court requested the parties to indicate whether they accepted the psychologist's proposal.",
"40. In a letter of 2 November 2000 the Youth Office said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist.",
"41. In a letter of 14 March 2001 the applicants asked the Guardianship Court to issue a decision on the merits.",
"42. In a decision of 16 March 2001 the Guardianship Court took formal note that an agreement had been reached between the parties concerning the applicants' rights to visit their children and held that it was unnecessary to determine the merits of the case.",
"D. The applicants' request for the appointment of a new guardian",
"43. In a letter of 29 January 2001 the applicants asked Mr Seifert, who as the Osnabrück Youth Office representative acted as the children's guardian, to meet them in order to discuss various issues such as the children's physical and psychological development, arrangements for visiting rights, and a christening ceremony that had been arranged in their home village.",
"44. Mr Seifert declined such a meeting in a letter of 22 February 2001, saying that the applicants could observe their children's progress for themselves during visits.",
"45. On 4 March 2001 the applicants wrote to the Bersenbrück Guardianship Court requesting it to terminate the Osnabrück Youth Office's appointment as guardian and to name an independent expert in its place.",
"46. In a letter of 26 April 2001 Mr Seifert rejected the criticism directed at him by the applicants.",
"47. In a reply of 17 May 2001 the applicants said that the Youth Office had systematically sought to separate them from their children for good, whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin. They added that if the experts considered that contact of one or two hours a month under strict supervision was sufficient, then the expert evidence was of little value. Lastly, Ms Sperschneider had spent in all only two hours with the applicants and had shown no interest in what they really thought.",
"48. In a letter of 12 July 2001 a court clerk ( Rechtspfleger ) replied to the applicants, informing them that the Guardianship Court had rejected their application."
] | [
"II. RELEVANT DOMESTIC LAW",
"49. Article 1666 of the Civil Code ( Bürgerliches Gesetzbuch ) lays down that the guardianship courts are under an obligation to order necessary measures if a child's welfare is jeopardised ( Gefährdung des Kindeswohls ).",
"50. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare.",
"51. The second sub-paragraph of Article 1666a provides:",
"“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"52. The applicants alleged that the withdrawal of their parental responsibility for their two daughters had infringed their right to respect for their family life, as guaranteed by Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"53. The Government asserted that the interference in issue was based on Articles 1666 and 1666a of the Civil Code and was necessary for the children's physical and psychological welfare. They said that, after hearing representations from the parties and seeking the opinion of two experts in psychology, the domestic courts had concluded that the applicants' interest in maintaining family life had to yield to the interest of ensuring the children's welfare, as the children's development had been found to have become so retarded that, partly as a result of a lack of cooperation between the applicants and the social services, less radical educational assistance measures had proved insufficient in the past. Indeed, the experts had reached identical conclusions, but had simply stressed different aspects of the problem, something that was not uncommon in such cases and was also explained by the fact that their reports had been prepared at different stages of the proceedings. Furthermore, it had not been possible to take Mr Riedl's report on behalf of the applicants into account, as it had not been lodged until 28 May 1998, that is to say two days after the Federal Constitutional Court had delivered its decision. In any event, that report had been prepared privately and could not be used to challenge the conclusions of the first two experts. Lastly, the Government stressed that there had not been a total severance of contact between the applicants and their children and that there was also contact between the girls' respective foster parents. In conclusion, the dispute concerning the applicants' visiting rights was now settled, as the applicants had accepted Ms Sperschneider's proposals on that subject and were in fact visiting their children in accordance with the suggested arrangements.",
"54. The applicants questioned the need for the interference and criticised certain aspects of the expert reports commissioned by the domestic courts. In their submission, those reports were neither reliable nor credible, as they proffered entirely different reasons as proof that the children's welfare was in jeopardy. In the first report, the expert had referred to emotional deficiencies in the relationship between the applicants and their daughters, whereas the second expert had laid the emphasis on the parents' intellectual shortcomings. They found it intolerable to be criticised for their low intellectual level, as, if such criteria were to be applied, approximately 30% of parents in Germany would have their parental responsibility for their children withdrawn. The applicants also complained that the experts had failed to examine in detail, as they were required to do by the relevant provisions of civil law, whether alternative measures could be taken, such as appointing another social worker to assist the family, that would obviate the need for parental responsibility to be withdrawn altogether. They stressed that the effects of being separated from their parents had been dramatic for the children and that the children were suffering from “parental alienation” syndrome, a condition recognised by the international scientific community. Lastly, they expressed their disapproval of the decision of the Osnabrück Youth Office to place the children in separate unidentified homes and of its insistence on doing everything possible to keep contact between them and their children to a strict minimum, without seeking to offer support to the family of origin, despite the obligation imposed on them to do so by the Law governing support for children and adolescents ( Kinder- und Jugendhilfegesetz ). They submitted that the unsatisfactory restrictions on their visiting rights were causing the children to become increasingly alienated ( Entfremdung ) from their family of origin and risked causing irreparable damage to the parent-child relationship.",
"55. The applicants also complained that they been denied a fair trial, as the domestic courts had relied exclusively on the findings of the District Youth Office, the Society for Family Education and the official expert witnesses, without having regard to the reports of the experts called on behalf of the applicants, Mr Riedl and Mr Giese. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"56. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, among other authorities, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I).",
"57. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint.",
"A. Whether there has been an interference",
"58. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see, among other authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987, Series A no. 121, respectively, p. 27, § 59, pp. 71-72, § 60, and p. 117, § 64; Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 29, § 59; Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 58; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 72; Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 50; McMichael, cited above, p. 55, § 86; Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1001-02, § 52; Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1489, § 51; Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI; Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX; and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII).",
"59. There is therefore no doubt – and the Government do not contest – that the measures concerned in the present case (the children's continued placement in foster homes and the restrictions imposed on contact between the applicants and their children) amounts to an “interference” with the applicants' rights to respect for their family life.",
"B. Whether the interference is justified",
"60. An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Gnahoré, cited above, § 50 in fine ).",
"61. Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see, among other authorities: Eriksson, cited above, pp. 26-27, § 71; Margareta and Roger Andersson, cited above, p. 30, § 91; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide, cited above, § 94; and Gnahoré, cited above, § 51).",
"62. The boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, W., B. and R. v. the United Kingdom, cited above, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and Gnahoré, cited above, § 52).",
"1. “In accordance with the law”",
"63. The interference in issue was indisputably based on Articles 1666 and 1666a of the Civil Code.",
"2. Legitimate aims",
"64. The Court considers that there is no doubt that the measures in issue were intended to protect “health or morals” and the “rights and freedoms” of the children.",
"3. “Necessary in a democratic society”",
"65. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Olsson (no. 1), cited above, p. 32, § 68; Johansen, cited above, pp. 1003-04, § 64; Olsson (no. 2), cited above, p. 34, § 87; Bronda, cited above, p. 1491, § 59; Gnahoré, cited above, § 54; and K and T. v. Finland, cited above, § 154). It will also have regard to the obligation which the State has in principle to enable the ties between parents and their children to be preserved.",
"66. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ( Olsson (no. 2), cited above, pp. 35 ‑ 36, § 90), often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Johansen, cited above, pp. 1003-04, § 64; K. and T. v. Finland, cited above, § 154).",
"67. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. When a considerable period of time has passed since the child was first placed in care, the child's interest in not undergoing further de facto changes to its family situation may prevail over the parents' interest in seeing the family reunited. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Johansen, cited above, pp. 1003-04, § 64).",
"68. The Court notes that in the instant case, by a judgment of 27 May 1997, the Bersenbrück Guardianship Court withdrew the applicants' parental responsibility for their two daughters, Corinna and Nicola, who were born in 1991 and 1993 respectively, and ordered their placement with foster parents, notably on the ground that the applicants did not have the requisite intellectual capacity to bring up their children. The Guardianship Court also noted that the children were considerably behind in their emotional and physical development and that the applicants had failed to cooperate with social services.",
"In a judgment of 29 January 1998 the Osnabrück Regional Court, relying on two reports by expert witnesses, the first of whom stressed the applicants' intellectual deficiencies and the second their lack of emotional support, upheld the Guardianship Court's order placing the children with foster parents.",
"69. The Court begins by noting that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8 of the Convention to enjoy a family life with their child ( K. and T. v. Finland, cited above, § 173).",
"70. The Court recognises that in the instant case the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments and psychologists. However, it considers that both the care order itself and, above all, the manner in which it was implemented were unsatisfactory.",
"71. It appears that the children benefited from an early age and, indeed, at the applicants' request, from educational support and that the situation became acrimonious as a result notably of a conflict between the applicants and a social worker, Ms Klose, who submitted a very negative report to the Osnabrück Youth Office.",
"72. Moreover, the opinions of the psychologists, from whom expert evidence was taken at various stages of the proceedings by the domestic courts, were contradictory, if not in their conclusions then at least as regards the reasons relied on (one psychologist referred to the parents' lack of intellectual capacity while the other referred to emotional underdevelopment that made them incapable of contributing to the development of the children's personalities).",
"73. Moreover, both of the other psychologists, who had been retained as expert witnesses by the German Association for the Protection of Children and the Association for the Protection of the Rights of the Child, and the family doctors urged that the children be returned to their family of origin. They emphasised in particular that the children's welfare was not in jeopardy and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. They said that the children should be given additional educational support. Those conclusions could not be disregarded simply because they emanated from people who were acting on behalf of one of the parties to the proceedings (see paragraph 53 above).",
"74. Lastly, unlike the position in other cases of the same type that have come before the Court, there have been no allegations that the children have been neglected or ill-treated by the applicants.",
"75. Accordingly, although the educational-support measures taken initially subsequently proved to be inadequate, it is questionable whether the domestic administrative and judicial authorities have given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents.",
"76. The Court further reiterates that a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( Olsson (no. 1), cited above, pp. 36-37, § 81). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child ( K. and T. v. Finland, cited above, § 178).",
"77. However, in the instant case, not only have the children been separated from their family of origin, they have also been placed in separate, unidentified, foster homes and all contact with their parents was severed for the first six months. In addition, the children themselves have at no stage been heard by the judges.",
"78. Furthermore, the evidence in the case file shows that the applicants were only granted visiting rights after making an application to the court, and visits were in practice systematically obstructed by the Bersenbrück Youth Office, initially being restricted to one hour a month in the presence of eight people who were not members of the family before being increased to two hours a month (with the grandparents being authorised to visit once every two months) by a decision of the Osnabrück Guardianship Court on 9 October 2000.",
"79. Having regard to the fact that the children were very young, severing contact in that way and imposing such restrictions on visiting rights could, in the Court's opinion, only lead to the children's increased “alienation” ( Entfremdung ) from their parents and from each other.",
"80. Nor can the issue be regarded as having been resolved, as the applicants have consistently contested not only their children's placement with the foster parents, but also the restrictions imposed on their visiting rights and in practice it would be unfair to criticise them for making use of the arrangements proposed by the domestic courts to at least gain an opportunity to see their children.",
"81. Having regard to all these considerations, the Court finds that although the reasons relied on by the domestic authorities and courts were relevant, they were insufficient to justify such a serious interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aims pursued.",
"82. Consequently, there has been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"83. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"84. The applicants maintained that the withdrawal of their parental responsibility for their two daughters had caused them pecuniary damage, which they calculated as follows:",
"(i) 25,700 marks (DEM) in family benefit which they no longer received owing to the fact that the children had been placed in foster homes;",
"(ii) DEM 1,488, being the sums which the Youth Office had allegedly seized on their account as a financial contribution towards the children's needs in their new homes (however, proceedings were still pending as the applicants had contested the attachment order);",
"(iii) DEM 18,000 for delays in the building of their house;",
"(iv) DEM 110,448 for loss of earnings by Mr Kutzner, who had been unable to carry on working owing to the dramatic psychological and physical effects of being separated from her children;",
"(v) DEM 35,895 for loss of earnings by Mrs Kutzner's mother, who had likewise been prevented from working as a result of the effects of the family situation on her health.",
"85. The applicants also alleged that they had sustained substantial non-pecuniary damage, their physical and psychological health having suffered as a result of their separation from their children, their children's separation from each other and the restrictions on their visiting rights. They left the issue of quantum to the Court's discretion.",
"86. The Government expressed no view on the matter.",
"87. The Court considered that the alleged pecuniary damage was either unsupported by evidence or had not been caused by the violation that had been found. However, it found that the applicants had undeniably sustained non-pecuniary damage as a result of being separated from their two daughters and the restrictions on their visiting rights. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, it awards them compensation of 15,000 euros (EUR) jointly.",
"B. Costs and expenses",
"88. The applicants' claim for costs and expenses was broken down as follows:",
"(i) DEM 8,392 for lawyers' fees before the domestic courts;",
"(ii) DEM 9,602.20 for expert witnesses' fees;",
"(iii) DEM 7,674.60 for the fees of the Association for the Protection of the Rights of the Child, which had also represented the applicants before the domestic courts and the Court;",
"(iv) DEM 1,220 for the expenses incurred by the Association for the Protection of the Rights of the Child.",
"89. The Government did not raise any objections to the claims.",
"90. According to its settled case-law, the Court will award costs and expenses only in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Pammel v. Germany, judgment of 1 July 1997, Reports 1997-IV, p. 1114, § 82). With regard to lawyers' fees, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them.",
"Ruling on an equitable basis, the Court decides to award the applicants jointly the sum of EUR 8,000, from which EUR 350.63 which they have already received in legal aid must be deducted.",
"C. Default interest",
"91. According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 7.57% per annum."
] |
91 | Kutzner v. Germany | 26 February 2002 | The applicants, husband and wife, and their two daughters had lived since the children’s birth with the first applicant’s parents and an unmarried brother in an old farmhouse. The applicants had attended a special school for people with learning difficulties. Owing to their late physical and, more particularly, mental development, the girls were examined on a number of occasions by doctors. On the advice of one of the doctors and on application by the applicants, the girls had received educational assistance and support from a very early age. The applicants complained that the withdrawal of their parental authority in respect of their daughters and the placement of the latter in foster families, mainly on the grounds that they did not have the intellectual capacity to bring up their children, had breached their right to respect for their family life. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It recognised that the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments concerned and the psychologists. However, it found that both the order for placement in itself and, above all, its implementation had been unsatisfactory. In the instant case, the Court considered that although the reasons relied on by the administrative and judicial authorities had been relevant, they had not been sufficient to justify such a serious interference in the applicants’ family life. Notwithstanding the domestic authorities’ margin of appreciation, the interference had therefore not been proportionate to the legitimate aims pursued. | Persons with disabilities and the European Convention on Human Rights | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicants are German nationals who were born in 1966 and 1968 respectively and live at Badbergen ( Germany ). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993.",
"A. Background to the case",
"11. The applicants and their two daughters had lived since the girls' birth with Mr Kutzner's parents and his unmarried brother on an old farm. Mr Kutzner works on a poultry farm. Mrs Kutzner used to work in a factory, but since losing her job has stayed at home to look after the children and do the housework.",
"The applicants had attended a special school for people with learning difficulties ( Sonderschule fûr Lernbehinderte ).",
"12. Owing to their late physical and, above all, mental development, the girls underwent a series of medical examinations. On the advice of one of the doctors and at the applicants' request, they received educational assistance and support from a very early age. Thus, from 1994 Corinna, the elder daughter, received educational assistance ( Frühförderung ), while from 1995 and 1996 respectively, both girls attended a day-nursery school for children with special needs ( Heilpädagogischer Kindergarten ).",
"13. Between October 1995 and May 1996, Ms Klose, a social worker ( sozialpädagogische Familienhilfe ) visited the applicants' family at home, officially for ten hours a week. The applicants say that she actually spent only three hours there, as the time she spent travelling had to be taken into account. Relations between her and the applicants rapidly deteriorated, which the applicants say resulted in her preparing a very negative report on them.",
"14. Ms Klose's report to the Osnabrück District Youth Office ( Kreisjugendamt ) did indeed emphasise negative points: the applicants' intellectual shortcomings, conflictual relations between the family members and the contempt that, initially at least, she had been shown by the family.",
"15. Following that report the District Youth Office made an application on 13 September 1996 to the Bersenbrück Guardianship Court ( Vormundschaftsgericht ) for an order withdrawing the applicants' parental responsibility for their two children.",
"B. The proceedings withdrawing the applicants' parental responsibility",
"1. Proceedings in the Bersenbrück Guardianship Court",
"16. On 18 September 1996 the Bersenbrück Guardianship Court appointed Mr Waschke -Peter, a psychologist, to give expert evidence. He delivered his report on 20 November 1996.",
"17. On 12 February 1997, after hearing evidence from the applicants and the grandparents, the Guardianship Court made an interlocutory order ( einstweilige Anordnung ) withdrawing the applicants' rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ) or to take decisions regarding the children's health ( Recht zur Bestimmung über ärztliche Maßnahmen ), notably on the ground that “[the applicants did] not have the intellectual capacity required to bring up their children properly” (“ die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäss zu erziehen ”).",
"18. From February to July 1997 the girls were placed in the care of the assessment team ( Clearingstelle ) of a private association at Meppen ( Verein für familienorientierte Sozialpädagogik ), which was part of the Society for Family Education ( Gesellschaft für familienorientierte Sozialpädagogik ).",
"19. In a report dated 18 and 24 April 1997, the chairwoman of the executive board of the society, Ms Backhaus, also requested that the applicants' parental responsibility be withdrawn on the ground that, while the children's IQ was expected to decrease, a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence ( eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die Kinder durch eine neue Beelterung, in der über die Beziehung neue Impulse für die Sozial - und Intelligenzentwicklung gesetzt werden ).",
"20. On 27 May 1997, after hearing further evidence from the applicants and the grandparents, the Guardianship Court withdrew the applicants' parental rights ( Sorgerecht ) over their two children. It relied notably on the finding in the psychologist's report that the applicants were not fit to bring up their children, not through any fault of their own ( unverschuldet erziehungsunfähig ), but because they did not possess the requisite intellectual capacity.",
"The Guardianship Court found that the applicants lacked the necessary awareness to answer their children's needs. Moreover, they were opposed to receiving any support from social services and, far from being genuine, the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings.",
"The Guardianship Court added that the children's development was so retarded that it could not be corrected by the grandparents or support from social services. Only a foster home – and in Corinna's case this would have to be a professional foster home ( professionelle Pflegefamilie ) – could help the two children, as any less radical measures would be inadequate.",
"21. On 15 July 1997 the two girls were placed with separate, unidentified ( IncognitoPflege ) foster parents ( Pflegefamilien ) on the register held by the Society for Family Education, which had produced a report on 18 and 24 April 1997 requesting that the applicants' parental responsibility for their children be withdrawn.",
"22. In letters of 24 January, 23 June and 2 July 1997 the applicants' family doctors said that they considered that the children should be returned to the applicants' care.",
"2. Proceedings in the Osnabrück Regional Court",
"23. In June 1997 the applicants appealed to the Osnabrück Regional Court ( Landgericht ) against the Guardianship Court 's decision of 27 May 1997.",
"24. From 2 September to 25 November 1997 Mrs Kutzner attended a course to qualify as a childminder ( Qualifizierungskurs für Tagesmütter ); she completed the course and received a certificate.",
"25. On 29 August 1997 an expert in psychology from the German Association for the Protection of Children ( Deutscher Kinderschutzbund ), a private organisation from which the applicants had sought help, also expressed the view that the children should be returned to their family and receive extra educational support from social services.",
"26. After these views had been expressed, the Regional Court appointed Mr Trennheuser as a second expert witness in psychology on 9 October 1997. He delivered his report on 18 December 1997. The Regional Court also heard evidence from the applicants, the grandparents, the relevant authority and the expert witness.",
"27. By a decision of 29 January 1998 the Regional Court dismissed the applicants' appeal on the ground that the relevant provisions of the Civil Code (Articles 1666 and 1666a – see “Relevant domestic law” below) governing the protection of children's interests were satisfied.",
"The Regional Court referred to the two reports by the experts in psychology.",
"According to the first report, which had been lodged with the Bersenbrück Guardianship Court on 20 November 1996, the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth. Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants' sense of insecurity. The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children. Moreover, the grandparents, who were incapable of offering support to their own children (the applicants), were no more capable of remedying the intellectual deficiencies presented by their grandchildren.",
"According to the second expert report – the one delivered on 18 December 1997 – the girls were approximately one year behind in their general development, a factor that was discernible in particular from their speech, which consisted of stammering. Had they not benefited from years of support from the educational and social services, they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life. The applicants were incapable of helping their daughters to develop their personalities, as they were ill-equipped to understand them or to treat them in an appropriate manner. Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children. In particular, the knowledge and skills acquired at school were in danger of being stifled in the family environment. The applicants had done no more than to tend to the children's basic needs. There was a risk that in the future the parents would become increasingly aggressive towards their children. Regard being had to all those considerations, separating the children from the family was the only way of eliminating all danger to the children's welfare ( Gefährdung des Kindeswohls ).",
"The Regional Court noted that the expert witnesses had reached the same conclusion following a thorough analysis. The second expert witness had had due regard to the fact that the applicants had contacted the German Association for the Protection of Children and that Mrs Kutzner had attended a childminding course. However, those factors were not sufficient to enable the Regional Court to rule out all risk of the children's development being harmed.",
"3. Proceedings in the Oldenburg Court of Appeal",
"28. On 20 March 1998 the Oldenburg Court of Appeal ( Oberlandesgericht ) dismissed the applicants' appeal, holding that there had been no breach of the law. The courts concerned had heard representations from the parties, relied on reports by two expert witnesses and had taken into account the educational assistance measures that had already been implemented, the expert psychological report lodged by the German Association for the Protection of Children on behalf of the applicants and the opinion of the family doctors.",
"4. Proceedings in the Federal Constitutional Court",
"29. On 26 May 1998 a three-member committee of the Federal Constitutional Court ( Bundesverfassungsgericht ) dismissed an appeal by the applicants.",
"5. Expert evidence furnished on behalf of the applicants at the request of the Association for the Protection of the Rights of the Child",
"30. On 29 May 1998 Mr Riedl, a professor of educational sciences and Director of the Educational Sciences Institute at the University of Schwäbisch-Gmünd, lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children's welfare was not in danger and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. He said in particular that the family provided a successful example of cohabitation between three generations that was desired, planned and well-organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment (“ die Familie Kutzner bietet somit ein geglücktes Beispiel für das gewollte, geplante und wohlorganisierte Zusammenleben dreier Generationen in geordneten wirtschaftlichen Verhältnissen und unter positiven individuellen Bedingungen ”). He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school.",
"31. On 17 November 1999, also at the request of that association, Mr Giese, a professor of law at the Tübingen Institute for the Assessment of Physical and Mental Damage ( Institut für Medizinschaden ), produced a further expert report on behalf of the applicants, in which he concluded that the procedure followed by the German courts in the instant case had contravened Articles 6 and 8 of the Convention.",
"C. Restrictions on the applicants' visiting rights",
"32. As the children had been placed in unidentified foster homes, the applicants were unable to see them for the first six months.",
"33. They then made an application to the Osnabrück Regional Court, which on 4 December 1997 granted them visiting rights of one hour a month despite opposition from the Youth Office.",
"34. Contrary to what had been ordered by the Guardianship Court, visits were conducted in the presence of eight representatives from various social services departments and associations. Subsequently, their number decreased, but the Youth Office insisted on visits being accompanied ( begleitetes Besuchsrecht ).",
"35. Between July and November 1999 the applicants made various attempts to obtain permission to see their children at Christmas or at the start of their eldest daughter's school year, but the Youth Office refused. The applicants applied to the Bersenbrück Guardianship Court and were granted permission to see their eldest daughter at the beginning of the school year.",
"36. On 8 December 1999 the applicants made a fresh application to the Guardianship Court seeking the right to visit their children for two hours at Christmas.",
"37. On 21 December 1999 the Guardianship Court dismissed their application. It sought a further report from another psychologist, Ms Sperschneider, in order to establish to what extent and to whom further visiting rights should be granted.",
"38. Additional information supplied by the parties after the Court had delivered its admissibility decision (see paragraph 8 above) indicates that in her report of 12 May 2000 Ms Sperschneider recommended that the applicants' visiting rights should be increased to two hours a month and that the grandparents should also be permitted to take part in visits once every two months.",
"39. By an order of 9 October 2000 the Guardianship Court requested the parties to indicate whether they accepted the psychologist's proposal.",
"40. In a letter of 2 November 2000 the Youth Office said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist.",
"41. In a letter of 14 March 2001 the applicants asked the Guardianship Court to issue a decision on the merits.",
"42. In a decision of 16 March 2001 the Guardianship Court took formal note that an agreement had been reached between the parties concerning the applicants' rights to visit their children and held that it was unnecessary to determine the merits of the case.",
"D. The applicants' request for the appointment of a new guardian",
"43. In a letter of 29 January 2001 the applicants asked Mr Seifert, who as the Osnabrück Youth Office representative acted as the children's guardian, to meet them in order to discuss various issues such as the children's physical and psychological development, arrangements for visiting rights, and a christening ceremony that had been arranged in their home village.",
"44. Mr Seifert declined such a meeting in a letter of 22 February 2001, saying that the applicants could observe their children's progress for themselves during visits.",
"45. On 4 March 2001 the applicants wrote to the Bersenbrück Guardianship Court requesting it to terminate the Osnabrück Youth Office's appointment as guardian and to name an independent expert in its place.",
"46. In a letter of 26 April 2001 Mr Seifert rejected the criticism directed at him by the applicants.",
"47. In a reply of 17 May 2001 the applicants said that the Youth Office had systematically sought to separate them from their children for good, whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin. They added that if the experts considered that contact of one or two hours a month under strict supervision was sufficient, then the expert evidence was of little value. Lastly, Ms Sperschneider had spent in all only two hours with the applicants and had shown no interest in what they really thought.",
"48. In a letter of 12 July 2001 a court clerk ( Rechtspfleger ) replied to the applicants, informing them that the Guardianship Court had rejected their application."
] | [
"II. RELEVANT DOMESTIC LAW",
"49. Article 1666 of the Civil Code ( Bürgerliches Gesetzbuch ) lays down that the guardianship courts are under an obligation to order necessary measures if a child's welfare is jeopardised ( Gefährdung des Kindeswohls ).",
"50. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare.",
"51. The second sub-paragraph of Article 1666a provides:",
"“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"52. The applicants alleged that the withdrawal of their parental responsibility for their two daughters had infringed their right to respect for their family life, as guaranteed by Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"53. The Government asserted that the interference in issue was based on Articles 1666 and 1666a of the Civil Code and was necessary for the children's physical and psychological welfare. They said that, after hearing representations from the parties and seeking the opinion of two experts in psychology, the domestic courts had concluded that the applicants' interest in maintaining family life had to yield to the interest of ensuring the children's welfare, as the children's development had been found to have become so retarded that, partly as a result of a lack of cooperation between the applicants and the social services, less radical educational assistance measures had proved insufficient in the past. Indeed, the experts had reached identical conclusions, but had simply stressed different aspects of the problem, something that was not uncommon in such cases and was also explained by the fact that their reports had been prepared at different stages of the proceedings. Furthermore, it had not been possible to take Mr Riedl's report on behalf of the applicants into account, as it had not been lodged until 28 May 1998, that is to say two days after the Federal Constitutional Court had delivered its decision. In any event, that report had been prepared privately and could not be used to challenge the conclusions of the first two experts. Lastly, the Government stressed that there had not been a total severance of contact between the applicants and their children and that there was also contact between the girls' respective foster parents. In conclusion, the dispute concerning the applicants' visiting rights was now settled, as the applicants had accepted Ms Sperschneider's proposals on that subject and were in fact visiting their children in accordance with the suggested arrangements.",
"54. The applicants questioned the need for the interference and criticised certain aspects of the expert reports commissioned by the domestic courts. In their submission, those reports were neither reliable nor credible, as they proffered entirely different reasons as proof that the children's welfare was in jeopardy. In the first report, the expert had referred to emotional deficiencies in the relationship between the applicants and their daughters, whereas the second expert had laid the emphasis on the parents' intellectual shortcomings. They found it intolerable to be criticised for their low intellectual level, as, if such criteria were to be applied, approximately 30% of parents in Germany would have their parental responsibility for their children withdrawn. The applicants also complained that the experts had failed to examine in detail, as they were required to do by the relevant provisions of civil law, whether alternative measures could be taken, such as appointing another social worker to assist the family, that would obviate the need for parental responsibility to be withdrawn altogether. They stressed that the effects of being separated from their parents had been dramatic for the children and that the children were suffering from “parental alienation” syndrome, a condition recognised by the international scientific community. Lastly, they expressed their disapproval of the decision of the Osnabrück Youth Office to place the children in separate unidentified homes and of its insistence on doing everything possible to keep contact between them and their children to a strict minimum, without seeking to offer support to the family of origin, despite the obligation imposed on them to do so by the Law governing support for children and adolescents ( Kinder- und Jugendhilfegesetz ). They submitted that the unsatisfactory restrictions on their visiting rights were causing the children to become increasingly alienated ( Entfremdung ) from their family of origin and risked causing irreparable damage to the parent-child relationship.",
"55. The applicants also complained that they been denied a fair trial, as the domestic courts had relied exclusively on the findings of the District Youth Office, the Society for Family Education and the official expert witnesses, without having regard to the reports of the experts called on behalf of the applicants, Mr Riedl and Mr Giese. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"56. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, among other authorities, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I).",
"57. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint.",
"A. Whether there has been an interference",
"58. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see, among other authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987, Series A no. 121, respectively, p. 27, § 59, pp. 71-72, § 60, and p. 117, § 64; Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 29, § 59; Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 58; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 72; Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 50; McMichael, cited above, p. 55, § 86; Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1001-02, § 52; Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1489, § 51; Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI; Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX; and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII).",
"59. There is therefore no doubt – and the Government do not contest – that the measures concerned in the present case (the children's continued placement in foster homes and the restrictions imposed on contact between the applicants and their children) amounts to an “interference” with the applicants' rights to respect for their family life.",
"B. Whether the interference is justified",
"60. An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Gnahoré, cited above, § 50 in fine ).",
"61. Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see, among other authorities: Eriksson, cited above, pp. 26-27, § 71; Margareta and Roger Andersson, cited above, p. 30, § 91; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide, cited above, § 94; and Gnahoré, cited above, § 51).",
"62. The boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, W., B. and R. v. the United Kingdom, cited above, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and Gnahoré, cited above, § 52).",
"1. “In accordance with the law”",
"63. The interference in issue was indisputably based on Articles 1666 and 1666a of the Civil Code.",
"2. Legitimate aims",
"64. The Court considers that there is no doubt that the measures in issue were intended to protect “health or morals” and the “rights and freedoms” of the children.",
"3. “Necessary in a democratic society”",
"65. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Olsson (no. 1), cited above, p. 32, § 68; Johansen, cited above, pp. 1003-04, § 64; Olsson (no. 2), cited above, p. 34, § 87; Bronda, cited above, p. 1491, § 59; Gnahoré, cited above, § 54; and K and T. v. Finland, cited above, § 154). It will also have regard to the obligation which the State has in principle to enable the ties between parents and their children to be preserved.",
"66. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ( Olsson (no. 2), cited above, pp. 35 ‑ 36, § 90), often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Johansen, cited above, pp. 1003-04, § 64; K. and T. v. Finland, cited above, § 154).",
"67. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. When a considerable period of time has passed since the child was first placed in care, the child's interest in not undergoing further de facto changes to its family situation may prevail over the parents' interest in seeing the family reunited. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Johansen, cited above, pp. 1003-04, § 64).",
"68. The Court notes that in the instant case, by a judgment of 27 May 1997, the Bersenbrück Guardianship Court withdrew the applicants' parental responsibility for their two daughters, Corinna and Nicola, who were born in 1991 and 1993 respectively, and ordered their placement with foster parents, notably on the ground that the applicants did not have the requisite intellectual capacity to bring up their children. The Guardianship Court also noted that the children were considerably behind in their emotional and physical development and that the applicants had failed to cooperate with social services.",
"In a judgment of 29 January 1998 the Osnabrück Regional Court, relying on two reports by expert witnesses, the first of whom stressed the applicants' intellectual deficiencies and the second their lack of emotional support, upheld the Guardianship Court's order placing the children with foster parents.",
"69. The Court begins by noting that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8 of the Convention to enjoy a family life with their child ( K. and T. v. Finland, cited above, § 173).",
"70. The Court recognises that in the instant case the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments and psychologists. However, it considers that both the care order itself and, above all, the manner in which it was implemented were unsatisfactory.",
"71. It appears that the children benefited from an early age and, indeed, at the applicants' request, from educational support and that the situation became acrimonious as a result notably of a conflict between the applicants and a social worker, Ms Klose, who submitted a very negative report to the Osnabrück Youth Office.",
"72. Moreover, the opinions of the psychologists, from whom expert evidence was taken at various stages of the proceedings by the domestic courts, were contradictory, if not in their conclusions then at least as regards the reasons relied on (one psychologist referred to the parents' lack of intellectual capacity while the other referred to emotional underdevelopment that made them incapable of contributing to the development of the children's personalities).",
"73. Moreover, both of the other psychologists, who had been retained as expert witnesses by the German Association for the Protection of Children and the Association for the Protection of the Rights of the Child, and the family doctors urged that the children be returned to their family of origin. They emphasised in particular that the children's welfare was not in jeopardy and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. They said that the children should be given additional educational support. Those conclusions could not be disregarded simply because they emanated from people who were acting on behalf of one of the parties to the proceedings (see paragraph 53 above).",
"74. Lastly, unlike the position in other cases of the same type that have come before the Court, there have been no allegations that the children have been neglected or ill-treated by the applicants.",
"75. Accordingly, although the educational-support measures taken initially subsequently proved to be inadequate, it is questionable whether the domestic administrative and judicial authorities have given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents.",
"76. The Court further reiterates that a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( Olsson (no. 1), cited above, pp. 36-37, § 81). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child ( K. and T. v. Finland, cited above, § 178).",
"77. However, in the instant case, not only have the children been separated from their family of origin, they have also been placed in separate, unidentified, foster homes and all contact with their parents was severed for the first six months. In addition, the children themselves have at no stage been heard by the judges.",
"78. Furthermore, the evidence in the case file shows that the applicants were only granted visiting rights after making an application to the court, and visits were in practice systematically obstructed by the Bersenbrück Youth Office, initially being restricted to one hour a month in the presence of eight people who were not members of the family before being increased to two hours a month (with the grandparents being authorised to visit once every two months) by a decision of the Osnabrück Guardianship Court on 9 October 2000.",
"79. Having regard to the fact that the children were very young, severing contact in that way and imposing such restrictions on visiting rights could, in the Court's opinion, only lead to the children's increased “alienation” ( Entfremdung ) from their parents and from each other.",
"80. Nor can the issue be regarded as having been resolved, as the applicants have consistently contested not only their children's placement with the foster parents, but also the restrictions imposed on their visiting rights and in practice it would be unfair to criticise them for making use of the arrangements proposed by the domestic courts to at least gain an opportunity to see their children.",
"81. Having regard to all these considerations, the Court finds that although the reasons relied on by the domestic authorities and courts were relevant, they were insufficient to justify such a serious interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aims pursued.",
"82. Consequently, there has been a violation of Article 8 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"83. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"84. The applicants maintained that the withdrawal of their parental responsibility for their two daughters had caused them pecuniary damage, which they calculated as follows:",
"(i) 25,700 marks (DEM) in family benefit which they no longer received owing to the fact that the children had been placed in foster homes;",
"(ii) DEM 1,488, being the sums which the Youth Office had allegedly seized on their account as a financial contribution towards the children's needs in their new homes (however, proceedings were still pending as the applicants had contested the attachment order);",
"(iii) DEM 18,000 for delays in the building of their house;",
"(iv) DEM 110,448 for loss of earnings by Mr Kutzner, who had been unable to carry on working owing to the dramatic psychological and physical effects of being separated from her children;",
"(v) DEM 35,895 for loss of earnings by Mrs Kutzner's mother, who had likewise been prevented from working as a result of the effects of the family situation on her health.",
"85. The applicants also alleged that they had sustained substantial non-pecuniary damage, their physical and psychological health having suffered as a result of their separation from their children, their children's separation from each other and the restrictions on their visiting rights. They left the issue of quantum to the Court's discretion.",
"86. The Government expressed no view on the matter.",
"87. The Court considered that the alleged pecuniary damage was either unsupported by evidence or had not been caused by the violation that had been found. However, it found that the applicants had undeniably sustained non-pecuniary damage as a result of being separated from their two daughters and the restrictions on their visiting rights. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, it awards them compensation of 15,000 euros (EUR) jointly.",
"B. Costs and expenses",
"88. The applicants' claim for costs and expenses was broken down as follows:",
"(i) DEM 8,392 for lawyers' fees before the domestic courts;",
"(ii) DEM 9,602.20 for expert witnesses' fees;",
"(iii) DEM 7,674.60 for the fees of the Association for the Protection of the Rights of the Child, which had also represented the applicants before the domestic courts and the Court;",
"(iv) DEM 1,220 for the expenses incurred by the Association for the Protection of the Rights of the Child.",
"89. The Government did not raise any objections to the claims.",
"90. According to its settled case-law, the Court will award costs and expenses only in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Pammel v. Germany, judgment of 1 July 1997, Reports 1997-IV, p. 1114, § 82). With regard to lawyers' fees, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them.",
"Ruling on an equitable basis, the Court decides to award the applicants jointly the sum of EUR 8,000, from which EUR 350.63 which they have already received in legal aid must be deducted.",
"C. Default interest",
"91. According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 7.57% per annum."
] |
92 | Wallová and Walla v. the Czech Republic | 26 October 2006 | The applicants complained that they had been separated from their five children, who had been placed in public care, because of the difficulties they had finding suitable accommodation for such a large family. They also complained about the lack of assistance on the part of the Czech authorities. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the care order in respect of the applicants’ children had been made solely because the large family had been inadequately housed at the time. Under the social welfare legislation, however, the national social welfare authorities had powers to monitor the applicants’ living conditions and hygiene arrangements and to advise them what steps they could take to improve the situation themselves and find a solution to their housing problem. Separating the family completely on the sole grounds of their material difficulties had been an unduly drastic measure. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"The applicants, husband and wife, were born in 1963 and 1949 respectively and live in Vesce.",
"They have five children, born in 1985, 1988, 1995, 1997 and 2000.",
"On 25 September 2000, the District Court (Okresní soud), Tábor, in receipt of an application originating from the Department of Social Welfare of the Tábor District Office (hereinafter referred to as “ the competent social authority ”), issued a supervision order for the children of the applicants, for lack of adequate housing. Admitting that the parents were making efforts to resolve this issue, the court noted that a fast solution was compromised by their lack of resources. The purpose of the supervision order was therefore to ensure that the children would quickly benefit from adequate accommodation, failing which, according to the court, another measure of assistance would have to be considered.",
"On 15 November 2000, the competent social authority asked the court to adopt an interim measure ordering the placement of the children in an educational care establishment. It stated in support of this request that since 1997 the family did not benefit from adequate and stable housing, that the parents had not been able to find a solution and that they avoided the checks resulting from the supervision order.",
"On the same day, this request was granted by the court which decided to provisionally place the three eldest children in an establishment at V. and two other children in that of K. Issued under Article 76a of the Code of Civil Procedure, the measure was aimed at ensuring the proper development and health of the children.",
"On 29 December 2000 the regional court ( Krajský soud ) dismissed as belated the applicant ’ s appeal against the provisional measure of 15 November 2000.",
"On 2 February 2001, the district court, on its own motion, initiated proceedings for the custody of the five children.",
"By judgment of 1 March 2001, the court decided to place the children in an educational care establishment, considering that the education provided by the applicants was lacking because they were not able to provide to their children with adequate and suitable housing from a hygiene and health perspective. He informed the interested parties of the possibility of requesting the annulment of this measure as soon as circumstances change.",
"On 26 July 2001, this judgment was voided by the Regional Court, which requested the Court of First Instance to supplement the evidence concerning the need for such an placement.",
"According to the information provided by the Government, the District Court declared the proceedings to have been discontinued on 1 November 2001 on the ground that the applicant had submitted a lease agreement for an appropriate apartment. This decision was annulled by the Regional Court on 30 January 2002; the latter noted that both parents were unemployed and that it was not certain that the said fixed-term lease (until February 2002) would be renewed.",
"On 21 March 2002, the District Court, hearing the request of the competent social authority, decided that the applicants ’ consent was not required for the adoption of their two younger children. It considered that, in accordance with Article 68 § a) of the Family Law, the interested parties had not shown any real interest in their children for at least six months. In particular, they did not send them gifts, did not discharge their maintenance obligations and did not attempt to obtain adequate housing; the applicant ’ s only visit to the K. establishment failed because of a quarantine.",
"On 18 April 2002 the District Court again decided, under Article 46 § 1 of the Family Law, to entrust the care of the five children of the applicants to an educational care establishment. It noted that the lease contract entered into by the applicant (see paragraph 14 above) had not been renewed because the persons concerned had not paid rent and expenses and had only applied once to the municipality of Tábor to provide them with an apartment. Moreover, the first applicant did not have a stable job and the unemployed applicant was only mentioned on the list of persons seeking employment since February 2001 and had not yet made all the necessary steps to obtain social benefits. Since they had not made sufficient efforts to overcome their material difficulties and to find accommodation for the family, the court held that, for subjective reasons, the applicants were not able to assume the education of their minor children. He further noted that the persons concerned did not show an interest in their children, that they had not visited them since April and December 2001 and that there was no written or telephone contact between them.",
"On 26 June 2002, the District Office granted, in respect of the three eldest children, at the request of the applicants to receive them at home during part of the school holidays. Such a visit took place also at Christmas 2002.",
"On 22 August 2002, the Regional Court, hearing the appeal brought by the applicants, upheld the judgment of 18 April 2002. Without claiming that the placement of the children in educational care establishments was the ideal solution and admitting that such a measure constituted a considerable interference with the rights of the parents and the children, the court noted that the material needs of the children were provided for, particularly since the parents remained negligent in performing their parental obligations. The court also noted that in accordance with the principle underlying Article 46 § 2 of the Family Law, placement in a public establishment may only be considered when it was not possible to leave children in a family environment. However, it was established in this case that the children ’ s maternal grandmother was not able to care for them and that he there was no other person willing to provide their education. Lastly, the court stated that if the parents were to make genuine efforts to create appropriate living conditions and a stable family environment, there would be no obstacle to putting an end to the placement of the three older children in the future.",
"On the same day, the Regional Court upheld the judgment of 21 March 2002 on consent to the adoption of the youngest children.",
"On 20 November 2002 the applicants brought a constitutional appeal alleging that the decision to place their children in educational care establishments and the decision relating to consent to adoption did not comply with the law or Article 8 of the Convention or the Convention on the Rights of the Child. According to the applicants, these interferences were not necessary in a democratic society, as they do not satisfy the proportionality test, and the courts did not take due account of the opinion of the minors. The applicants argued that the placement of the children in public establishments was motivated solely by their material difficulties, without the authorities fulfilling their positive obligations, whether in terms of counselling or assistance and allowing them to improve their situation. According to them, it was only if such positive steps failed that the contested interference would satisfy the subsidiarity requirement. Although they admitted their share of responsibility, the applicants alleged that their financial difficulties were caused, inter alia, by the fact that the person who had bought their house stopped paying the agreed instalments and the accumulation of several negative circumstances. They also emphasized the right of children to enjoy the presence of their parents and drew attention to the risk of emotional deprivation. They further alleged that the unsatisfactory social and material situation of the children cannot be mended through the interference of public authorities in their right to respect for family life, which enjoys qualified protection. Lastly, the applicants argued that the conditions for overriding their consent to adoption had not been met in the present case.",
"On 13 November 2003, the Constitutional Court (Ústavní soud) appointed a guardian for the minor children for the purposes of the proceedings before it, and suspended the enforceability of decisions relating to consent to adoption.",
"By judgment of 28 January 2004, the Constitutional Court vacated the Regional Court ’ s judgment with respect to consent to adoption, on the ground that it had violated the rights of the applicants to a fair trial and to the respect of their family life. However, it rejected the challenge in the section relating to the placement of the children in public institutions. Noting that the applicants ’ situation had been carefully examined, the court considered that the contested interference by the State was the only possible solution and that it was in line with the law and with the children ’ s interests. The Court stressed that the responsibility for ensuring adequate life and development conditions for the children are primarily the responsibility of the parents, while the help of public institutions may only intervene when the family was temporarily confronted, through no fault of its own, with a difficult situation. Concerning the interview of the children whose age permitted it, the Court noted that the girl born in 1988 had been heard; the hearing of the applicants ’ son, born in 1985, failed because he had fled the institution at the time.",
"In this decision, the court also found that the main problem underlying the entire proceedings was the lack of adequate housing for such a large family and the applicants ’ inability, particularly as a result of their poverty, to obtain such housing. As further problems appeared thereafter, it was difficult for the Constitutional Court to say whether the applicants were the irresponsible parents or whether they were unlucky and could not succeed, despite their efforts.",
"On 29 March 2004, the M. spouses requested to be able to host, beforehand, the two younger children of the applicants. On April 27, 2004, their application was granted by the municipal office of Tábor. The applicants appealed and the appeal was dismissed on 22 June 2004.",
"On 6 April 2004, the Regional Court, bound by the opinion of the Constitutional Court, rejected the request that the applicants ’ younger children be adopted without the consent of the applicants.",
"In April 2004, the applicants were asked to pay their debts to the V. establishment, where all their children were ten placed (see paragraph 10 above). It seems that this debt was still not settled, which gave rise to criminal proceedings against the applicants.",
"On 13 May 2004, the applicant [the mother] was informed by the competent local authority that her request to rent an apartment (in the context of a call for tenders) was late and could not therefore be taken into account.",
"Upon the applicants ’ request, an investigation was carried out at their home by the assistants of a children ’ s aid association on 20 May 2004. They found that the persons concerned were living in unacceptable conditions and that they were irregularly applying for housing. It was also established that on 13 July 2000, after the birth of her last child, the applicant [the mother] had accepted temporary accommodation (for the month of July 2000) in a specialized structure, but that she did not have the means to pay the price (7,000 CZK [1] ). She was not informed of the possibility for the whole family to live in another, less expensive establishment run by the same association, and no such request had been made by the competent social authority.",
"On 3 June 2004, the M. spouses applied to the District Court to host the two younger children. By decision of 14 June 2004, the two younger children were appointed a guardian. The applicants appealed, objecting to their children being placed in foster care.",
"In January 2005, the applicants inquired about the possibility of hosting their children during the holidays. They were informed by the competent social authority that their visiting rights were not limited, that they had to agree with the M. spouses and cooperate with the competent body with respect to the two younger children, and that they were required to apply to the establishment concerned with respect to the other two children (the third had already reached majority ), in accordance with Article 30 of Law No 359/1999. In March 2005, it informed them that it was necessary to request the visits well in advance so that the competent local authorities could provide their opinion thereon.",
"Subsequently, the competent social authority summoned the applicants to an interview and gave its consent to several stays of the older children (including during the weekends).",
"By judgment of 31 January 2005, the District Court granted the request of the M. spouses dated 3 June 2004 and decided to entrust them with the care of the two younger children. The Court noted that the applicants had not duly concluded a lease contract for the flat they occupied and that their financial situation was still unsatisfactory because they did not have a stable job. The court also observed that the applicants had not visited their children in 2003 and 2004, had not inquired about their condition, and that it was in the interests of minors to grow in a family environment.",
"The applicants appealed, alleging that they had already concluded a lease and that the father had found a job.",
"On 24 March 2005, they asked to be given the younger children.",
"On 6 May 2005, the contested decision was confirmed by the Regional Court. According to the Court, the applicants situation was not stable enough since the [father], who was hired since 10 March 2005, was still within his probationary period, since the lease contract had been concluded for a fixed period (with the possibility of renewal), and the applicant [the mother] was suffering from health problems. The court therefore considered that, despite their efforts, the applicants were not ready to take their children home.",
"On 6 May 2005, the applicants requested the return of the two older children, noting that their week-ends spent together unfolded without any problem.",
"At the same time, the director of the V. establishment informed the competent social authority that the applicant [the father] had acted vulgarly with him; and that therefore, he would no longer allow the older children to live with the family because he was convinced that such behaviour of the applicant had negative repercussions on their education.",
"By judgment of 9 November 2005, the District Court cancelled the placement of the two eldest children (born in 1988 and 1995) in the educational care establishment and entrusted them to the applicants, under educational supervision. The court took into account the fact that the children were already spending every other weekend with their parents, in the absence of neglect or problems, and that they had themselves wished to return there. It was established that the applicants rented a three-room apartment since November 2004 under a six-month renewable lease, that the applicant [the father] had been working since March 2005 and that the applicant [ the mother] benefited from a disability pension. In these circumstances, the court found that the reasons that led to the placement measure were no longer pertinent.",
"The competent social authority appealed against this judgment, noting in particular that the applicants did not have stable accommodation and that they had debts ( among others, to the V. establishment). The interested parties contested this.",
"On 23 February 2006, the Regional Court upheld the contested judgment (while correcting a formal defect in its operative part). According to the court, it was clear from the record that the fundamental problem facing the parents in this case was to provide adequate housing for such a large family. The court noted that, despite their efforts to improve the situation, the applicants did not have, until then, stable housing, which was due to their financial difficulties as well as to a certain laxity. However, it was possible to conclude on the day the decision was rendered, that the applicants had done their utmost and that, having found adequate housing, they had satisfied the main condition of their children ’ s education. Moreover, it had not been established that the lease contract might not be renewed soon or that their debts would prevent the applicants from ensuring the education of their children. The court finally noted that, since the relationship between the employees of the V. establishment and the applicants was far from ideal and the children wanted to return home, the placement ceased to be a solution and became traumatic.",
"This judgment acquired res judicata on 23 March 2006.",
"It appears that the two older children are still in the care of a foster family.",
"III. OTHER SOURCES",
"Committee on the Rights of the Child established by Article 43 § 1 of the Convention on the Rights of the Child",
"Observations on the report submitted by the Czech Republic pursuant to Article 44 of the Convention, dated 17 June 2002 (extract)",
"“Children who require special protection and care, who were temporarily or permanently deprived of their family environment, or whom it was not possible to leave in their current environment in their best interests are recorded and monitored by childcare authorities at the appropriate District Offices and Municipal Offices. If all attempts at family therapy fail (material assistance, financial assistance, counselling), the childcare authority files an application with the court to issue a preliminary injunction or an application to order institutional care. In the experience of the NGOs, however, family therapy is often inadequate owing, on the one hand, to a lack of social workers and, on the other hand, to a lack of financial resources for the necessary material and financial assistance.”",
"Concluding observations on the report submitted by the Czech Republic pursuant to Article 44 of the Convention, dated 18 March 2003 (excerpt from paragraphs 31-44)",
"“While noting that the principle of the “interest and welfare” of the child is contained in the Act on the Family and in the Law on Social and Legal Protection of Children, the Committee is concerned that the principle of primary consideration for the best interests of the child is still not adequately defined and reflected in all legislation, court decisions and policies affecting children. Furthermore, the Committee is concerned that there is insufficient research and training for professionals in this respect.",
"The Committee welcomes the information on the Policy Statement on measures to be taken relating to child and family welfare and on the preparation of a national programme of support to families with children. The Committee is concerned at the insufficient assistance and guidance given to parents in their child-rearing responsibilities for the upbringing and development of the child, resulting in numerous cases of custody procedures or in alternative care in institutions. The Committee is further concerned that preventive efforts and family counselling are inadequate and that placement in an institution may be a solution to social problems and crisis situations in the family.",
"The Committee notes the adoption of the Act of Residential Care in 2002, but is concerned that it has not addressed the full range of rights covered by the Convention. (...) The Committee welcomes the policy of deinstitutionalization, but remains deeply concerned by the increasing number of children placed in institutions by preliminary injunction and at the frequent use of this special measure, which can be revoked only after a lengthy and complex procedure. Furthermore, the Committee is concerned that the general principles of the Convention are not always observed in such situations and that:",
"(a) Institutional responses to providing assistance to children in difficulty are predominantly used and a disproportionately large number of children are placed in a residential institutional care environment;",
"(b) Temporary measures may be extended for lengthy periods and that there are no regulations for review of placement;",
"(c) Children are often placed at significant distances from parents, who, in turn, may not be aware of their visiting rights; punitive measures such as limitation of phone calls or meetings with parents may also be used;",
"(d) Contacts with parents are sometimes made conditional upon the behaviour of children in care;",
"(e) The conditions and treatment of children in some institutions may not be provided in a manner consistent with the evolving capacities of the child and the obligation to ensure his or her survival and development to the maximum extent possible;",
"(f) Institutions are large and an individual approach to each child is lacking, child participation is minimal, and treatment in some institutions (such as diagnostic institutions) may have undesirable effects.”"
] | [
"II. RELEVANT DOMESTIC LAW",
"Charter of Fundamental Rights and Freedoms",
"In accordance with Article 32 § 1, the family is protected by law. Special protection for children and minors is guaranteed. Under Article 35 § 5, parents caring for children are entitled to State aid.",
"Code of Civil Procedure",
"Article 76a provides that if a minor child is deprived of care or if his life or favourable development is seriously threatened or disturbed, the President of the Chamber shall issue an interim order to place that child in the care of a designated person (physical or legal person ).",
"Family Law No. 94/1963",
"According to Article 46 § 1, if the education of the child is seriously threatened or disturbed and if other educational measures have not remedied the situation, or if for other serious reasons the parents cannot ensure the child ’ s education, the court may order the placement of the child in an educational care institution. If the interests of the minor so require, the said order may be made even if it was not preceded by other educational measures.",
"Article 46 § 2 requires the court to consider, before ordering the placement mentioned above, whether the child ’ s education may be provided by a foster family, this type of education being a priority. If the reasons for the placement order cease to exist or if the child may be placed in foster care, the court will terminate the placement in the public institution.",
"Under Article 68 (1) (a), the consent of the parents acting as legal representatives of the child is not necessary for the adoption of the child if, for a minimum period of six months, they did not consistently show a real interest in the child, especially if they did not visit him or if they did not fulfil their maintenance obligations on a regular basis and of their own free will and if they did not make efforts to redress, as far as possible, their family and social situation so that they themselves can take care of their child.",
"Law No. 114/1988 on the powers of the authorities regarding social aid",
"According to Article 14 §§ 1 and 2, municipalities and district offices organize and provide citizens with social protection. To this end, they are seeking, in cooperation with national authorities, associations and churches, people in need of social assistance. If the municipality is not competent to provide these citizens with the necessary services and allowances, it notifies the district office or acts as an intermediary. It can also grant an exceptional allowance to citizens who find themselves in very unfavourable social conditions. Under Article 15 (2), the municipality informs the district office which families, children and pregnant women are in need of social assistance.",
"Law No. 359/1999 on the social protection of the child",
"Article 29 § 1 requires the competent local authority to verify compliance with the rights of the child placed in a public institution, to monitor the development of his or her capacities and relations with the parents and to establish whether the grounds for placement are still relevant. It also goes towards placing brothers and sisters in the same establishment.",
"According to Article 30, the public establishment in which a child is placed may allow the latter, subject to the written consent of the competent local authority, to stay with his parents or other persons; such a stay is in principle limited to fourteen consecutive days. If the addresses of the parents ’ and the child ’ s permanent homes are different, the consent of the two competent local authorities is required.",
"ON THE LAW",
"ON THE VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"In their complaint form, the applicants complained in particular that they had been separated from their children and complained of the lack of assistance from the national authorities. In this regard, they relied on Articles 1, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 12.",
"Having discretion with respect of the legal classification of the facts of the claim, the Court considers it appropriate to examine the complaints raised by the concerned parties only from the perspective of Article 8, which requires that the decision-making process leading to interference measures be fair and respect as appropriate the interests protected by this provision (Kutzner v. Germany, No. 46544/99, § 56, ECHR 2002-I). Article 8 thus provides in its relevant parts:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"The Government rejects the applicants ’ argument.",
"On Admissibility",
"The Government first agues non-exhaustion of domestic remedies.",
"Provisional Measure of 15 November 2000 and Placement of Younger Children in a Foster Family",
"With regard to the measure of 15 November 2000, whereby the children of the applicants were provisionally placed in an educational assistance establishment, the Government observes that the appeal filed by the applicant was dismissed for being submitted late (see paragraph 11 above).",
"It further notes that the applicants did not lodge a constitutional complaint against the decision of 6 May 2005, according to which their two younger children were definitively transferred from the public establishment to a foster family.",
"The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity to prevent or remedy the violations alleged against them before they are submitted to the Court. States may therefore only be held accountable before an international body after having had the opportunity to rectify the situation in their domestic legal order (Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996- VI, § 51, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999-I). The aforementioned provision therefore requires that the complaints to be subsequently brought in Strasbourg be brought before the relevant internal body, at least in substance and in accordance with the forms and timeframes provided in the internal law (Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 66).",
"In the present case, it must be stated that the applicants have not duly exercised their rights to the remedies available to them for challenging the above-mentioned decisions.",
"It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.",
"Definitive placement of the children in an educational care establishment pursuant to the decisions of 18 April and 22 August 2002",
"The Government notes that on 24 March and 6 May 2005, the applicants request the court to terminate the placement of their four minor children in the public establishment and in the foster family and to be transferred to their custody (see paragraphs 30 and 32 above).",
"At the time of the preparation by the Government of its observations, these requests introduced by the parents remained pending. The Government argued that if the applicants ’ allegations that their situation was already satisfactory were to be justified, the courts would have the opportunity to remedy the alleged violation of the Convention by ordering the return of the children to their parents ’ care. For this reason, the Government considered this part of the application premature.",
"The Court notes that the applicants and their children were definitively separated by virtue of the decisions of 18 April and 22 August 2002, in which the courts decided to place the children in educational care establishments.",
"According to the information available to the Court to date, the two younger children remain in foster care. The fact that the proceedings for the invalidation of this placement is pending does not detract from the reality of the interference in the applicants ’ right to respect for their family life resulting from the separation. Therefore, since the decisions to place these children became final in 2002 and were approved by the Constitutional Court in January 2004, the Government ’ s objection to the effect that the request was premature must be rejected.",
"With respect to the two eldest children, still minors, the petitioners ’ request dated 6 May 2005 was granted. Consequently, these children were reunited with the applicants pursuant to the Regional Court ’ s judgment of 23 February 2006. It follows that the measure constituting an interference with the applicants ’ right to the respect of their family life was in place for almost four years; therefore, the complaint based on these facts cannot be premature.",
"Therefore, the defence raised by the Government is rejected.",
"Furthermore, the Court considers it necessary to note that, notwithstanding the judgment of the Regional Court ordering the return of older children into the applicants ’ care, they may still be considered “victims” of a violation of the Convention within the meaning of Article 34. Indeed, “a measure of a public authority eliminating or mitigating the effect of the act or omission at issue deprives a person the status of victim only if the national authorities recognise, explicitly or substantively, and then repaired the violation of the Convention” (DH and Others v. Czech Republic (dec.), No. 57325/00, 1 March 2005; Nsona v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and decisions 1996-V, § 106, Scordino v. Italy (No. 1) [GC], No. 36813/97, § 180, ECHR 2006 -...). However, in this case, the authorities did not in any way acknowledge any violation of the applicants ’ rights and the decision of 23 February 2006 was not based on the alleged violation of Article 8 of the Convention.",
"Therefore, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is unaffected by any other ground of inadmissibility. It must therefore be declared admissible.",
"On the merits",
"The parties ’ positions",
"The Government accepts that the measure being challenged in this case by the applicants constitutes an interference with their right to the respect for family life within the meaning of Article 8 of the Convention. The Government argues that the decision to place the children in an educational care establishment was based on the provision of Article 46 § 1 of the Family Law and that it was taken in order to protect the health and safety of children, as well as their rights and freedoms. The Government strongly opposes the applicants ’ allegations that the district office had submitted incorrect information to the courts and treated them in a discriminatory manner.",
"The Government also asserts that the said placement order was necessary in a democratic society; on this point, the Government observes that the first judgment of 1 March 2001 was vacated in order to better examine the issue of a need for a placement (see Paragraph 13 above).",
"Subsequently, it was found in the judgment of 18 April 2002 that the applicants did not have suitable accommodation, that they had not made sufficient efforts to find one and that they were unemployed and without resources. The Government agrees with the court that the applicants were not in a position to provide the education of their minor children for want of adequate housing; therefore, interference by the national authorities in the form of taking over the care of children was essential.",
"Furthermore, according to the Government, the judgment of 22 August 2002 and its detailed and convincing reasoning show that the appellate court was aware of the importance and the consequences of the placement measure for the applicants ’ family life. In accordance with the principle of subsidiarity, the court noted that it was only possible to place children in a public establishment if the aim could not be achieved through less restrictive means, which was the case here as the children could not be entrusted to another person. After taking into account the conflicting interests in the present case, the court properly explained the reasons for which the placement of the children was, in the concrete circumstances of the case, more conducive to the effective protection of their interests. Finally, the tribunal informed the applicants under which conditions it would be possible to put an end to the disputed placement.",
"Lastly, the Government notes that these decisions were validated by the Constitutional Court, which showed a balanced attitude towards this complex problem.",
"According to the Government, there is thus no reason to doubt that the above-mentioned decisions of the national courts satisfied the condition of “necessity in a democratic society” in that they were based on relevant and sufficient grounds. The main reason was the long-standing inability of the applicants to provide adequate housing for their children. Since the applicants had not remedied their situation even after the provisional placement of the children had been ordered, the national authorities had only to decide on the final placement of the children; therefore, the judicial decisions of 25 September 2000, 1 March and 1 November 2001 cannot be regarded as incompatible, as the applicants claim. Before ordering such a measure, the courts also examined, with a negative result, the question whether there were other less restrictive alternatives. As to the applicant ’ s allegation that the authorities did not contact her brothers and sisters, the Government asserts that most of them had been adopted or lived under the same conditions as the applicants and that the applicants had never suggested that their children be placed with their relatives. Thus, bearing in mind the delicate nature of the case, the courts in this case endeavoured to best protect the rights of the applicants and, in particular, those of their children.",
"Further, the Government consider irrelevant the applicants ’ argument that the national authorities did not act in accordance with their positive obligations in that they did not help them find adequate housing. Referring in particular to the judgment of 18 April 2002, the Government pointed out that the applicants had been sufficiently active. It should be noted that after the birth of her last child, the applicant was offered accommodation by the District Office for herself and all her children at a price which cannot be regarded as disproportionate and that the applicants were able to pay. However, the applicant only took up this offer in July 2000; afterwards, she secretly moved elsewhere and refused to return, which triggered the procedure leading to the placement of the children.",
"Finally, with regard to the procedural safeguards provided for under Article 8, the Government argued that the applicants had been sufficiently involved in the decision-making process and had actively participated in the hearings held by the district and regional courts, so that they were able to express themselves on the measure envisaged.",
"It follows, in the opinion of the Government, that the national authorities did not exceed their discretion as allowed by Article 8 of the Convention, and that this provision was not violated in this case.",
"The applicants allege that the Government ’ s observations lack impartiality and objectivity; according to them, the Government focuses on the procedural aspect of the case and does not examine the question of the fair protection of their rights and interests. The applicants admit that, formally, the courts acted in accordance with national law, but denounce that they relied solely on information provided by other national authorities, which was false and distorted. They argued that, despite their requests, these authorities never helped them to remedy their situation and find housing corresponding to their financial possibilities, as evidenced by, among other things, the report drawn up by the assistants of a children ’ s aid association (see paragraph 26 above). On the contrary, they merely noted the applicants ’ incapacity and resolved the case administratively, separating them from their children and even separating the children from each other, as they were placed in two different establishments. The applicants therefore claim that the authorities committed an injustice towards their children and caused them psychological trauma.",
"The applicants further argue that their efforts to find housing were monitored by the Tábor Department of Social Welfare since their arrival in the district in 1997. Apart from this monitoring, however, this authority did not undertake any positive actions. To the contrary, it caused the issuance of the supervisory order of 25 September 2000 by the District Court. The applicants consider that by this decision, the court indirectly invited the Department of Social Welfare to assist the applicants. However, only two months later, it ordered the temporary placement of the children (see paragraph 10 above), without examining the question of how the said department had fulfilled its obligation of assistance. According to them, the “ aid ” provided by the authorities was therefore limited to the adoption of various decisions that did not take into account the circumstances of the case and violated Articles 8 and 14 of the Convention.",
"The applicants assert that the decision to place their children in public schools was in contradiction with the facts mentioned in the judgment of 25 September 2000 and was based on distorted information as presented by the District Office; thereafter, the courts considered such information to be true without verifying its authenticity. They also contest the Government ’ s argument that the courts had looked for other persons to care for the children; they state in this respect that the authorities never contacted the applicant ’ s five siblings.",
"According to the applicants, who point out that they had obtained only basic education, the authorities showed a disdainful and discriminatory attitude towards them because of their social background and their poverty. Thus, after the birth of her last child and for fear of losing her, the applicant was forced to accept housing in a specialized structure for a month, at the price of 7,000 CZK fixed by the municipality, although the normal price was CZK 2,695 per month.",
"In this respect, the applicants note that in its decision of 28 January 2004, the Constitutional Court took note of, on the one hand, their efforts and, on the other hand, the limits of their capacities. Thus, while the district and regional courts attributed their situation to their lack of responsibility, the constitutional court did not exclude that they were hit by bad luck.",
"The applicants conclude by underlining the trauma suffered by their children as well as their relentless efforts to obtain their return.",
"Appraisal of the Court",
"The Court notes that in November 2000 the applicants ’ five children were provisionally placed in public educational care establishments. This measure was definitively extended by the decisions of 18 April and 22 August 2002 on the ground that the applicants were facing material difficulties and were unable to provide their children with adequate and stable accommodation. In 2003, the oldest child reached majority. In April 2004, the two younger children were placed in foster care where they are today. As for the other two children, their placement was definitively annulled in February 2006, at which date they were able to return to the applicants.",
"According to the Court ’ s established case law, for a parent and their child, being together is a fundamental element of family life ( Kutzner v. Germany, cited above, § 58) and domestic measures which prevent them from doing so constitute an interference with the right protected by Article 8 of the Convention ( K. and T. v. Finland [GC], No. 25702/94, § 51, ECHR 2001-VII). Such interference violates Article 8 unless it is “provided for by law” and it pursues one or more legitimate aims under the second paragraph of that provision and is “necessary, in a democratic society” in order to achieve such aims. The notion of “necessity” implies an interference based on a pressing social need, and in particular proportionate to the legitimate aim sought (see, for example, Couillard Maugery v. France, No. 64796/01, § 237, 1 July 2004).",
"In this case, it is not disputed before the Court that the placement of the children amounted to an “ interference ” in the exercise of the applicants” right to respect for their family life. Based on Article 46 § 1 of the Family Law, the disputed measure was “provided for under the law ”. It is also apparent from the reasons given by the domestic courts that their decisions in this case were aimed at safeguarding the interests of the children. The interference in question therefore pursued a legitimate aim provided for in Article 8 § 2 of the Convention: “ the protection of the rights and freedoms of others ”.",
"In order to assess the “necessity” of the contested measure “in a democratic society”, the Court will consider whether, in the light of the case as a whole, the grounds relied on in support of it were relevant and sufficient with respect to paragraph 2 of Article 8 of the Convention. To this end, it will take into account the fact that breaking up a family constitutes a very serious interference; such a measure must therefore be based on considerations inspired by the interests of the child and having sufficient weight and solidity ( Scozzari and Giunta v. Italy [GC], Nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII). However, the Court ’ s task is not to substitute itself to the domestic authorities in the exercise of their responsibilities in regulating the issues of the care of children by the public authority and the rights of the parents whose children have been placed, but to review under the Convention the decisions they have made in the exercise of their discretion ( K. and T. v. Finland [GC], cited above, § 154; Couillard Maugery v. France, cited above, § 242).",
"In this context, the Court reiterates that the fact that a child can be accommodated in a context more conducive to his education can not in itself justify being forcibly removed from the care of his biological parents; such interference with the right of parents, under article 8 of the Convention, to enjoy family life with their child must in addition be “ necessary ” because of other circumstances ( K. and T. v. Finland [GC], cited above, § 173, Kutzner v. Germany, cited above, § 69). In addition, Article 8 imposes positive obligations on the State which are inherent to the effective “ respect ” for family life. Thus, where the existence of a family bond is established, the State must in principle act in such a way as to allow such bond to develop and take the necessary measures to reunite the parent and the child concerned ( Kutzner v. Germany, cited above, § 61).",
"In this case, the Court notes that all the national courts, including most recently the Regional Court deciding to terminate the impugned placement of the two older children (see paragraph 35 above), acknowledged that the fundamental problem facing the applicants in this case was to find adequate housing for such a large family.",
"Thus, unlike most of the cases which the Court had the opportunity to examine, the children of the applicants in this case were not exposed to situations of violence or abuse (see, conversely, Dewinne v. Belgium (dec.), No. 56024/00, 10 March 2005, Zakharova v. France (dec.), No. 57306/00, 13 December 2005), and sexual abuse (see, conversely, Covezzi and Morselli v. Italy, No. 52763/99, § 104, May 9, 2003). Neither did the courts find in this case affective deficits (see, conversely, Kutzner v. Germany, cited above, § 68), a worrying state of health or a mental imbalance affecting the parents (see, conversely, Bertrand v. France (dec.), No. 57376/00, 19 February 2002, Couillard Maugery v. France, cited above, § 261). While it is true that in certain cases declared inadmissible by the Court, the placement of the children was motivated by unsatisfactory living conditions or material deprivations, this was never the only ground on which the courts ’ decision was based, and other elements such as the mental imbalance affecting the parents or their emotional, educational and educational incapacity were added to such reason (see, for example, Rampogna and Murgia v. Italy (dec.), No. 40753/98, May 11, 1999, MG and MTA v. Italy (dec.), No. 17421/02, 28 June 2005).",
"In the present case, the applicants ’ educational and emotional capacities have never been called into question and the courts have acknowledged their efforts to overcome their difficulties. Accordingly, the placement of the applicants ’ children was ordered solely because the family at that time occupied inadequate housing. In the Court ’ s opinion, it was therefore a material deficiency which the national authorities could have compensated by means other than the total separation of the family, which seems to be the most drastic measure which can only be applied to the most serious cases.",
"The Court considers that, in order to comply with the proportionality requirement in this case, the Czech authorities should have considered other measures, less radical than the placement of the children. Indeed, the Court considers that the role of the social welfare authorities is precisely to help people in difficulty who do not have the necessary knowledge of the system, to guide them in their efforts and to advise them, among other things, on the different types of social benefits, the possibilities of obtaining social housing or other means of overcoming their difficulties. In the Czech Republic, for example, Article 14 of Law No. 114/1988 tasks the local authorities with identifying persons in need of social assistance (see paragraph 41 above), and the Constitutional Court has also stated in its decision of 28 January 2004 that public institutions should intervene in cases where families were temporarily and through no fault of their own facing a difficult situation.",
"In this case, the national authorities had the opportunity to monitor the applicants ’ living and hygienic conditions, and could have advised them on the steps to be taken so that they themselves could improve the situation and find a solution to their problems. This would have been in line with the Czech social assistance legislation.",
"It is clear that, although the competent authorities were aware of the problems faced by the applicants, they merely followed their efforts and remedied their situation by ordering the placement of the children in a public establishment. Subsequently, the Tábor Department of Social Welfare also insisted on the need to extend this placement (see paragraph 34 above), there being no evidence that it reassessed the applicants ’ situation or had shown a constructive attitude as soon as there were signs of improvement.",
"It is true that, in addition, the applicants criticise the authorities for failing to provide them with social housing. The Government, on the other hand, contended that the applicants had shown a lax attitude and that they had not done enough to obtain an apartment or social allowances (see paragraph 16 above). The Court takes note of the parties ’ differing positions, while noting that the Government has not provided any information concerning the possibility for the applicants to be granted, where appropriate, social housing.",
"In any event, as it considers the placement measure to be disproportionate in this case (see paragraphs 74-75 above), the Court does not consider it necessary to rule on this issue.",
"In view of all of these elements, the Court considers that, although the reasons given by the national authorities and courts were relevant, they were not sufficient to justify this serious interference with the applicants ’ family life which was the placement of their children in public institutions. Moreover, it does not appear from the facts of the case that the social welfare authorities made any serious efforts to help the applicants overcome their difficulties and reunite with their children as soon as possible.",
"Accordingly, there has been a violation of Article 8 of the Convention.",
"ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE DURATION OF THE PROCEEDINGS",
"The applicants also complain that the length of the “proceedings concerning their children” has breached the principle of “reasonable time” as provided for in Article 6 § 1 of the Convention, which reads as follows:",
"“[E]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [ ... ] .”",
"First, the Court notes that on 27 April 2006, Law No. 160/2006, which provides for the possibility of awarding compensation for moral damage resulting from the length of the proceedings, entered into force in the Czech Republic. However, the Court does not deem it necessary to consider in this case the question whether this remedy is effective within the meaning of Article 13 of the Convention, and whether the applicants should exercise it, since their grievance is in any event inadmissible for another reason indicated below.",
"The Court reiterates that the reasonableness of the length of proceedings depends on the circumstances of the case and on the criteria established by the Court ’ s case law, in particular the complexity of the case, the conduct of the applicant and that of the competent authorities. On this last point, the stakes of the dispute for the person concerned come into play. It is therefore essential to deal expeditiously with child custody cases; a delay in a given phase may be tolerated provided that the total duration of the proceedings is not excessive ( Nuutinen v. Finland, no 32842/96, § 110, ECHR 2000-VIII, Voleský v. Czech Republic, No. 63267/00, § 102, 29 June 2004).",
"In the present case, the Court considers that the period to be considered began on 2 February 2001, the date on which the tribunal initiated the proceedings relating to the custody of the applicants ’ children. These proceedings ended with the decision of the Constitutional Court of 28 January 2004. It therefore lasted almost three years for three courts, two of which ruled on several occasions. It should be noted in this regard that the proceedings concerning the applicants ’ claims for the annulment of the placement, filed after the lodging of the application with the Court, were a separate proceeding following a change in circumstances alleged by the applicants.",
"The Court considers that the present case was rather complex, in particular because of the need to monitor the evolution of the applicants ’ situation and to reassess the best interests of the children accordingly. As for the behaviour of the lower courts, it is clear that they have acted at a rapid pace. Thus, the first judgment was rendered in the case one month after the initiation of the proceedings; it was vacated six months later (see paragraph 13 above). Then, the District Court only took three months to render the following decision extinguishing the proceedings, which was annulled three months later, on 30 January 2002 (see paragraph 14 above). The new judgment, rendered on 18 April 2002, was confirmed four months later, on 22 August 2002. Therefore, the only specific delay that the authorities could be held responsible for is the lapse of one year and two months between the applicants ’ submission of their constitutional appeal, on 20 November 2002, and the decision of the Constitutional Court of 28 January 2004. However, the issues to be determined by that court were complex in nature, given that part of the appeal (concerning consent to adoption) was upheld, and the decision to place the children in a public establishment became final with res judicata effect of the judgment of 22 August 2002. While it is true that during this whole period (and even after) the applicants continued to be separated from their children and that the stakes were high for them, the Court notes that the prolonged interference in the exercise of the right to respect for family life has already been examined under Article 8 of the Convention.",
"It follows that this ground must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.",
"ON THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION",
"The applicants also allege that the attitude of the authorities in this case reflects a discriminatory approach towards them, motivated by their social origin and their poverty.",
"“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"The Government contests this argument.",
"The Court notes that this ground, closely related to that raised under Article 8, is based on the same facts as those examined above. It must therefore be declared admissible. Nevertheless, in view of the conclusion reached by the Court under Article 8, it considers that there is no need to examine the case under that provision.",
"ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"Under Article 41 of the Convention,",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"The applicants claim 1,000,000 Czech crowns (CZK), or approximately 35,150 euros (EUR), for moral damage which they and especially their children allegedly suffered. They ask that the State compensate them for the damage sustained in the amount of 200,000 CZK (7,030 EUR) for each of their children.",
"The Government submits that the applicants make their claim on behalf of their children, which amounts to an actio popularis because the present application has not been lodged by their children. In the alternative, the Government asks the Court to award the applicants an amount corresponding to its case law practice on the subject.",
"The Court notes that the applicants ’ claims relate to compensation for the moral damage that they and their children suffered. It considers that, in so far as the question of non-pecuniary damage requires a fair approach, it would be too formalistic to reject those claims on the ground that the persons concerned claim financial means for their children, and therefore accepts the request in principle.",
"The Court is of the opinion that the applicants have suffered undeniable moral injury as a result of their separation from their children. Given the circumstances of the case and ruling on an equitable basis as required by Article 41, the Courts awards them jointly the amount of 10,000 euros (EUR).",
"Costs and expenses",
"The applicants, who were granted legal aid, do not claim reimbursement of costs and expenses. The Court considers that it is therefore not necessary to rule on this point (see, mutatis mutandis, Králíček v. Czech Republic, No. 50248/99, § 41, 29 June 2004.",
"Default interest",
"The Court considers it appropriate to base the default interest rate on the interest rate on the European Central Bank ’ s marginal lending facility by three percentage points."
] |
93 | Kearns v. France | 10 January 2008 | This case concerned a request, outside the relevant statutory time-limit, for the return of a child born to the applicant but registered anonymously. Married and living in Ireland, the applicant had given birth in France to a baby girl, from an extramarital relationship. She complained in particular of the shortness of the two-month period within which she was entitled to claim her child back. She also submitted that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions, arguing that she had not been provided with sufficient linguistic assistance to be able to understand all the relevant procedures and time-limits. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. Regarding the time-limit for withdrawal of consent, it found that the reflection period provided for under French law sought to strike a balance and ensure the right proportionality between the conflicting interests. The applicant had further been 36 years old at the time, had been accompanied by her mother and had had two long interviews with the social services after the birth. According to the Court, the French authorities had also provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the consequences of her choice. All the necessary steps had thus been taken to ensure that the applicant understood the precise implications of her actions and the French State had not failed in its positive obligations towards her under Article 8 of the Convention. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1966 and lives in Dublin. She is married to T.",
"8. On 8 February 2002 she went to Seclin Hospital, in France, together with her mother and a French lawyer, to request anonymous registration of the forthcoming birth of her child ( accouchement sous X ).",
"9. She was admitted to the maternity ward on 17 February 2002, and on 18 February 2002 she gave birth to a girl, K., from an extramarital relationship with Mr Byrski.",
"10. On 19 February 2002 she had an interview lasting half a day with the social services, in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital. On the same day she signed a record of the child ’ s placement in State care in accordance with Article L. 224-5 of the Social Action and Families Code, handing over a folder intended for the child, which contained a letter, photographs and administrative documents.",
"11. In the record she indicated that she wished to have the child taken into State care, to request secrecy and to give her consent to adoption under Article 348-3 of the Civil Code. She stated that the child was born out of wedlock and was not recognised by the father.",
"12. The section entitled “Reasons for the placement” contained the following details :",
"“[The applicant] wishes to keep secret the reasons why she is giving her child up for adoption. She would prefer to hand us the attached documents, which will be released to the child at her request on reaching the age of majority (letter, photos, official documents). Secrecy has been requested purely to ‘ protect her baby ’ from the violent and unbalanced biological father.”",
"13. The section entitled “Information on the placement” stated:",
"“ We have informed her of the following : ...",
"(3) Time-limits and conditions for return of the child:",
"– a child who is claimed back within a period of two months by the parent who entrusted the child to the Child Welfare Service will be returned to that parent without any further formalities ( Article L. 224-6, paragraph 2, of the Social Action and Families Code ).",
"– if the child has a second parent who did not entrust him or her to the service and who claims the child back within a period of six months, the child will be returned to that parent without any further formalities ( same Article ).",
"– once these periods have expired ( two months if the sole parent or both parents entrusted the child to the service; six months if the second parent did not entrust the child to the service), an application for judicial review of the child ’ s placement in State care may be lodged, within thirty days from the date of the formal registration, with the tribunal de grande instance ( Article L. 224-8 of the Social Action and Families Code ).",
"– beyond these time-limits:",
"* if the child has been placed for adoption, any application to have the child returned will be inadmissible (Article 352 of the Civil Code) ...",
"(6) Conditions for withdrawal of consent to adoption (Article 348-3, paragraphs 2 and 3, of the Civil Code)",
"We have given her the following :",
"– a notice setting out the effects of placement in State care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent;",
"– a model letter requesting the return of the child and/or withdrawing consent to adoption, if consent has been given.”",
"14. On the same day (19 February 2002) the applicant gave her consent to the child ’ s adoption. The form of consent stated, inter alia :",
"“I ... certify that I have been informed:",
"...",
"2. about the effects of consent to adoption, namely:",
"– that the placement is secret,",
"– that I forfeit all my rights over the child,",
"– that placement for adoption constitutes a bar to any recognition, declaration of filiation or application for recovery.",
"3. that this document will become FINAL after a period of TWO MONTHS, on 20 April 20 02, and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code).",
"I hereby declare that I formally consent to the adoption of my child ..., leaving the choice of the adopter to the Child Welfare Service.",
"I acknowledge that I have received:",
"– a notice setting out the time-limits and conditions for the return of my child,",
"– a model letter for withdrawal of consent to adoption and to the record of the child ’ s placement in State care.”",
"15. On 20 February 2002 the applicant had a further interview lasting half a day with the social services, in the presence of a doctor acting as an interpreter, during which, at her request, various matters relating to the record signed the previous day were discussed.",
"16. On 7 May 2002, after approval had been given by the Family Council, the chairman of the Nord département council, as the official guardian of children in State care, placed K. in the care of Mr and Mrs L.- B. with effect from that date with a view to her full adoption.",
"17. In the meantime, Mr Byrski, the child ’ s biological father, had applied to the Dublin Circuit Family Court for recognition of his rights over the child. In decisions of 19 July and 14 and 28 August 2002 the Circuit Family Court directed that the adoption process in France should not proceed any further, that the name and a photograph of the child were to be sent to Mr Byrski and that its decisions were to be forwarded to the Nord département council and the French social services.",
"18. On 25 and 26 July 2002 the applicant went to the hospital ’ s maternity ward and subsequently to the French social services, seeking the return of the child. According to a note drawn up by the social services, her request was based on two reasons: firstly, the biological father had learned of the child ’ s birth in the meantime and had brought an action in Ireland, and secondly, she had managed to persuade her husband to recognise the child. Her request was refused because the two-month time-limit for withdrawing consent had expired.",
"19. The applicant then applied to the Lille tribunal de grande instance, seeking the annulment of the decision to give the child up and an order for her return. She submitted that the consent she had given on 19 February 2002 had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously, since the process had been explained to her without an interpreter being present. She argued that French law contravened Articles 13 and 14 of the Convention.",
"20. The child ’ s biological father, Mr Byrski, intervened in the proceedings.",
"21. In a judgment of 31 October 2002 the court dismissed the applicant ’ s claims, holding as follows:",
"“In support of her application for the annulment of the decision to give up the child born on 18 February 2002 and for the child ’ s return, Ms Kearns alleges that an error was committed as to the meaning and scope of the document of 19 February 2002.",
"Ms Kearns, an Irish national living and working in Dublin, came to the maternity ward in Seclin to give birth on 18 February 2002. On that occasion she expressed the wish for her admission and her identity to be kept secret.",
"The exercise by any woman of this right, which is enshrined in Article 341-1 of the Civil Code and which the legislature has to date had no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002.",
"It appears from the evidence before the court ... that at least two lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth. These interviews took place in the presence of English speakers, and Ms Kearns, who chose to come to France to give birth, cannot expect the social services to have offered anything more in this respect, particularly not the presence of an official interpreter, which is not provided for or required by any statutory instrument. Furthermore, it appears from the proceedings ... and from the written submissions summarising her counsel ’ s address ... that Ms Kearns was taken to hospital by a lawyer; she had therefore clearly sought legal advice prior to the birth.",
"Accordingly, no matter what psychological state the applicant may have been in, like any woman opting to give birth in these circumstances, it appears that Ms Kearns was nevertheless fully aware of both the immediate and the future implications of her actions and decisions. She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into State care, and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way; moreover, the question of consent is not applicable from a civil - status perspective.",
"In addition, as regards the formal propriety of the document of 19 February 2002, once a child is entrusted to the social services, the latter assume a number of obligations, including the provision of information ... It appears from the record of the child ’ s placement, which contains entries whose existence is not disputed, that the social services fulfilled their obligation to provide information on a child ’ s placement in State care and the ensuing legal effects. Such information was, moreover, provided in English, and the notice and model letter requesting the return of the child were indeed given to Ms Kearns. Furthermore, Ms Kearns fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date.",
"Ms Kearns clearly expressed her wish that the child should never be able to have legal ties to her. Moreover, she did not withdraw her consent within the two-month period. It should be noted in this connection that this right is strictly personal; accordingly, no action by a third person may be treated as an action to withdraw consent, that being the sole prerogative of the mother, or interrupt the relevant period.",
"Accordingly, there are no grounds for declaring null and void the record of 19 February 2002, which served as an entirely valid basis for the placement in State care (first provisionally and later with final effect) of the child born on 18 February 2002 with no established parentage ...",
"Since the mother did not apply for the return of the child within two months after giving her up, the child, who has no legally established parentage, was able to be placed with foster parents by the State authorities with a view to her adoption under Article 351 of the Civil Code.",
"Such placement for adoption, by virtue of the provisions of Article 352 of the Civil Code, constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition. The first ground of appeal must therefore be declared ineffective.",
"Ms Kearns further alleges a violation of Articles 13 and 14 of the European Convention on Human Rights.",
"As stated above, Ms Kearns gave birth ... while wishing to keep the birth and her identity secret, a right enshrined in Article 341-1 of the Civil Code and given effect by the Social Action and Families Code.",
"More generally, these Articles govern the conditions for giving up a child, for consent to adoption or for anonymous registration of a birth, as well as the conditions and procedures applicable in the event of repudiation and/or withdrawal of any of these measures.",
"They strike a delicate balance between the rights of a mother, which the legislature has to date had no intention of reconsidering, to give birth anonymously with the consequences that entails, and the rights of the foster parents and of the child, whose rights are now framed in such a way as to allow him or her access to more information, if he or she so desires, but in whose interests stability and certainty, both psychological and legal, must be sought, if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures.",
"The instant case thus cannot be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by the European Convention on Human Rights, or indeed our national law, within the meaning of Article 14 of the Convention. Similarly, no matter how short they are, time-limits do exist in French law for bringing an action in the ordinary courts, constituting, within the meaning of Article 13 of the Convention ..., an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption.”",
"22. The applicant appealed. In a judgment of 22 September 2003 the Douai Court of Appeal set aside the first-instance judgment. After reiterating the content of the record of 19 February 2002, and in particular the information it provided, the court held:",
"“Paragraph 3 of the section on information thus expressly mentions the existence of two time-limits for the child ’ s return without any further formalities, one being two months (the only possible limit that could apply in the instant case), the other being six months, where the second parent has not entrusted the child to the social services.",
"This six-month time-limit is mentioned on two further occasions, firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the two-month and six-month periods, a court action may still be brought.",
"This information could have misled Ms Kearns ... since in reality the six-month time-limit applicable under Article L. 224-6 of the Social Action and Families Code in the circumstances referred to in Article L. 224-4 did not apply in the instant case, there being no established paternity as the mother had registered the birth anonymously, and the placement therefore came under point (1) of Article L. 224-4.",
"Ms Kearns, an Irish national who is a native English speaker and does not speak French, could not have known the consequences in French law of anonymous registration of the birth, in terms of her rights and those of the biological father, and the information given was in no way capable of enlightening her in a clear and precise manner.",
"Having been informed of the existence of a six-month time-limit where ‘ the child has a second parent who did not entrust him or her to the service ’, she may legitimately have thought, in the light of the information set out in the record, that this time-limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure.",
"It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in English of the information given in French to Ms Kearns ... However, a translation of this nature, which was provided by a person who used English only occasionally and did not have specific legal knowledge, and which, moreover, was based on particularly ambiguous information as to the time-limits, did not enable Ms Kearns ... to have access to proper information about her rights regarding the procedures for withdrawing consent.",
"It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous, and was set out in a pre-printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. 224-4 of the Social Action and Families Code for the taking of a child into State care; that reference was made to a six-month time-limit not applicable in her case; and that, moreover, being an native English speaker, the mother was not effectively informed of the procedures for the return of her child and of the strict two-month time-limit that applied in her case.",
"Furthermore, it has not been shown in any way that Ms Kearns ... otherwise received any clear information before the record was signed as to her right to recover the child.",
"The note by Ms F. – who also drew up the record in issue – besides having no evidential value, since it was written by a party to the proceedings, does not contain any clarification as to the information given to Ms Kearns ... about the time-limit for withdrawing consent.",
"Similarly, the fact that Ms Kearns ... was in contact with a French lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the two-month time-limit ...",
"Ms Kearns ’ belief ... in the possibility of recovering the child within a six-month period is corroborated by the request she made in person on 25 and 26 July 2002 to the Nord health and social services department, citing this time-limit, and by the subsequent letters from her lawyer, which also state that his client thought that she could take her child back within such a period.",
"Having regard to all these considerations, it appears that Ms Kearns ... placed her child in State care while believing – legitimately, in view of the ambiguous information she had received when signing the record of the placement – that she could take her back within a period of six months and that this time-limit also applied to Mr B., who had, moreover, instituted proceedings in Ireland on 9 April 2002.",
"This error as to the time-limit for the return of the child concerns a significant element of her consent to the child ’ s placement in State care, especially as the provisions of Article L. 224-5 of the Social Action and Families Code require precise information on the subject to be given to the mother.",
"In these circumstances, the application for the record of the child ’ s placement of 19 February 2002 to be declared null and void must be allowed.",
"... seeing that the handing over of the child to the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, the child ’ s placement in State care is to be retrospectively annulled and cannot therefore have any legal effect.",
"Accordingly, the application for the child to be returned to Ms Kearns ... should be allowed, without there being any need to address the subsidiary arguments she submitted in support of that application.",
"Pursuant to Article 334-8 of the Civil Code, parental ties shall be established between Ms Kearns ... and the child to whom she gave birth in the maternity ward of Seclin Hospital on 18 February 2002 and a reference to this judgment shall be entered in the register of births, deaths and marriages for the town of Seclin.”",
"23. In a letter of 24 September 2003 the applicant ’ s lawyer asked the prefect to enforce the judgment and to return the child to her mother. No action was taken on this request.",
"24. The prefect for the département of Nord appealed on points of law, arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously, it was not necessary to obtain her consent for the child to be taken into State care.",
"25. In a judgment of 6 April 2004 the Court of Cassation allowed the appeal, holding as follows:",
"“[Article L. 224-4, point (1), of the Social Action and Families Code] provides that children whose parentage has not been established or is unknown and who have been entrusted to the Child Welfare Service for more than two months are deemed to have been taken into State care.",
"On 18 February 2002 Mrs T. (née Kearns ) gave birth anonymously. On 19 February 2002 a record of the child ’ s placement in State care with the Child Welfare Service was drawn up in accordance with Article L. 224-5 of the Social Action and Families Code. On 7 May 2002 the child was placed for adoption after the Family Council for Children in State Care had given its approval on 25 April 200 2. On 25 July 2002 Mrs T. unsuccessfully sought to have the child returned to her. In applications of 22 August and 10 September 2002 she brought proceedings against the prefect of the département of Nord, seeking the return of the child.",
"In allowing her claim, the Court of Appeal held that the child ’ s placement with the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, seeing that when the record was signed Mrs T. had received only ambiguous information about the period within which she could take her child back.",
"In so holding, despite the fact that in the absence of recognition, the child ’ s parentage was not established, such that Mrs T. ’ s consent was not required when the child was taken into care .. ., the Court of Appeal breached the provision cited above.”",
"26. The Court of Cassation therefore quashed and annulled the Court of Appeal ’ s judgment in its entirety and, applying Article 627, paragraph 2, of the New Code of Civil Procedure ( by which it may put an end to the dispute by applying the appropriate legal rule), dismissed the applicant ’ s claims.",
"27. The full adoption procedure, which had been suspended, was resumed by Mr and Mrs L.-B. In a judgment of 17 June 2004 the Lille tribunal de grande instance allowed their application and made a full adoption order in respect of the child."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Domestic law",
"1. Legislation",
"28. The history and development of the system of anonymous registration of births in France is set out in Odièvre v. France ([GC], no. 42326/98, §§ 15-16, ECHR 2003 ‑ III).",
"(a) Social Action and Families Code (as resulting from Law no. 2002-93 of 22 January 2002)",
"29. The following provisions of the Social Action and Families Code are relevant to the present case:",
"Article L. 224-4",
"“The following shall be taken into State care:",
"(1) children whose parentage is not established or is uncertain and who have been entrusted to the Child Welfare Service for more than two months; ...”",
"Article L. 224-5",
"“Where a child is entrusted to the Child Welfare Service in the circumstances referred to in Article L. 224-4, points (1), (2), (3) and (4), a record shall be drawn up.",
"It shall mention that the parents in respect of whom the child ’ s filiation has been established, the child ’ s natural mother or natural father or the person handing the child over have been informed about:",
"(1) the measures introduced, in particular by the State, the local authorities and the social-security bodies, to help parents to raise their children themselves;",
"(2) the rules governing placement in State care in accordance with this Chapter;",
"(3) the time-limits and conditions subject to which the child may be taken back by the father or mother;",
"(4) the possibility of leaving behind any information concerning the health of the father and mother, the child ’ s origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service.",
"Furthermore, where the child is entrusted to the service by the father or mother in accordance with points (2) or (3) of Article L. 224-4, the parent or parents concerned must be asked to consent to the child ’ s adoption; such consent shall be noted in the record, which must also mention that the parents have been informed of the time-limits and conditions in which they may withdraw their consent, in accordance with the second and third paragraphs of Article 348-3 of the Civil Code.”",
"Article L. 224-6",
"“The child shall be deemed to have been provisionally taken into State care on the date on which the record referred to in Article L. 224-5 is drawn up. Guardianship arrangements shall be made with effect from the date of such declaration.",
"However, within a period of two months from the date of the provisional placement in State care, the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service. This period shall be extended to six months, in the circumstances specified in Article L. 224-4, point (3), for whichever parent did not entrust the child to the service.",
"Beyond these periods, the decision to agree to or refuse the return of a child in State care shall, subject to the provisions of Article 352 of the Civil Code, be taken by the official guardian, with the agreement of the Family Council. In the event of a refusal, the persons concerned may apply to the tribunal de grande instance .”",
"(b) Civil Code",
"30. The relevant provisions of the Civil Code are worded as follows:",
"Article 347",
"“The following may be adopted:",
"(1) children in respect of whom the mother and father or the Family Council have validly consented to adoption;",
"(2) children in State care;",
"(3) children declared abandoned in the circumstances provided in Article 350.”",
"Article 348-3",
"“Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated, or before a French or a foreign notary, or before French diplomatic or consular officials. It may also be received by the Child Welfare Service if the child has been entrusted to the service.",
"Consent to adoption may be withdrawn within a period of two months. Withdrawal of consent shall be effected by means of a registered letter with recorded delivery, addressed to the person or the service that received the consent. The handing over of the child to the parents on request, even a verbal request, shall also be treated as proof that consent has been withdrawn.",
"If, on the expiry of the two-month period, consent has not been withdrawn, the parents may still request the return of the child, provided that the child has not been placed for adoption. If the person who has received the child refuses to give him or her back, the parents may apply to the court, which shall determine, having regard to the child ’ s interests, whether the return of the child should be ordered. The child ’ s return shall invalidate the consent to adoption.”",
"2. Case-law",
"31. The Court of Cassation takes the position that, where a mother gives birth anonymously, there are no established parental ties between her and the child and that, accordingly, her consent to adoption is not required.",
"32. Thus, in a judgment of 5 November 1996 ( Bulletin 1996 I no. 368, p. 259) in a case concerning a request for the return of an anonymously registered child born to a minor, the Court of Cassation quashed the judgment of the Court of Appeal, which had annulled the record of the child ’ s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility. It held as follows:",
"“In so holding, despite the fact that in the absence of recognition, parental ties had not been established, so that it was not necessary to obtain Ms Y ’ s consent when the child was entrusted to the Child Welfare Service, the Court of Appeal breached the provision cited above [Article 61, point (1), of the Family and Welfare Code].”",
"33. Conversely, in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth, the Court of Cassation, relying in particular on the New York Convention on the Rights of the Child, quashed and annulled the judgment of the Court of Appeal, which had declared inadmissible the father ’ s application for the return of the child. It gave the following reasons:",
"“... in so holding, despite the fact that, since the child had been identified by Mr X ... on a date prior to the consent to adoption, the child ’ s paternity had been established with effect from the date of the birth as a result of this prenatal recognition, so that the Family Council for Children in State Care, which had been informed of the recognition, could no longer ... validly consent to the child ’ s adoption, consent being the sole prerogative of the biological father, the Court of Appeal, disregarding the child ’ s right to know its declared father, breached the provisions cited above.” (Court of Cassation, First Civil Division, 7 April 2006, Petites affiches 14-17 July 2006)",
"B. International and comparative law",
"1. International and European law",
"(a) United Nations Convention on the Rights of the Child",
"34. Article 21 of this Convention provides:",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;",
"(b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin;",
"(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;",
"(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;",
"(e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.”",
"(b) Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption",
"35. This convention, which is not directly applicable to the present case since it concerns inter - country adoption, provides in Article 4 that the persons whose consent is necessary for adoption must “have been counselled as may be necessary and duly informed of the effects of their consent”, and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn. In addition, the consent of the mother, where required, must have been given only after the birth of the child.",
"(c) European Convention on the Adoption of Children",
"36. This Council of Europe convention came into force on 24 April 1968. France has signed it but has not ratified it. Article 5 provides:",
"“1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:",
"(a) the consent of the mother ...",
"4. A mother ’ s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.”",
"37. According to the explanatory report, the object of paragraph 4 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored.",
"38. The convention is currently undergoing a revision. Article 5 of the draft revised convention is worded as follows:",
"“1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:",
"a. the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; ...",
"2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. ...",
"5. A mother ’ s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.”",
"The explanatory report [1] states the following:",
"“33. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing. ...",
"38. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child ’ s birth.",
"39. Paragraph 6 contains a definition of the terms ‘ father ’ and ‘ mother ’. Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.”",
"2. Comparative law",
"(a) Procedures for obtaining the biological parents ’ consent",
"39. Most European legal systems provide that consent must be obtained by a judge or notary independently of the placement process. Some countries allow the parents ’ consent to be obtained by the social services responsible for the child, [2] by the director of the institution in whose care the child is placed [3] or by the supervisory authority. [4]",
"40. As regards the provision of information to the biological parents, some national regulations require adoption agencies to provide information on the legal effects of adoption, the adoption process and the other means of assistance available to them. [5] In other countries [6] this obligation falls directly to the judge, who must inform the parents of the legal effects of adoption and of their right to withdraw consent.",
"(b) Time at which the biological parents ’ consent is obtained",
"( i ) Period of reflection",
"41. In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30-32 above), most legal systems [7] envisage a period of not less than six weeks, sometimes extending to as much as three months. [8]",
"42. Some countries simply make the validity of consent subject to “ the recovery of the mother after giving birth ” [9] or to the condition that it is given after the birth. [10] Lastly, the legislation in other countries [11] makes no provision for a period of reflection, but “prenatal” consent remains prohibited by law in the vast majority of legal systems.",
"(ii) Time-limit for withdrawing consent",
"43. Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued [12] and others until the adoption process has been initiated, [13] whereas others lay down fixed periods whose length varies from country to country. [14] Lastly, in some countries [15] the biological parents ’ consent is irrevocable.",
"44. The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child ’ s return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child ’ s return on the basis of the child ’ s best interests.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"45. The applicant alleged a breach of her right to respect for her private and family life as enshrined in Article 8 of the Convention, which provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"46. The Government contested that view.",
"A. Admissibility",
"47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"( i ) Length of the period allowed for withdrawing consent",
"48. The applicant submitted that the period of two months within which consent could be withdrawn under the second paragraph of Article L. 224-6 of the Social Action and Families Code was too short and constituted disproportionate interference with the right of the parents and children to be together in a family environment. She contended that the Government ’ s arguments on this point were unconvincing.",
"49. Although it was in the interests of the child and the child ’ s future adoptive family that the uncertainty surrounding the planned adoption should not persist, the fact remained that an excessively short period for withdrawing consent was harmful both to the child and to the parents. With regard to the child, the painful psychological effects of adoption should not be overlooked, seeing that before reaching adulthood, many children or adolescents experienced the suffering of being abandoned and pursued the aim of restoring contact with their biological parents. Such suffering could only be exacerbated if the child discovered that, a few months after the birth, the natural mother had unsuccessfully sought to take him or her back.",
"50. With regard to the parents, the state of psychological distress affecting a mother who was compelled to give her child up to the social services for adoption had to be taken into consideration. The applicant pointed out in that connection that commentaries on the Court of Cassation ’ s judgment of 6 April 2004 had, to varying degrees, highlighted the insufficient length of the relevant period. Professor Monéger, for example, had argued that French legislation did not take sufficient account of the situation of the woman who had given birth [16] and Professor Bicheron had proposed that, without calling the two-month time-limit into question, the legislation should envisage the possibility of allowing consent to be withdrawn outside this time-limit where there had been exceptional circumstances surrounding the pregnancy or birth, provided that this was done within a reasonable period which would have to be defined. [17]",
"51. The applicant submitted in conclusion that the two-month period in which she had been entitled to claim her child back could not be regarded as sufficiently long to guarantee her right to respect for her family life.",
"( ii ) Information provided to the applicant",
"52. In the applicant ’ s submission, the positive measures which the State authorities had to take for the rights guaranteed under Article 8 of the Convention to be effective included making all the necessary arrangements to ensure that a non-French-speaking mother registering a birth anonymously understood the precise implications of her actions. It was therefore unacceptable for the mother not to be given a clear and accurate translation of the legal provisions concerning her, a requirement made even more essential by the technical nature of the legislation.",
"53. With regard to the present case, she contended that the Government were incapable of proving that she had received sufficient information from the social services. Although the Government had asserted that a welfare officer had translated the gist of the information that should have been provided to her, that in itself was insufficient, seeing that French legislation was anything but straightforward as regards the period within which the biological mother could withdraw consent, as was underlined by Professor Murat ’ s commentary on the Court of Cassation ’ s judgment of 6 April 2004.",
"54. That being so, the applicant contended that the task of providing information to a foreign mother could not be left to a welfare officer with no indication of possessing the necessary legal knowledge to understand the subtleties of the French legislation himself or herself or sufficient knowledge of English to translate complex legal notions with the clarity and accuracy required to avoid any misunderstanding or ambiguity.",
"55. Ultimately, the applicant argued, the Government had entirely failed to show that she had been provided with sufficient linguistic assistance to enable her to understand the procedures and time-limits for claiming her child back. Full compliance with this duty to impart information had been particularly essential since the French legislation, as construed by the Court of Cassation, made no provision for any means of redressing a breach of that duty. In that connection she cited a number of articles on legal theory and commentaries on the Court of Cassation ’ s judgment that were critical of the legislation in question.",
"56. The applicant submitted that, since there was a consensus that the legislation as it currently stood was flawed, the French authorities should have been particularly attentive to the need to do everything possible to ensure that a foreign, non-French-speaking mother was able to understand precisely her rights and obligations vis-à-vis her child once the child had been entrusted to the social services; she concluded that that had not been so in her case, as indeed the Court of Appeal had acknowledged.",
"(b) The Government",
"57. As a preliminary remark, the Government stated that they did not dispute the applicability of Article 8 of the Convention to the present case, at least with regard to the right to respect for private life. They also accepted that there had been interference with the applicant ’ s rights, but contended that the interference – in particular, the existence of a two-month time-limit beyond which the parent could no longer seek the return of a child whose placement in State care he or she had requested – satisfied the requirements of foreseeability, legitimacy and necessity for the purposes of Article 8.",
"(i ) Length of the period allowed for withdrawing consent",
"58. The Government submitted that the interference in issue was prescribed by law. It followed from Articles L. 224-4 to L. 224-6 of the Social Action and Families Code, taken together, that a child whose birth was registered anonymously was provisionally taken into State care on being entrusted to the Child Welfare Service, and could be taken back by the mother without any further formalities during a period of two months. Once that period expired, a full adoption order could be made in respect of the child.",
"59. The Government emphasised that the interference had pursued the legitimate aim of protecting the rights and freedoms of others, and more specifically had been in the child ’ s best interests. The provisions cited were intended to ensure stability for the child, both legally and psychologically, within a foster home. The child ’ s interests dictated that he or she should quickly be able to enjoy stable emotional relations in a new family and should have the benefit of parental ties, the main reason why the Adoption Reform Act of 5 July 1996 had reduced the time-limit for withdrawing consent from three to two months.",
"60. The Government submitted that where legal or biological parents relinquished their rights, they forfeited their family life with the child they had abandoned, and where the child was given up the day after being born, as in the instant case, no family life had been established. The child-welfare professionals interviewed in the context of the 1995 report on adoption by Professor Mattei had pointed out that it was in the interests of an abandoned child to enjoy stable emotional relations within a new family as quickly as possible, an observation borne out by subsequent studies on attachment disorders and their damaging consequences for the child.",
"61. The legislature had sought to confer on a child ’ s placement for adoption (the point from which the biological parents could no longer claim the child back) the same legal effects as adoption itself in order to make the child ’ s position more stable. The child ’ s right to family life therefore dictated that the time-limit for withdrawing consent should not be excessive. The relevant provisions also sought to protect the right of the adoptive family to lead a stable family life (they referred to Odièvre, cited above, § 44).",
"62. The Government further submitted that the interference in issue had been necessary in a democratic society within the meaning of Article 8 § 2. Citing the Court ’ s case-law (in particular, Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, and Odièvre, cited above), they observed that, in striking a fair balance between competing interests, the Court afforded States a certain margin of appreciation and that, in assessing whether or not they had overstepped that margin, it took particular care to ensure that the child ’ s best interests were preserved. In the instant case the Government submitted that, in such a delicate situation as the abandonment of a child by a mother who wished the birth to be registered anonymously, the French legislation attempted to square the various interests at stake: those of the child, the mother and the adoptive family.",
"63. In assessing the two-month time-limit for withdrawing consent, regard should therefore be had to the absence of pre-existing family life with the biological mother, who had voluntarily given up all family life with her child, to the child ’ s physical and psychological well-being and to the legal and emotional stability desired by the adoptive parents. The time-limit appeared sufficient to enable parents to reflect and to revise their decision if they so desired, especially as the social services provided them with detailed and accurate information about the implications of their actions. The social services had also noted that consent was generally withdrawn either in the first few or in the last few days of the period in question, and that this would remain the case if the period were shortened or extended.",
"64. Arguing in addition that the period within which consent could be withdrawn under French law was somewhat longer than the period provided for in other legal systems (for example, in Spain, Portugal, Poland, Quebec, Great Britain and Switzerland), the Government concluded that the time-limit satisfied the requirements of Article 8 of the Convention.",
"(ii ) Information provided to the applicant",
"65. The Government submitted that the applicant, who lived in Ireland and had no ties in France, had made a free and informed choice to go to France to take advantage of the national legislation on anonymous registration of births and adoption. In Irish law, the principle mater semper certa est applied; affiliation was established by the fact of the child ’ s birth. If the applicant had given birth in Ireland, she would have been the child ’ s legal mother without having to recognise her, and the biological father would have been able to assert his rights without any difficulty. It was precisely to avoid that scenario that she had wanted to come to France, in order to keep secret the birth of a child resulting from adultery and to keep her marriage intact, while at the same time excluding the biological father, who was described as “violent and unbalanced” in the record of the child ’ s placement of 19 February 2002.",
"66. The Government submitted that, contrary to what she had alleged, the applicant, who had been 36 years old at the time, had been entirely aware of the meaning and implications of her actions. She had also been fully informed about the anonymous registration procedure and its practical details. The allegation that the decision had merely been provisional, giving her the chance to overcome temporary problems, was contradicted, in the Government ’ s view, by the fact that, prior to giving birth, she had sought advice from a lawyer, who had taken her to hospital, and that she had taken care to bring documents with her to be handed over to her daughter on reaching the age of majority if she ever wished to know her origins.",
"67. The Government submitted that, even supposing that the applicant had not been fully aware of her actions before arriving in France, she had in any event received clear and extensive information after the birth about the procedure provided for in Articles L. 224-4 to L. 224-6 of the Social Action and Families Code. That was attested, firstly, by the record of the child ’ s placement in State care and, secondly, by the judgment of the Lille tribunal de grande instance, which noted that the applicant had had at least two lengthy interviews with the social services, during which she had been told about the conditions and effects of anonymous registration of the birth. Although she had not had access to an official interpreter, which was not required by French law, she had been assisted by English-speaking staff during the interviews. Furthermore, in his submissions to the Court of Appeal, the prefect of the département of Nord had referred to the observation by the social services that the applicant “had difficulty in accepting the idea that her daughter would not be placed with adoptive parents immediately after leaving the maternity ward but would be placed temporarily in a foster home or a nursery for two months. In that connection, it was explained to her at length that the purpose of this procedure was to ensure the best possible preparation for the planned adoption, and also to comply with the statutory two-month time-limit for withdrawing consent, which in her case would expire on 20 April 2002.”",
"68. In the Government ’ s submission, the applicant could not maintain that the social services had failed in their duty to provide information, or that the information imparted, particularly as regards the time-limit for withdrawing consent, had been ambiguous. Lastly, the Government observed that during the two-month period in question, the social services had not been made aware of any incidents suggesting that the applicant wished to or was going to revise her decision. Nothing had been heard from her until 26 July 2002, several days after the Dublin Circuit Family Court ’ s initial decision of 19 July 2002, on an application by the biological father, ordering the applicant to take all necessary steps to ensure that the adoption procedure was suspended.",
"69. In those circumstances, the Government submitted that the information provided to the applicant in accordance with French legislation was capable of affording effective protection of her right to private and family life.",
"2. The third party ’ s submissions",
"70. Mr Byrski is the child ’ s biological father. As to the facts, he stated that he had had a relationship with Ms Kearns in 2001, during which time the child had been conceived, and that, having had no further contact with her after the relationship had ended in September 2001, he had made numerous approaches to the Irish administrative and judicial authorities (including his application to the Dublin Circuit Family Court ), in the belief that the child would be born in Ireland. Having learned in July 2002 that Ms Kearns had given birth in France, he had obtained an order from the Dublin court for the discontinuation of the adoption procedure and the return of the child to Ireland. From July 2002 he had contacted the French authorities, informing them that he was the child ’ s father and that he wanted the adoption procedure to be halted and the child returned to him. He outlined all the steps he had taken with the administrative and judicial authorities to that end (see paragraphs 17 and 20 above).",
"71. Mr Byrski submitted that his intention had always been to be a good father to his daughter and to look after her, but that the French authorities ’ interference had prevented him from having a normal family life with her.",
"3. The Court ’ s assessment",
"72. The Court considers in the first place that the relationship between the applicant and her child comes within the sphere of family life under Article 8 of the Convention (see V.S. v. Germany (dec.), no. 4261/02, 22 May 2007).",
"73. The Court further considers that the authorities ’ refusal of the request for the child ’ s return had a basis in law, namely Article 348-3 of the Civil Code and Article L. 224-6 of the Social Action and Families Code, and pursued the legitimate aim of protecting the rights and freedoms of others, in this instance the child.",
"74. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Odièvre, cited above, § 40; and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-...). The Contracting States will usually enjoy a wide margin of appreciation if the public authorities are required to strike a balance between competing private and public interests or Convention rights. This applies all the more where there is no consensus within the member States of the Council of Europe as to the relative importance of the interest at stake or as to the best means of protecting it (see Evans, cited above, §§ 77-81).",
"75. The Court further reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. The Court will therefore examine whether France, in handling the applicant ’ s action for recovery of her child, acted in breach of its positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, judgment of 23 September 199 4, Series A no. 299-A, p. 20, § 55; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002 ‑ VI).",
"(a) Length of the period allowed for withdrawing consent",
"76. The applicant complained of the shortness of the two-month time-limit provided for in the second paragraph of Article L. 224-6 of the Social Action and Families Code for withdrawing consent to adoption.",
"77. As noted in paragraphs 39-44 above, the Court observes that there is no consensus among the member States of the Council of Europe regarding adoption, provision being made for a period of reflection in some countries but not in others, such as France. Similarly, as regards the time-limit for withdrawing consent, there is considerable diversity in the legislation of the member States that have provided for this possibility; some legal systems allow consent to be withdrawn until the adoption order is issued, whereas in others, by contrast, consent is irrevocable. In the States that have a fixed time-limit for withdrawing consent, it varies from ten days to three months. It cannot therefore be said that there is common ground in the member States ’ legislation and practice.",
"78. As regards the time-limit prescribed by French law, the Government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties.",
"79. As it found in Odièvre (cited above, § 44), the Court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (ibid., § 45). In striking a balance between these different interests, the child ’ s best interests should be paramount.",
"80. In this connection, the Court accepts the relevance of the arguments put forward by the Government on the basis of studies by child-welfare professionals, which have stressed that it is in the child ’ s interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, “ if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures ”.",
"81. Furthermore, while the two-month time-limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The Court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth (see paragraphs 86-87 below).",
"82. The Court lastly notes that in a recent case ( V.S. v. Germany, cited above), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case.",
"83. Having regard to the margin of appreciation which States must be afforded in view of the diversity in legal systems and traditions and in practice (see Odièvre, cited above, § 49, and Evans, cited above, § 77), the Court considers that the time-limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid.; see also, conversely and mutatis mutandis, Mizzi v. Malta, no. 26111/02, ECHR 2006 ‑ ... ).",
"84. Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the Court.",
"(b) Information provided to the applicant",
"85. The applicant submitted that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions. She argued, in particular, that she had not been provided with sufficient linguistic assistance to be able to understand the procedures and time-limits subject to which she could take her child back.",
"86. The Court observes that the applicant, an Irish national resident in Dublin, chose to give birth in France in order to take advantage of the possibility of registering the birth anonymously, which does not exist in Irish law. As is shown by the documents produced to the Court, she visited the maternity ward in the week prior to the birth, assisted by a lawyer and her mother. The presence of a legal specialist creates a presumption that the applicant was provided with legal information even before the birth.",
"87. On the two days following the birth, the applicant, accompanied by her mother, had two lengthy interviews (each lasting half a day) with the social services, in the presence of, respectively, a nurse and a doctor with knowledge of English, who had been made available by the hospital to act as interpreters. In this connection, the Court considers that Article 8 cannot be construed as requiring the authorities to ensure the presence of a qualified interpreter in such cases.",
"88. With regard in particular to the information received by the applicant about the time-limit for withdrawing consent, the Court observes that the record of K. ’ s placement in State care mentioned two periods (two months and six months), which, as the Court of Appeal found, could have given rise to confusion. However, the form of consent to adoption signed by the applicant on the same day expressly stated:",
"“I ... certify that I have been informed: ... that this document will become FINAL after a period of TWO MONTHS, that is, on 20 April 2002, and that during this period, the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code).”",
"89. Accordingly, no ambiguity could have persisted in the applicant ’ s mind as to the period within which she could seek the return of her child.",
"90. Lastly, it appears from the relevant documents that the applicant was given a notice outlining the time-limits and conditions for the return of the child, and a model letter for withdrawal of consent.",
"91. Having regard to the foregoing, the Court considers that in the present case the French authorities provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the implications of her choice and of the time-limits and procedures for withdrawing consent.",
"92. The Court therefore concludes that the State has not breached its positive obligations under Article 8 of the Convention in relation to the applicant.",
"There has therefore been no violation of that provision.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LACK OF AN EFFECTIVE REMEDY",
"93. The applicant submitted that she had been denied the right to an effective remedy, on account of the shortness of the time-limit for withdrawing consent and the insufficiently precise information she had been given about the time-limit. She relied on Article 6 § 1 of the Convention, the relevant parts of which provide:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”",
"94. In so far as this complaint is indissociable from the complaint under Article 8 of the Convention, which it has examined above, the Court considers that it should be declared admissible and that no separate issue arises under Article 6 § 1.",
"III. OTHER ALLEGED VIOLATIONS",
"A. Fairness of the proceedings",
"95. The applicant also complained, under Article 6 § 1 of the Convention, that the proceedings in the Court of Cassation had not been fair in that the advocate-general, who had not attended the hearing, had filed written submissions to which her lawyer had been unable to reply. Furthermore, in quashing the judgment in her case without remitting it to the court below, the Court of Cassation had ignored an entire section of her arguments as to the incompatibility of French law with the Convention and had wrongly declared one of the prefect ’ s grounds of appeal admissible.",
"96. As to the first point, the Court observes that the applicant was represented in the Court of Cassation by a member of the Conseil d ’ Etat and Court of Cassation Bar. Her lawyer was thus able to make use of the practice outlined in Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 666, § § 106 ‑ 1 07 ), whereby the advocate-general informed him prior to the hearing of the tenor of his submissions, thus giving him the opportunity to reply by means of oral submissions at the hearing or a note sent to the court in deliberations. The Court found in Reinhardt and Slimane-Kaïd that this practice satisfied the requirements of Article 6 § 1 of the Convention and sees no reason to depart from that approach in the instant case.",
"97. As to the second and third points, the Court observes that it has already had occasion to rule on the practice whereby the Court of Cassation quashes a judgment without remitting it to the court below (see, for example, Riha v. France (dec.), no. 71443/01, 24 June 2004 ). In the instant case the Court observes that the applicant ’ s submissions, based, inter alia, on the Convention, were the subject of detailed argument in the tribunal de grande instance and the Court of Appeal and considers that Article 6 § 1 did not entitle her to have them addressed once again by a court of appeal following the remittal of the case. Nor can the Court discern any appearance of arbitrariness in the fact that the Court of Cassation, which determines points of law alone, declared the ground of appeal by the prefect of the département of Nord admissible.",
"98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"B. Discrimination",
"99. The applicant further complained, under Article 14 of the Convention taken together with Article 8, that she had been discriminated against on the ground of language in that she was a native English speaker.",
"100. Article 14 provides:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"101. The Court considers that the applicant has not shown that she suffered any discrimination since, as the domestic courts found, she was on the contrary given linguistic assistance not required by law.",
"102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention."
] |
94 | R.K. and A.K. v. the United Kingdom | 30 September 2008 | The applicants’ daughter, born in July 1998, was in September 1998 taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, the child was diagnosed with brittle bone disease (osteogenesis imperfecta). She was returned home in April 1999. The applicants complained that their daughter had been placed temporarily in care due to a medical misdiagnosis. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the domestic authorities had had relevant and sufficient reasons to take protective measures which in the circumstances had been proportionate to the aim of protecting the child. The Court further held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, considering that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation, a redress that had not been available at the relevant time. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants, United Kingdom nationals and husband and wife, were born in 1972 and 1976 respectively, and live in Oldham.",
"7. The applicants had a daughter M. born on 24 July 1998.",
"8. On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M.",
"9. An X - ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal, interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this.",
"10. The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties.",
"11. On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns about the family.",
"12. On 29 September 1998 the police interviewed the parents with an interpreter present.",
"13. On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called.",
"14. On 14 October 1998, in light of the doctor ’ s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998.",
"15. On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact.",
"16. The parents obtained legal advice and jointly instructed an expert, with M. ’ s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage.",
"17. On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home.",
"18. On 29 March 1999, M. sustained a second injury in her aunt ’ s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury.",
"19. After discharge from hospital, M. returned home in April 1999.",
"20. On 17 June 1999, the care order was discharged and M. returned to her parents. In her report to the court dated 14 June 1999, M. ’ s guardian ad litem noted, inter alia, that this had been a particularly perplexing case, in which a diagnosis of non-accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information, essentially positive, which had emerged about the family. She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury.",
"21. The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours had spread to Pakistan that the mother had been put in prison. The parents ’ relationship with M. and with the grandmother were severely affected and disrupted as a result of events.",
"22. On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician.",
"23. On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed.",
"24. Leave to appeal to the Court of Appeal was granted. Two other cases raising similar issues were considered at the same time.",
"25. On 31 July 2003, concerning the parents ’ claims in the three cases, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments ( Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001 ‑ V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents ’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result.",
"26. After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first- instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia :",
"\"70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’ s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent ’ s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury.",
"71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interests of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.",
"72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child ’ s history.",
"73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.",
"74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ...",
"75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection...",
"76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents ’ complaints related to the periods for which they remained under suspicion. In each case the parent ’ s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors ’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.",
"77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith...",
"78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect...",
"79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals ’ duty to exercise due professional skill and care is owed only to the child ’ s primary carers, usually the parents, as well as the child himself. ...",
"80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...",
"81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent ’ s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...",
"...",
"85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest ’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘ quite right ’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.",
"86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ...\""
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"27. The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights. Article 8 of the Convention provides as relevant:",
"“1. Everyone has the right to respect for his private and family life, ....",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. The parties ’ observations",
"1. The applicants",
"28. The applicants submitted that they had had no choice but to consent to the interim care order. They argued that it was not a matter of a mere error of medical judgment but a concatenation of events which led to inappropriate social and legal consequences flowing from an erroneous diagnosis, without any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he discounted all other possibilities and his care was deemed substandard by their expert in the domestic negligence proceedings, Dr Conway. Further the applicants were excluded from all discourse in the matter; A. K. was provided with no translator during her conversations with nursing staff and Dr Blumenthal, and she was given no opportunity to correct mistaken factual assumptions. No weight was given to the fact that they had no prior history with social services or that the health visitor had had no concerns with M. ’ s care, her view not even being sought initially and later being discounted. They pointed out that the failure to order other tests to exclude OI highlighted a complete reluctance to consider other possible causes of the fracture and the possibility of a skin biopsy was never raised at all, excluding them from the decision-making process. They were never given an effective opportunity to deal with allegations, referring to the case of T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). They drew attention to the fact that Dr Paterson had become a totally discredited expert in OI, receiving adverse comments from judges in child care proceedings and being struck off in 2004 for professional misconduct. Finally, the notes of the triage nurse contributed to highly negative assumptions being made about A. K. in particular and about the way in which the fracture occurred, influencing not only Dr Blumenthal ’ s diagnosis but also Professor Carty ’ s. Dr Conway was never asked about OI but about Dr Blumenthal ’ s standard of professional care in which his own credentials were impeccable.",
"29. The applicants emphasised that, while M. was returned home in April 1999, the public care was not revoked until June 1999, so that their rights were affected for nine months and suspicions, anxieties and restrictions lingered on. They emphasised that their much-loved three-month-old first-born baby had been taken away from them and they had been accused of deliberately injuring her. A. K. could no longer be with her 24 hours a day, or throughout the night, as would have happened if she had not been removed and the parents had to endure a daily wrench of separation.",
"30. Furthermore, the applicants argued that if the interferences did not reach the threshold of severity under Article 3, they disclosed serious interferences with their moral and physical integrity and damage to their reputation, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect.",
"2. The Government",
"31. The Government accepted that the removal of M. from home interfered with family life but submitted that the interference was justified as being fully in accordance with domestic law and necessary to protect M. They pointed out that the separation was less than nine months (only from October 1998 to April 1999), that she lived with her aunt not far from her parents ’ home and saw her parents almost as much as when she was at home due to supervised, but unlimited, access. They considered that the social services had acted reasonably and in M. ’ s best interests in responding to concerns of medical professionals. The possibility of OI was considered from the outset but there was no medical evidence at that stage to support such a diagnosis, an independent expert also finding no bone abnormalities or radiological or clinical evidence of OI. When the second fractures occurred, there was prompt reconsideration of the diagnosis and a third opinion sought which also indicated that no-one could have made a diagnosis of OI in the first instance, the child having a confused history, with lots of discrepancies and an essentially-normal skeletal survey. That expert also cautioned against the utility of urine and other biochemical tests in arriving at a confirmed OI diagnosis. The Government emphasised the extreme difficulty in diagnosing mild OI in a very young infant such as M., requiring a trajectory and progression of the condition over a period of time. They drew attention to the view of the guardian ad litem of M. who stressed that a diagnosis of OI or any other bone disorder could not have been made at the time of the first injury. They argued that the errors in the notes made by the triage nurse at the outset were not determinative or influential. While the applicants placed reliance on their expert in the domestic proceedings, the Government pointed out that he was a consultant paediatrician without any expertise in childhood bone diseases, in particular OI. They rejected as without substance other allegations of breaches of Article 8 concerning physical and moral integrity and damage to reputation and private life.",
"The Court ’ s assessment",
"1. Concerning family life",
"32. It is not disputed in the present case that the proceedings instituted as regarded M., and the interim care order which resulted in M. being placed away from the applicants, constituted an interference with the applicants ’ right to respect for their family life within the meaning of the first paragraph of Article 8. It must therefore be determined whether this interference was justified under the second paragraph, namely whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.",
"33. The Court finds no reason to doubt that the interference complied with the first two criteria, as conforming with domestic law requirements and pursuing the legitimate aim of protecting the rights of others, namely the child who had suffered injury.",
"34. As to whether the interference was \"necessary in a democratic society”, the Court ’ s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference were fair and afforded due respect to the interests safeguarded by Article 8. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, amongst many authorities, T.P. and K.M. , cited above, § § 71-72 ).",
"35. In the present case, the Court notes that the applicants have made various complaints about the conduct of various professionals involved in the case, essentially referring to an accumulation of errors and alleging a lack of safeguards in place to prevent the erroneous diagnosis that the injuries were caused non-accidentally (see paragraph 28 above).",
"36. The Court would re-iterate that mistaken judgments or assessments by professionals do not per se render child- care measures incompatible with the requirements of Article 8. The authorities, medical and social, have duties to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis- à -vis members of their families are proved, retrospectively, to have been misguided. In the present case, it is incontrovertible that M., a baby of only a few months, suffered a serious and unexplained fracture. It is not disputed that OI is a very rare condition and also difficult to diagnose in very small infants. The Court does not consider that the social or medical authorities can be faulted for not reaching an immediate diagnosis of OI or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents. No doubt it would have been better if the triage nurse had taken more accurate notes as to the family ’ s account of what had happened and trouble had been taken to obtain interpretation in medical staff ’ s conversations with A. K. who did not understand English. However, it is not apparent that this would have dissipated concerns at this early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, it may be noted that, even when official interpretation was available, in court, the testimony of A. K. was not found to be convincing.",
"37. The applicants ’ complaints very much amount to criticising the way in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt. Nonetheless, it must also be noted that, while an interim care order was issued with a view to protecting M., steps were also taken to place the baby within her extended family and in close proximity to the applicants ’ own home so that they could easily and frequently visit. And crucially, as soon as a further fracture occurred outwith the applicants ’ care, further tests were quickly pursued and within weeks M. was returned home.",
"38. The Court further notes that M. was removed from the applicants ’ care for a period of some seven months. It is not impressed by the applicants ’ complaint that the care order was not removed for some further two months. This was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice. As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of OI which considered that there was no fault in not reaching this conclusion at the time of the first injury. The applicants emphasised that one of these doctors was later totally discredited. However, the Court is not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion. It is satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M. and which gave due account and procedural protection to the applicants ’ interests, and without any lack of the appropriate expedition.",
"39. There has, accordingly, been no violation of Article 8 of the Convention in this regard.",
"2. Concerning other aspects of Article 8",
"40. The applicants also claimed that the events complained of above invaded their physical and moral integrity and damaged their reputation in violation of Article 8 of the Convention.",
"Having regard to its conclusions above as to the lawfulness and necessity of the measures, the Court considers that in the circumstances no separate issue arises.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"41. The applicants complained that they had no effective remedy for their above complaints, invoking Article 13 of the Convention which provides:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"A. The parties ’ submissions",
"42. The applicants argued that Article 13 was applicable and that none of the remedies referred to by the Government would have satisfied that provision. As regarded the HRA 1998, it was expressly because the events took place before it came into force that they could not avail themselves of that legislation. It was difficult for them to understand why recognising a duty of care in relation to events before 2 October 2000 would have had such unacceptable consequences for child protection since it was available afterwards. They maintained their view that in tort public policy concerns have meant that a wide de facto immunity from suit was allowed to public bodies. At the time the tort of negligence was the only remedy in national law capable of determining the substance of their Convention complaints but the House of Lords chose not to recognise that they fell within its ambit.",
"43. The Government accepted that there was an arguable claim and notwithstanding the variety of remedies available (local authority social service and NHS complaints procedures, the local authority and NHS ombudsmen, judicial review of the relevant authorities and appeals against any court orders) they acknowledged that they were arguably obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could have been proved to have resulted from any violation of Article 8. They submitted that as from 2 October 2000 such a remedy was provided by the HRA 1998 (sections 7 and 8) although this did not apply to the acts in issue in these proceedings. They pointed out though that there was no prior obligation to incorporate the Convention in domestic law or to incorporate it with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit.",
"B. The Court ’ s assessment",
"44. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 ‑ 97, § 53 ).",
"45. It is common ground in this case that the applicants ’ complaints about the interference with their family life through the care measures were arguable. The Court considers that the applicants should have had available to them a means of claiming that the local authority ’ s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage ( T.P. and K.M ., cited above, §§ 108 -109 ). Such redress was not available at the relevant time. Consequently, there has been a violation of Article 13 of the Convention in this regard.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"46. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"47. The applicants claimed 15,000 pounds sterling (GBP) each for non-pecuniary damages as regarded their complaints under Article 8 to reflect the separation of nine months from the child, the public suspicion and criticism suffered by AK, the mental distress at the continuing fear of separation from their child, the concern that their innocence has never publicly been vindicated and that details of the unfounded allegations may remain in local authority files. They also claimed GBP 4,214 each for the violation of Article 13 referring to the lack of any effective remedy for their concerns which required them to spend three and a half years in domestic proceedings and then to bring their case here.",
"48. The Government claimed that these claims were excessive pointing out that only GBP 10,000 was awarded in TP and KM v. the United Kingdom ( cited above ), where there had been separation of a year, whereas there had been a shorter period of separation and the child in the present case had in fact been placed in the care of an aunt who lived nearby. An award of GBP 10,000 jointly to the applicants was sufficient for any violation of Article 8 and no further award necessary for any breach of Article 13.",
"49. The Court recalls that it has only found a violation under Article 13 of the Convention. Not doubting that the applicants did in that regard suffer frustration, stress and uncertainty which would not be redressed by a finding of a violation alone, and having regard to awards in similar cases, the Court, making its assessment on an equitable basis, awards the applicants 1 0 ,000 EUR jointly.",
"B. Costs and expenses",
"50. The applicants claimed legal costs and expenses as regarded their representation by counsel and solicitor in the amount of GBP 32,803.43, which sum took into account the award of legal aid from the Council of Europe and included value-added tax. They also claimed GBP 11,230 for advice and work done by the AIRE Centre.",
"51. The Government considered that the number of hours claimed (130 by the solicitors and 117 by AIRE Centre) were clearly excessive and contained an significant element of duplication. They considered an award of some GBP 10,000, inclusive of VAT should be awarded.",
"52. The Court recalls that the procedure was in writing, that no further submissions on the merits were put in after admissibility and that the applicants were only successful on one complaint. It also concurs with the Government that considerable duplication is disclosed by the claims put in for work by solicitor, counsel and experts from the AIRE Centre. Having regard also to the finding of only one violation, it awards EUR 18 ,000 for legal costs plus any tax that may be payable by the applicants.",
"C. Default interest",
"53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
95 | Saviny v. Ukraine | 18 December 2008 | This case concerned the placement of children in public care on ground that their parents, who have both been blind since childhood, had failed to provide them with adequate care and housing. The domestic authorities based their decision on a finding that the applicants’ lack of financial means and personal qualities endangered their children’s life, health and moral upbringing. | The Court held that there had been a violation of Article 8 (right to respect of private and family life) of the Convention, doubting the adequacy of the evidence on which the authorities had based their finding that the children’s living conditions had in fact been dangerous to their life and health. It observed in particular that the judicial authorities had only examined those difficulties which could have been overcome by targeted financial and social assistance and effective counselling and had not apparently analysed in any depth the extent to which the applicants’ irremediable incapacity to provide requisite care had been responsible for the inadequacies of their children’s upbringing. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.",
"A. The applicants’ family circumstances and living conditions",
"6. Both applicants have been blind since childhood.",
"7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.",
"8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.",
"9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.",
"10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).",
"11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.",
"12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.",
"13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.",
"14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.",
"15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.",
"16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.",
"17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.",
"18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.",
"19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.",
"20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.",
"21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.",
"22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.",
"B. Court proceedings for placement of O.S., K.S. and T.S. in public care",
"23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.",
"24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:",
"“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...",
"The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....",
"... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...",
"The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”",
"25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.",
"26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:",
"“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.",
"According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”",
"27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.",
"28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Constitution of Ukraine",
"29. The relevant provisions of the Constitution of Ukraine read as follows:",
"Article 32",
"“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”",
"Article 51",
"“...The family, childhood, motherhood and fatherhood are under the protection of the State.”",
"B. Family Code of Ukraine of 10 January 2002",
"30. The relevant provisions of the Family Code of Ukraine read as follows:",
"Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights",
"“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.",
"In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.",
"2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.",
"In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.",
"The same claim can be lodged by the prosecutor.",
"3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”",
"C. Law of Ukraine “On Protection of Childhood” of 26 April 2001",
"31. The relevant provisions of the Law read as follows:",
"Section 11. A child and a family",
"“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”",
"Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child",
"“to be brought up in a family is a fundamental principle for development of a child”",
"The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”",
"Section 14. Separation of a child and family",
"“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”",
"D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)",
"32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:",
"(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”",
"III. RELEVANT INTERNATIONAL INSTRUMENTS",
"A. The United Nations Convention on the Rights of the Child",
"33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.",
"B. Committee on the Rights of the Child",
"34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:",
"“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;",
"(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.",
"(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.",
"C. Council of Europe",
"35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:",
"« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;",
"– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;",
"– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);",
"– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»",
"36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Parties’ submissions",
"a. The applicants",
"39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.",
"40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.",
"41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.",
"42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.",
"b. The Government",
"43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.",
"44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.",
"45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.",
"46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.",
"2. The Court’s assessment",
"a. General principles",
"47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).",
"48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).",
"49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).",
"50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).",
"51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).",
"52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).",
"b. Application of these principles in the present case",
"53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.",
"54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.",
"55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.",
"56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.",
"57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.",
"58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.",
"59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.",
"60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.",
"61. Therefore, there has been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.",
"64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.",
"65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).",
"66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”",
"68. The Government contested these arguments.",
"69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.",
"70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"71. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.",
"73. The Government contested that claim.",
"74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.",
"B. Costs and expenses",
"75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.",
"76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.",
"77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.",
"C. Default interest",
"78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
96 | Saviny v. Ukraine | 18 December 2008 | This case concerned the placement of children in public care on ground that their parents, who have both been blind since childhood, had failed to provide them with adequate care and housing. The domestic authorities based their decision on a finding that the applicants’ lack of financial means and personal qualities endangered their children’s life, health and moral upbringing. Notably they were unable to provide them with proper nutrition, clothing, hygiene and health care or to ensure that they adapt in a social and educational context. The applicants had appealed against the decision unsuccessfully. | The Court held that there had been a violation of Article 8 (right to respect of private and family life) of the Convention, doubting the adequacy of the evidence on which the authorities had based their finding that the children’s living conditions had in fact been dangerous to their life and health. The judicial authorities had only examined those difficulties which could have been overcome by targeted financial and social assistance and effective counselling and had not apparently analysed in any depth the extent to which the applicants’ irremediable incapacity to provide requisite care had been responsible for the inadequacies of their children’s upbringing. Indeed, as regards parental irresponsibility, no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants’ emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants’ attempts to improve their situation. Furthermore, the Court noted that at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions. | Persons with disabilities and the European Convention on Human Rights | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.",
"A. The applicants’ family circumstances and living conditions",
"6. Both applicants have been blind since childhood.",
"7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих ), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.",
"8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.",
"9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.",
"10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School ( Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської ).",
"11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.",
"12. Between 1998 and 2004 representatives of the Municipal Juvenile Service ( Служба у справах неповнолітніх ) and the Tutelage Board ( Орган опіки та піклування ), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.",
"13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.",
"14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.",
"15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.",
"16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.",
"17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.",
"18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) [1] in financial assistance to pay for electricity.",
"19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.",
"20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.",
"21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.",
"22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500 [2]. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 [3] in various compensatory payments in respect of the subsequent idle period.",
"B. Court proceedings for placement of O.S., K.S. and T.S. in public care",
"23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.",
"24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:",
"“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...",
"The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible ( жахливі ) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements ( антисанітарія ), very poor financial state....",
"... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...",
"The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”",
"25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.",
"26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:",
"“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.",
"According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”",
"27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.",
"28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker ( соціальний педагог ) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Constitution of Ukraine",
"29. The relevant provisions of the Constitution of Ukraine read as follows:",
"Article 32",
"“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”",
"Article 51",
"“...The family, childhood, motherhood and fatherhood are under the protection of the State.”",
"B. Family Code of Ukraine of 10 January 2002",
"30. The relevant provisions of the Family Code of Ukraine read as follows:",
"Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights",
"“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.",
"In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.",
"2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.",
"In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.",
"The same claim can be lodged by the prosecutor.",
"3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”",
"C. Law of Ukraine “On Protection of Childhood” of 26 April 2001",
"31. The relevant provisions of the Law read as follows:",
"Section 11. A child and a family",
"“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”",
"Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child",
"“to be brought up in a family is a fundamental principle for development of a child”",
"The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”",
"Section 14. Separation of a child and family",
"“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”",
"D. Ukrainian Parliament Commissioner for Human Rights (Ombudsman)",
"32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:",
"(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH) [4], which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”",
"III. RELEVANT INTERNATIONAL INSTRUMENTS",
"A. The United Nations Convention on the Rights of the Child",
"33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.",
"B. Committee on the Rights of the Child",
"34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:",
"“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;",
"(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.",
"(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.",
"C. Council of Europe",
"35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:",
"« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;",
"– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;",
"– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...);",
"– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»",
"36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The applicants complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his ... family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Parties’ submissions",
"a. The applicants",
"39. The applicants accepted that their living conditions were very basic. They did not, however, consider that the conditions were so bad as to endanger the children’s life or health and render necessary their removal from home. In particular, there was no evidence that the children suffered from any diseases associated with malnutrition or dirtiness. As concerns O.S.’s and K.S.’s registration at the health centre, that registration was pursued by the applicants upon the doctors’ advice as the best opportunity for the children to get free vouchers in summer camps.",
"40. The applicants did not deny that they received some financial and other support from the State, but submitted that it was grossly insufficient to improve their situation. Furthermore, their requests to the authorities for a gas supply to their flat, which would enable them to have gas heating and hot water and therefore to create normal sanitary conditions, remained to no avail. In their opinion the authorities concentrated only on drafting documents concerning the inadequacy of their conditions, instead of providing them with the necessary counselling as to possible solutions to their situation. The applicants further accepted that it might have been beneficial for the children to be placed in boarding schools, but submitted that this could be done by means other than their removal from the parents’ care, which made it practically impossible for the applicants to spend time with the children outside the institutions, especially regard being had to the placement of children in various institutions. In their opinion, there was no danger in allowing the children to visit their parents at home for short periods of time.",
"41. The applicants also noted that in so far as O.S.’s wandering was concerned, they should not have been blamed for it, as they had attempted to discipline their son. However, it was often from school that he had run away, while being under supervision of the teachers.",
"42. In sum, the applicants alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.",
"b. The Government",
"43. The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.",
"44. Having underlined that the applicants had not been deprived of their parental rights, the Government stated that the applicants had seldom visited the children after their placement in residential institutions and had failed to improve their living conditions, thereby demonstrating that they were not interested in reuniting their family.",
"45. In addition, the Government informed the Court that the applicants had received state allowances as well as help from the state-supported USB, which had proved not to be of assistance, as the applicants were immature and irresponsible. In contrast, the children now lived under public care in spacious rooms with two to three room-mates, could attend museums and theatres and go to summer camps.",
"46. In conclusion, in the Government’s opinion, the interference complained of did not constitute a violation of Article 8 of the Convention.",
"2. The Court’s assessment",
"a. General principles",
"47. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8 (see, inter alia, McMichael v. the United Kingdom, 24 February 1995, § 86, Series A no. 307 ‑ B). Such interference constitutes a violation of this provision unless it is “in accordance with the law”, pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as “necessary in a democratic society” (see McMichael, cited above, § 87).",
"48. In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 ‑ I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).",
"49. The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances (see, for example, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII).",
"50. In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany, no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)). In taking a decision on removal of a child, a variety of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or whether the child’s placement in public care is necessitated by the state of its physical or mental health (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 72, 26 October 2006 and Havelka and Others v. the Czech Republic, no. 23499/06, § 57, 21 June 2007). On the other hand, the mere fact that a child could be placed in a more beneficial environment for his or her upbringing does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than the splitting of the family, such as targeted financial assistance and social counselling (see, for example, Moser v. Austria, no. 12643/02, § 68, 21 September 2006; Wallová and Walla, cited above, §§ 73-76; and Havelka and others, cited above, § 61).",
"51. Further, in assessing the quality of a decision-making process leading to splitting up the family, the Court will see, in particular, whether the conclusions of the domestic authorities were based on sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, in particular the parents, had sufficient opportunity to participate in the procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99, 8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and Polášek v. Czech Republic (dec.), no. 31885/05, 8 January 2007). The Court will also have regard to whether, where appropriate, the children themselves were able to express their views (see, for example, Havelka and Others, cited above, § 62, and Haase, cited above, § 97).",
"52. In any event, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166; Kutzner, cited above, § 67; and Moser, cited above, § 70) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and until then enable regular contact between them, including, where possible, by keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, §§ 76-77 and K. and T. v. Finland [GC], cited above, § 179).",
"b. Application of these principles in the present case",
"53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was “necessary in a democratic society”.",
"54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.",
"55. The Court notes that the domestic authorities based their decision on a finding that the applicants, by virtue of insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. The Court finds that these reasons were undoubtedly relevant to the taking of the requisite decision.",
"56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded. Further, a number of specific conclusions (such as that the children lacked proper nutrition, were dressed inappropriately and were often left home alone) were based solely on the submissions by the municipal authorities, drawn from their occasional inspections of the applicants’ dwelling. No other corroborating evidence, such as the children’s own views, their medical files, opinions by their paediatricians or statements by neighbours had been examined. In fact, the only objective evidence in support of the finding about the children’s inadequate state of health, to which the trial court referred in its decision, was a medical certificate dated a year earlier, attesting that O.S. and K.S. had been placed on record for first-stage anaemia, the accuracy of which, challenged by the applicants, was not verified. Similarly, as regards the failure of the applicants to ensure proper educational and social adaptation of their children, the courts referred primarily to the submissions by the municipal authorities that O.S. had been seen wandering and begging, but no reference to the dates, frequency, names of the witnesses or other relevant circumstances was solicited.",
"57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling. In connection with the financial difficulties, it is not the Court’s role to determine whether the promotion of family unity in the case entitled the applicants’ family to a particular standard of living at public expense. It is, however, a matter which falls to be discussed by, initially, the relevant public authorities and, subsequently, in the course of the judicial proceedings.",
"58. As regards the extent to which the inadequacies in the children’s upbringing may have been prompted by the applicants’ purported irresponsibility as parents, no independent evidence (such as an assessment by a psychologist) was sought to evaluate their emotional or mental maturity or motivation in resolving their household difficulties. Similarly, in the courts’ reasoning, no analysis was made of the applicants’ attempts to improve their situation, such as requests to equip their flat with access to natural gas, recoup salary arrears or request employment assistance. On the contrary, the courts appear to have taken on trust the submissions by the municipal authorities that the applicants had failed to improve their living conditions and attitudes in spite of financial and other support as well as necessary counselling. Beyond the descriptive findings of the inspection reports, repeatedly pointing to the same problems, such as a rotting baby’s mattress, no data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. The Court finds that soliciting specific information in this regard would have been pertinent in evaluating whether the authorities discharged their Convention obligation to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents.",
"59. The Court also notes that at no stage of the proceedings were the children (including O.S., who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.",
"60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.",
"61. Therefore, there has been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8",
"62. The applicants complained that the custody decisions had been taken on the ground of their status as disabled persons, and that the State had failed to fulfil its obligation to provide them with adequate conditions in order to preserve their family. They relied on Article 14 of the Convention taken in conjunction with Article 8. The relevant provision reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"63. The Government insisted that the children had not been removed from the applicants on the ground of their disability. They maintained that many other blind people raised their children themselves, providing them with due care. In the Government’s opinion, the applicants’ living conditions were the result not of their disability or income, but of their own choices.",
"64. The applicants contested this argument. They stated that firstly their family was unique among blind couples due to the number of their children. Furthermore, none of the families registered with the USB had such an unsuitable housing situation. Although the applicants agreed that their living conditions were not satisfactory to raise children, they nevertheless insisted that their very special situation required more efforts from the State authorities to ensure their dignity and equality with healthy people.",
"65. The Court notes that, although the applicants’ disability might have presented them with certain challenges in raising their family, such as in search of a suitable employment or arranging the house, it finds that, to the extent that this complaint has been substantiated, there is no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).",
"66. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"67. The applicants also complained that the judicial proceedings and the courts’ decisions in their case were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:",
"“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”",
"68. The Government contested these arguments.",
"69. The Court notes that this complaint is linked to the applicants’ complaint under Article 8 and must therefore likewise be declared admissible.",
"70. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the claims lodged under these provisions, in the instant case the lack of respect for the applicants’ family life is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraphs 60-61 above), the Court considers that it is not necessary to examine the facts also under Article 6 (see Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006).",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"71. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"72. The applicants claimed 30,000 euros (EUR) in respect of non-pecuniary damage.",
"73. The Government contested that claim.",
"74. The Court accepts that the applicants have suffered damage of a non-pecuniary nature as a result of the State’s failure to comply with its obligation relating to the applicants’ right to respect for their family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage plus any tax that may be chargeable.",
"B. Costs and expenses",
"75. The applicants also claimed EUR 1,150 for costs and expenses incurred before the domestic courts and before the Court.",
"76. The Government noted that the applicants had already received a sufficient sum under this head by way of legal aid from the Council of Europe.",
"77. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, it observes that the applicants failed to present a legal fees agreement with their lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicants have already been given legal aid, the Court gives no award under this head.",
"C. Default interest",
"78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
97 | Y.C. v. the United Kingdom | 13 March 2012 | This case concerned childcare proceedings in respect of the applicant’s son, born in 2001, which had resulted in an order authorising the child to be placed for adoption because of concerns about her relationship with the child’s father. The applicant complained in particular about the courts’ refusal to order an assessment of her as a sole carer for her son. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the decision to make a placement order had not exceeded the State’s margin of appreciation and that the reasons for the decision had been relevant and sufficient. The applicant had further been given every opportunity to present her case and had been fully involved in the decision-making process. The Court observed in particular that the domestic courts had directed their mind, as required by Article 8 of the Convention, to the child’s best interests, had had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian and the psychologist, all of whom had identified the issues at stake. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. The background facts",
"5. The applicant was born in 1962 and lives in Bridgwater.",
"6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.",
"7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.",
"B. The domestic proceedings",
"1. The emergency protection order application",
"8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.",
"9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:",
"“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].",
"10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.",
"2. The care proceedings before the Family Proceedings Court",
"a. The interim care orders and preparation for hearing",
"11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.",
"12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.",
"13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.",
"14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.",
"15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.",
"16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.",
"17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:",
"“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...",
"We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”",
"18. The court noted that the guardian supported the renewal of the ICO and continued:",
"“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”",
"19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.",
"20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.",
"21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.",
"22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.",
"23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:",
"“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”",
"24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.",
"25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.",
"26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:",
"“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”",
"27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.",
"28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.",
"29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:",
"“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.",
"It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”",
"30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.",
"31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.",
"32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.",
"33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.",
"34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:",
"“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”",
"35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.",
"36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.",
"37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:",
"“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”",
"38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:",
"“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”",
"39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.",
"40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.",
"41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.",
"42. As to K’s own views, she noted:",
"“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”",
"43. In her analysis and conclusions, she noted:",
"“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”",
"44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:",
"“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”",
"45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:",
"“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”",
"46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.",
"47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:",
"“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”",
"48. She asked the court to make a care order and a placement order in respect of K.",
"49. On 17 March 2009 the applicant filed a statement in response. The statement noted:",
"“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”",
"50. She refuted several aspects of the social worker’s statement, noting:",
"“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”",
"51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.",
"52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.",
"53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.",
"54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.",
"55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:",
"“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”",
"56. The report continued:",
"“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”",
"57. The report went on to consider in more detail P.C.’s behaviour and history.",
"58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:",
"“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”",
"59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.",
"b. The hearing before the Family Proceedings Court",
"60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.",
"61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.",
"62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.",
"63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.",
"64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.",
"65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.",
"66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.",
"67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.",
"68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:",
"“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”",
"69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:",
"“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].",
"In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”",
"70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:",
"“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].",
"...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.",
"We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”",
"71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:",
"“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”",
"72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.",
"3. The appeal to the County Court",
"73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.",
"74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.",
"75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.",
"76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.",
"77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:",
"“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”",
"78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:",
"“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”",
"79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:",
"“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”",
"80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:",
"“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”",
"81. He continued:",
"“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”",
"82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:",
"“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.",
"... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”",
"83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.",
"4. The appeal to the Court of Appeal",
"84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.",
"85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.",
"86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:",
"“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”",
"87. He continued:",
"“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”",
"88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.",
"5. Subsequent events",
"89. A final supervised contact between K. and the applicant took place in December 2009.",
"90. K. was placed with a prospective adoptive parent on 18 January 2010.",
"91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Child care proceedings",
"1. Emergency protection orders",
"92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.",
"2. Care orders and interim care orders",
"93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:",
"“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and",
"(b) that the harm, or likelihood of harm, is attributable to–",
"(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or",
"(ii) the child’s being beyond parental control.”",
"94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.",
"95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.",
"96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.",
"97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;",
"“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);",
"(b) his physical, emotional and educational needs;",
"(c) the likely effect on him of any change in his circumstances;",
"(d) his age, sex, background and any characteristics of his which the court considers relevant;",
"(e) any harm which he has suffered or is at risk of suffering;",
"(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;",
"(g) the range of powers available to the court under this Act in the proceedings in question.”",
"3. Placement orders",
"98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:",
"“(a) the child is subject to a care order,",
"(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or",
"(c) the child has no parent or guardian.”",
"99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:",
"“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–",
"(a) the parent or guardian cannot be found or is incapable of giving consent, or",
"(b) the welfare of the child requires the consent to be dispensed with.”",
"100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.",
"101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.",
"102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:",
"“Before making a placement order the court must–",
"(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and",
"(b) invite the parties to the proceedings to comment on those arrangements.”",
"103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:",
"“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),",
"(b) the child’s particular needs,",
"(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,",
"(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,",
"(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,",
"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–",
"(i) the likelihood of any such relationship continuing and the value to the child of its doing so,",
"(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,",
"(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”",
"104. Section 1(6) provides:",
"“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”",
"4. Adoption orders",
"105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.",
"B. Clarifications of aspects of a judgment",
"106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:",
"“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”",
"107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:",
"“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.",
"This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”",
"C. The statutory checklists and Article 8 in childcare cases",
"108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).",
"109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:",
"“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”",
"110. As to Article 8, she continued:",
"“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”",
"111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:",
"“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”",
"112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.",
"113. Lord Justice Wall noted:",
"“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.",
"96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”",
"114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:",
"“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.",
"99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.",
"100. In my judgment, neither defence meets the criticism ...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"116. The Government contested that argument.",
"A. Admissibility",
"117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The applicant",
"118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.",
"119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.",
"120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).",
"121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).",
"122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.",
"123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.",
"b. The Government",
"124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.",
"125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.",
"126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.",
"127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.",
"128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.",
"129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.",
"2. The Court’s assessment",
"130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.",
"131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.",
"132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.",
"a. General principles",
"133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).",
"134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).",
"135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.",
"136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).",
"137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.",
"138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.",
"139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).",
"b. Application of the general principles to the facts of the case",
"140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.",
"141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).",
"142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.",
"143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.",
"144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.",
"145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).",
"146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).",
"147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.",
"148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.",
"149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.",
"150. There has accordingly been no violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.",
"152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4."
] |
98 | Y.C. v. the United Kingdom | 13 March 2012 | The applicant and her partner of several years had a son in 2001. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. There were subsequent incidents of domestic violence and alcohol abuse which escalated from the end of 2007 with the police being called to the family home on numerous occasions. In June 2008 the local authority obtained an emergency protection order after the boy was injured during a further violent altercation between the parents. Childcare proceedings resulted in an order authorising the child to be placed for adoption. The applicant complained that the courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making the placement order had violated her rights under Article 8 (right to respect for private and family life) of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the reasons for the decision to make a placement order had been relevant and sufficient, and that the applicant had been given every opportunity to present her case and had been fully involved in the decision-making process. The Court found in particular that, in the light of the history of the case and the reports, the County Court judge’s view that a resumption of the applicant’s relationship with the father was likely and entailed a risk to the child’s well-being did not appear unreasonable. Accordingly, while it was in a child’s best interests that his or her family ties be maintained where possible, it was clear that in the instant case this consideration had been outweighed by the need to ensure the child’s development in a safe and secure environment. In this regard the Court observed in particular that attempts had been made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance. When the applicant indicated that she had separated from the child’s father, she had further been given details of domestic violence support that she could access. It appeared, however, that she had not accessed such support and had ultimately reconciled with the child’s father. | Domestic violence | State’s duty to protect physical and psychological integrity of individuals | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. The background facts",
"5. The applicant was born in 1962 and lives in Bridgwater.",
"6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.",
"7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.",
"B. The domestic proceedings",
"1. The emergency protection order application",
"8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.",
"9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:",
"“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].",
"10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.",
"2. The care proceedings before the Family Proceedings Court",
"a. The interim care orders and preparation for hearing",
"11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.",
"12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.",
"13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.",
"14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.",
"15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.",
"16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.",
"17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:",
"“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...",
"We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”",
"18. The court noted that the guardian supported the renewal of the ICO and continued:",
"“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”",
"19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.",
"20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.",
"21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.",
"22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.",
"23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:",
"“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”",
"24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.",
"25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.",
"26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:",
"“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”",
"27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.",
"28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.",
"29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:",
"“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.",
"It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”",
"30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.",
"31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.",
"32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.",
"33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.",
"34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:",
"“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”",
"35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.",
"36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.",
"37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:",
"“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”",
"38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:",
"“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”",
"39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.",
"40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.",
"41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.",
"42. As to K’s own views, she noted:",
"“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”",
"43. In her analysis and conclusions, she noted:",
"“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”",
"44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:",
"“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”",
"45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:",
"“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”",
"46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.",
"47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:",
"“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”",
"48. She asked the court to make a care order and a placement order in respect of K.",
"49. On 17 March 2009 the applicant filed a statement in response. The statement noted:",
"“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”",
"50. She refuted several aspects of the social worker’s statement, noting:",
"“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”",
"51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.",
"52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.",
"53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.",
"54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.",
"55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:",
"“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”",
"56. The report continued:",
"“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...”",
"57. The report went on to consider in more detail P.C.’s behaviour and history.",
"58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:",
"“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”",
"59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.",
"b. The hearing before the Family Proceedings Court",
"60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.",
"61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.",
"62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.",
"63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.",
"64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.",
"65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.",
"66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.",
"67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.",
"68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:",
"“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”",
"69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:",
"“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].",
"In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”",
"70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:",
"“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].",
"...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.",
"We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”",
"71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:",
"“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”",
"72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.",
"3. The appeal to the County Court",
"73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.",
"74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.",
"75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.",
"76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.",
"77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:",
"“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”",
"78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:",
"“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”",
"79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:",
"“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”",
"80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:",
"“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”",
"81. He continued:",
"“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”",
"82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:",
"“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.",
"... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”",
"83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.",
"4. The appeal to the Court of Appeal",
"84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.",
"85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.",
"86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:",
"“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”",
"87. He continued:",
"“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”",
"88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.",
"5. Subsequent events",
"89. A final supervised contact between K. and the applicant took place in December 2009.",
"90. K. was placed with a prospective adoptive parent on 18 January 2010.",
"91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Child care proceedings",
"1. Emergency protection orders",
"92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.",
"2. Care orders and interim care orders",
"93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:",
"“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and",
"(b) that the harm, or likelihood of harm, is attributable to–",
"(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or",
"(ii) the child’s being beyond parental control.”",
"94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.",
"95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.",
"96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.",
"97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;",
"“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);",
"(b) his physical, emotional and educational needs;",
"(c) the likely effect on him of any change in his circumstances;",
"(d) his age, sex, background and any characteristics of his which the court considers relevant;",
"(e) any harm which he has suffered or is at risk of suffering;",
"(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;",
"(g) the range of powers available to the court under this Act in the proceedings in question.”",
"3. Placement orders",
"98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:",
"“(a) the child is subject to a care order,",
"(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or",
"(c) the child has no parent or guardian.”",
"99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:",
"“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–",
"(a) the parent or guardian cannot be found or is incapable of giving consent, or",
"(b) the welfare of the child requires the consent to be dispensed with.”",
"100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.",
"101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.",
"102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:",
"“Before making a placement order the court must–",
"(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and",
"(b) invite the parties to the proceedings to comment on those arrangements.”",
"103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:",
"“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),",
"(b) the child’s particular needs,",
"(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,",
"(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,",
"(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,",
"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–",
"(i) the likelihood of any such relationship continuing and the value to the child of its doing so,",
"(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,",
"(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”",
"104. Section 1(6) provides:",
"“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”",
"4. Adoption orders",
"105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.",
"B. Clarifications of aspects of a judgment",
"106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:",
"“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ...; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”",
"107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:",
"“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.",
"This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”",
"C. The statutory checklists and Article 8 in childcare cases",
"108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).",
"109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:",
"“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”",
"110. As to Article 8, she continued:",
"“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘ removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”",
"111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:",
"“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”",
"112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.",
"113. Lord Justice Wall noted:",
"“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.",
"96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”",
"114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:",
"“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.",
"99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.",
"100. In my judgment, neither defence meets the criticism ...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"115. The applicant complained that the domestic courts’ refusal to order an assessment of her as a sole carer for her son and their failure to have regard to all relevant considerations when making a placement order violated her right to respect for her family life as provided in Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"116. The Government contested that argument.",
"A. Admissibility",
"117. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The applicant",
"118. The applicant argued that in failing to grant an assessment of her as a sole parent and in failing to have regard to all relevant factors before making a care and placement order in respect of K. the domestic authorities violated her right to respect for her family life. She emphasised that the Family Proceedings Court had heard live evidence from the parties and had ordered that an assessment be carried out. In overturning this decision, the County Court did not have the benefit of hearing live evidence. It had before it a typed note of evidence before the Family Proceedings Court prepared by the clerk (see paragraph 63 above). However, this note was so inadequate as to give rise to confusion on key pieces of evidence regarding whether K. should remain in foster care or be placed for adoption. In deciding that there should be no assessment of the applicant, the County Court made no reference to her Article 8 rights.",
"119. The applicant also argued that the making of the placement order was fundamentally flawed as the correct procedure had not been complied with. She considered that the placement proceedings had been informally added to the proceedings in the Family Proceedings Court and that, as a consequence, important procedural safeguards had not been observed.",
"120. She further contended that before making a placement order, the court was obliged to consider section 1 of the 2002 Act (see paragraphs 103-104 above). The Family Proceedings Court did not do so because it decided to order that a section 38(6) assessment be carried out and so was not required to examine the request that a placement order be made. In overturning that decision, the County Court judge focussed the majority of his judgment on whether the Family Proceedings Court was right to order that an assessment be conducted. Having concluded that it was not, the judge then simply made a placement order (see paragraph 82 above). He did not set out his reasons with reference to the criteria stipulated in section 1(4) of the 2002 Act (see paragraph 103 above).",
"121. The Court of Appeal did not rectify the errors made by the lower court. It indicated that any complaint about the peremptory nature of the order should have been made to the County Court judge (see paragraph 86 above). In particular, it did not address the appeal ground regarding consideration of the section 1(4) criteria, save to say that omissions should have been brought to the attention of the judge (see paragraph 87 above).",
"122. The applicant disputed that any omissions could be remedied by an application for contact or for revocation of the placement order. She highlighted that K. had now been placed with a prospective adopter and that the court had quite properly given precedence to the new bonds that had started to form in that placement.",
"123. The applicant concluded that the placement order had allowed K. to be placed with a prospective adopter, thus leading to the severing of links with his natural family, without a proper and reasoned explanation being provided. There had therefore been a violation of Article 8 of the Convention.",
"b. The Government",
"124. The Government considered that the decisions taken in the case were proportionate and fell within the State’s margin of appreciation given that, at each stage, all relevant circumstances were taken into account and cogent reasons were given for the decision reached. They emphasised that the domestic courts had had direct contact with the persons concerned and that it was not the role of this Court to substitute itself for the domestic authorities.",
"125. The Government disputed the applicant’s contention that the correct procedures had not been followed prior to the making of the care and placement order by the County Court. In particular, it was clear from the evidence before the Court that the applicant was well aware before the hearing in the Family Proceedings Court that the local authority was seeking a care and placement order.",
"126. The refusal of the County Court judge to allow an assessment of the applicant as a sole carer was based on a thorough analysis of the expert evidence, which included evidence of K.’s own wishes and feelings. The decision was founded on the judge’s conclusion that the applicant’s separation from P.C. was unlikely to be maintained; that a further assessment of the mother while K. remained in local authority care could not provide the evidence required to displace expert conclusions that the applicant lacked the parenting skills necessary to care for the child; and that any delay would therefore not be in K.’s best interests.",
"127. The Government further contended that the County Court judge did have regard to all relevant considerations before deciding to make the placement order. In particular, he had before him and took into account evidence as to K.’s wishes and feelings and gave extensive and cogent reasons for his conclusion that a placement order should be made. The Court of Appeal also gave proper reasons for dismissing the applicant’s appeal.",
"128. The Government made a number of submissions in support of their position. First, they contended that the local authority, D.I. and the guardian had all made efforts to ascertain and assess K.’s wishes and feelings about whether he should return to his parents. In each case he had indicated that although he wished to see his parents he would be scared unless social services were present. Second, the County Court judge had concluded that the separation of the applicant and P.C. was not genuine; in these circumstances there was no point seeking K.’s views as to the possibility of return to his mother alone. Third, there was nothing on the face of the County Court judgment to indicate that the judge had left K.’s wishes out of account in reaching its decision. Fourth, there was nothing to suggest that the decision would have been different had the applicant submitted that he lacked sufficient information to make a placement order. Fifth, the applicant could have, had she so wished, made that submission by taking advantage of the judge’s invitation (see paragraph 82 above). Sixth, considering the evidence as a whole, it was clear that each decision had been taken because on the basis of expert evidence the courts considered that returning K. either to his parents or to the applicant alone would cause harm and would not be in his best interests. Finally, the Government pointed out that before any final adoption order was made the court would be obliged again to consider the matters set out in section 1 of the 2002 Act. They further noted that the applicant could have applied, with the leave of the court, to have the placement order revoked at any time before a placement was made.",
"129. The Government therefore invited the Court to find that there had been no violation of Article 8 of the Convention.",
"2. The Court’s assessment",
"130. There is no doubt that the decision to refuse a further assessment and to make a care and placement order in the present case constituted a serious interference with the applicant’s right to respect for her family life within the meaning of Article 8 § 1 of the Convention. It must therefore be determined whether the interference was justified under Article 8 § 2, namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.",
"131. As to the lawfulness of the actions of the domestic courts, the Court notes that the applicant, in her submissions, made reference to alleged failures on the part of the authorities to comply with the relevant procedures for the making of a placement order (see paragraph 119 above). However, the Court is satisfied, on the basis of the evidence before it, that the correct procedures set out in the applicable legislation were followed and that the County Court judge was entitled to make a placement order in the case. The applicant also complained that the domestic courts did not have regard to section 1(4) of the 2002 Act when making the placement order (see paragraph 120 above). While the Court does not rule out that such a complaint could give rise to the question whether the measure was “in accordance with the law” within the meaning of Article 8 § 2, it observes that the applicant in the present case did not argue that any issue as to the lawfulness, in Article 8 terms, of the measure arose. In the absence of any submissions on the matter the Court is therefore of the view that this complaint is more appropriately considered in the context of the necessity and proportionality of the measure. The Court therefore accepts that the actions of the domestic authorities were “in accordance with the law”.",
"132. It is further not disputed that the measures pursued the legitimate aim of protecting the rights of others, namely those of K. The Court must therefore examine whether the domestic authorities’ actions were necessary in a democratic society.",
"a. General principles",
"133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention (see K and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D. and O.D. v. the United Kingdom, no. 28680/06, § 82, 16 March 2010; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010; and R. and H. v. the United Kingdom, no. 35348/06, §§ 75 and 81, 31 May 2011).",
"134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).",
"135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.",
"136. The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts are faced with a task that is extremely difficult. Further, the national authorities have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K and T., cited above, § 154; A.D. and O.D., cited above, § 83; Neulinger and Shuruk, cited above, § 138; and R. and H., cited above, § 81). However, it must be borne in mind that the decisions taken by the courts in this field are often irreversible, particularly in a case such as the present one where a placement order has been made. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; X v. Croatia, no. 11223/04, § 47, 17 July 2008; and R. and H., cited above, § 76).",
"137. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening to his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit (see K and T., cited above, § 155). The Court has indicated that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life, as such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K and T., cited above, § 155; R.K. and A.K., cited above, § 34; and A.D. and O.D., cited above, § 83; R. and H., cited above, § 81). The making of a placement order in respect of a child must be subject to the closest scrutiny.",
"138. As to the decision-making process, what has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see Neulinger and Shuruk, cited above, § 139; and R. and H., cited above, § 75). Thus it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.",
"139. The need to involve the parents fully in the decision-making process is all the greater where the proceedings may culminate in a child being taken from his biological parents and placed for adoption ( R. and H., cited above, § 76).",
"b. Application of the general principles to the facts of the case",
"140. The applicant’s complaint comprises two aspects. First, she complains about the refusal of the domestic courts to order an assessment of her as a sole carer, which she contends constituted a disproportionate interference with her Article 8 rights. Second, she complains that the reasons given for making a placement order were inadequate.",
"141. The Court observes at the outset that the decision as to whether K. should be raised by the applicant or by another family was effectively taken at the stage at which the placement order was made. The possibility of revoking the placement order and the prospect of a future evaluation by reference to the criteria in section 1 of the 2002 Act (see paragraph 103 above) in the context of an application for an adoption order under section 46 of the 2002 Act (see paragraph 105 above) cannot be relied upon as providing any kind of safeguard in the proceedings leading to the making of placement order in respect of K. In particular, once K. was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant’s care (see W. v. the United Kingdom, 8 July 1987, § 62, Series A no. 121; and K and T., cited above, § 155).",
"142. It is not disputed that the threshold criteria enabling the court to make a placement order – namely that there were reasonable grounds for believing that K. was likely to suffer significant harm because of inadequate care – were met. The immediate question for the domestic courts in the applicant’s case was whether to make such an order or whether to order a further assessment which could result in K. being returned to the applicant’s care.",
"143. The Court’s starting point is the judgment of the Family Proceedings Court. Although that court did not reach any conclusion as to whether a placement order ought to be made, in its judgment it explained that it accepted the welfare aspects of the Guardian’s report, before indicating that it had reached a different conclusion as a result of the applicant’s late position statement (see paragraph 69 above). It accordingly ordered a further assessment.",
"144. The County Court subsequently overturned the order of the Family Proceedings Court and made a placement order. The applicant does not dispute that she was advised that the local authority and the guardian were seeking a placement order from the County Court. It is therefore for this Court to assess whether the County Court’s reasons were relevant and sufficient, by reference to the general principles set out above.",
"145. The Court observes that the County Court judge began by emphasising that any decision to order a further assessment had to be in the best interests of the child (see paragraph 80 above). In identifying K.’s best interests, the judge noted that any further assessment would entail a degree of disruption to K.’s foster placement and a risk of emotional harm should the assessment break down. He considered that the duration of the assessment would be too short to provide sufficient guarantees that the separation of the applicant and P.C. would last (see paragraph 80 above). He reached the conclusion that “the evidence about the mother was clear” and that an assessment of the applicant would never be able to provide evidence that would be sufficient to justify the refusal of a care order, given her shortcomings and the real risk that she would resume her relationship with P.C. Thus the only effect of the decision to order an assessment was to delay and jeopardise the prospect of finding a long-term placement for K (see paragraph 81 above).",
"146. The judge was clearly of the view that the resumption of the applicant’s relationship with P.C. entailed a risk to K.’s well-being. His conclusion that such resumption was likely and his negative view as to the consequences for K. do not appear to be unreasonable having regard to the history of the case and the various reports prepared in the context of the proceedings, which made frequent reference to P.C.’s controlling nature and the difficulties encountered by the applicant in asserting herself (see paragraphs 29, 30, 39, 44 and 58 above). While, as the Court has explained above, it is in a child’s best interests that his family ties be maintained where possible, it is clear that in K.’s case this was outweighed by the need to ensure his development in a safe and secure environment (see paragraph 134 above). In this regard the Court observes that attempts were made to rebuild the family through the provision of support for alcohol abuse and opportunities for parenting assistance (see paragraphs 27 and 33 above). When the applicant indicated that she had separated from P.C., she was given details of domestic violence support that she could access (see paragraph 26 above). It appears that she did not access such support and ultimately reconciled with P.C. on that occasion. The reports prepared by the social worker, the guardian and D.I. highlighted the difficulties encountered in trying to assist the family to address concerns as a result of the parents’ failure to engage with the authorities and, in particular, P.C.’s uncooperative stance (see paragraphs 36-37, 41, 44-45, 47 and 58 above).",
"147. The Court acknowledges that, in refusing the further assessment and instead making a placement order, the County Court judge did not make express reference to the relevant considerations arising under Article 8 of the Convention (see paragraph 135 above) or to the various factors set out in section 1 of the 1989 Act and section 1 of the 2002 Acts (see paragraph 82 above). However, as outlined above, it is clear that he directed his mind, as required under Article 8 of the Convention, to K.’s best interests and that, in reviewing the applicant’s application for a further assessment, considered whether in the circumstances rehabilitation of K. to his biological family was possible. He concluded that it was not. In reaching that decision he had regard to various relevant factors and made detailed reference to the reports and oral evidence of the social worker, the guardian (whose report was based on full consideration of the welfare checklist) and D.I., all of whom identified the various issues at stake (see paragraphs 78-81 above). Further, the Court notes that the applicant was invited by the judge to bring to his notice anything that required his further attention in court (see paragraph 82 above), but that she failed to seek any clarification from him as to the reasons for his decision.",
"148. It is also of relevance that the applicant was able to seek a further review of her case by the Court of Appeal. In this regard, the Court observes that the Court of Appeal has recognised the need for a careful balancing act to be conducted by reference to section 1 of both the 1989 and 2002 Acts and to Article 8 of the Convention (see paragraphs 109-114 above). It was satisfied in the applicant’s case that the judge had reached a conclusion which was fully merited on the evidence.",
"149. In the circumstances of the case, the Court considers that the decision to make a placement order did not exceed the margin of appreciation afforded to the respondent State and the reasons for the decision, taking into account the concerns expressed by the judge regarding the applicant’s ability to separate from P.C., were relevant and sufficient. It is further satisfied that the applicant was given every opportunity to present her case and was fully involved in the decision-making process.",
"150. There has accordingly been no violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"151. In her written submissions to the Court dated 18 May 2011, the applicant alleged for the first time that there had been a violation of Article 13 as a result of the decision of the Court of Appeal.",
"152. The Court observes that the judgment of the Court of Appeal was handed down on 24 November 2009. The applicant’s complaint under Article 13 was therefore lodged outside the six-month period stipulated in Article 35 § 1 of the Convention. In any event the Court reiterates that the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K and T., cited above, §§ 198-199; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 289, 21 January 2011). There is no indication that Court of Appeal would not, in general, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The complaint must accordingly be declared inadmissible pursuant to Article 35 §§ 3 and 4."
] |
99 | A.K. and L. v. Croatia | 8 January 2013 | This case concerned a mother with mild mental disability who had been divested of her parental rights. Her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, by not informing the first applicant about the adoption proceedings, the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, both as regards the confinement of the applicant as well as the placement in care of her minor children. It pointed out in particular that in Romania there had been a number of precedents of improper confinement of individuals with psychiatric disorders, in spite of recent legislative changes in favour of patients’ rights. It concluded that, judging from the applicant’s medical history, the authorities had not followed the applicable procedure when deciding on her confinement. Furthermore, the absence of special protection, especially through the official appointment of a lawyer or designation of a guardian, had had the effect of depriving the applicant of her right to take part in the decision-making process concerning the placement of her children in residential care. | Parental Rights | Taking of children into care | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.",
"5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.",
"6. The first applicant consented to having L. placed in a foster family.",
"A. Proceedings related to divesting the first applicant of her parental rights",
"7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.",
"8. The first applicant was unrepresented in those proceedings.",
"9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.",
"The relevant part of the decision reads:",
"“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.",
"At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...",
"The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.",
"The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.",
"The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...",
"... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.",
"In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.",
"...”",
"This decision was served on the first applicant on 17 May 2010.",
"10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.",
"B. Proceedings related to restoring the first applicant’s parental rights",
"11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.",
"12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.",
"13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.",
"14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.",
"15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.",
"16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted."
] | [
"II. RELEVANT DOMESTIC AND COMPARATIVE LAW",
"A. Domestic law",
"17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:",
"Section 114",
"“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.",
"(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:",
"1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;",
"2. has sexually abused a child;",
"3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;",
"4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;",
"5. has incited a child to socially unacceptable behaviour;",
"6. has abandoned a child;",
"7. has not provided for a child with whom he or she lives for a period exceeding three months;",
"8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;",
"9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;",
"10. has abused the rights of a child in another manner.",
"(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.",
"(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.",
"(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.",
"(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.",
"...”",
"Section 119",
"“(1) Once adoption has been established parental custody [of the adopted child] shall cease.",
"...”",
"Section 125",
"“(1) Adoption may be established if it is in the interest of the child.",
"...”",
"Section 129",
"“(1) Adoption shall require the consent of both parents, except where otherwise provided.",
"...”",
"Section 130",
"“Adoption shall not require the consent of a parent who is ...",
"1. divested of parental rights",
"...”",
"Section 135",
"“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”",
"Section 138",
"...",
"“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”",
"Section 139",
"“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”",
"Section 144",
"“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.",
"...”",
"Section 267",
"“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”",
"B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States",
"18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).",
"19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.",
"20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.",
"21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.",
"22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.",
"23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.",
"24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.",
"25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.",
"26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.",
"27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.",
"28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.",
"29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.",
"30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.",
"31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.",
"32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.",
"33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.",
"C. International law",
"34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”",
"“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”",
"Article 21",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”",
"35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:",
"Principle 15:",
"“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:",
" the consent of the mother",
" the consent of the father.",
"States may also require the consent of the child considered by the internal law as having sufficient understanding.",
"2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.",
"3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”",
"36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:",
"Article 5 – Consents to an adoption",
"“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:",
"a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;",
"b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;",
"c the consent of the spouse or registered partner of the adopter.",
"2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.",
"3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.",
"4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.",
"5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.",
"6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.",
"She relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. The parties’ arguments",
"38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.",
"39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.",
"40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.",
"41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.",
"42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.",
"43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.",
"44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.",
"45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.",
"2. The Court’s assessment",
"(a) Standing of the first applicant to act on behalf of L.",
"46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).",
"47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.",
"48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).",
"49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.",
"50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.",
"(b) Applicability of Article 8 of the Convention to the present case",
"51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).",
"52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.",
"(c) Exhaustion of domestic remedies and compliance with the six-month rule",
"53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.",
"(d) Conclusion",
"54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.",
"56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.",
"57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.",
"2. The Court’s assessment",
"(a) Whether there was an interference",
"58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).",
"59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.",
"60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).",
"(b) Legality of the interference and legitimate aim",
"61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.",
"(c) Necessity in a democratic society",
"62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).",
"63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).",
"64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).",
"65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.",
"66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.",
"67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.",
"68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.",
"69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.",
"70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.",
"71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.",
"72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.",
"73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.",
"74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.",
"75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.",
"76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.",
"77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.",
"78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.",
"79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.",
"80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.",
"82. The Government contested these arguments.",
"83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.",
"84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION",
"85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.",
"87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.",
"88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.",
"89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.",
"B. Merits",
"90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.",
"91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.",
"92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).",
"93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.",
"94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"95. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.",
"97. The Government deemed the sum claimed excessive.",
"98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.",
"B. Costs and expenses",
"99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.",
"100. The Government deemed the sum claimed excessive.",
"101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.",
"C. Default interest",
"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
100 | A.K. and L. v. Croatia | 8 January 2013 | The first applicant is the mother of the second applicant, who was born in 2008. Soon after his birth, the second applicant was placed, with his mother’s consent, in a foster family in another town, on the grounds that his mother had no income and lived in a dilapidated property without heating. The first applicant complained in particular that she had not been represented in subsequent court proceedings which had resulted in a decision divesting her of her parental rights, on the ground that she had a mild mental disability, and that her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Observing in particular that, despite the legal requirement and the authorities’ findings that the first applicant suffered from a mild mental disability, she had not been represented by a lawyer in the proceedings divesting her of parental rights, and that, by not informing her about the adoption proceedings the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption, the Court found that the first applicant had thus been prevented from enjoying her right guaranteed by domestic law and had not been sufficiently involved in the decision-making process. Kocherov and Sergeyeva v. Russia | Persons with disabilities and the European Convention on Human Rights | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008.",
"5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating.",
"6. The first applicant consented to having L. placed in a foster family.",
"A. Proceedings related to divesting the first applicant of her parental rights",
"7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L.",
"8. The first applicant was unrepresented in those proceedings.",
"9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L.",
"The relevant part of the decision reads:",
"“On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted.",
"At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ...",
"The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother.",
"The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist.",
"The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ...",
"... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother.",
"In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment.",
"...”",
"This decision was served on the first applicant on 17 May 2010.",
"10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired.",
"B. Proceedings related to restoring the first applicant’s parental rights",
"11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed.",
"12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak.",
"13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L.",
"14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L.",
"15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential.",
"16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted."
] | [
"II. RELEVANT DOMESTIC AND COMPARATIVE LAW",
"A. Domestic law",
"17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:",
"Section 114",
"“(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights.",
"(2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she:",
"1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family;",
"2. has sexually abused a child;",
"3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age;",
"4. has allowed a child to consume alcoholic drinks, drugs or other narcotics;",
"5. has incited a child to socially unacceptable behaviour;",
"6. has abandoned a child;",
"7. has not provided for a child with whom he or she lives for a period exceeding three months;",
"8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live;",
"9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing;",
"10. has abused the rights of a child in another manner.",
"(3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion.",
"(4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist.",
"(5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre.",
"(6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned.",
"...”",
"Section 119",
"“(1) Once adoption has been established parental custody [of the adopted child] shall cease.",
"...”",
"Section 125",
"“(1) Adoption may be established if it is in the interest of the child.",
"...”",
"Section 129",
"“(1) Adoption shall require the consent of both parents, except where otherwise provided.",
"...”",
"Section 130",
"“Adoption shall not require the consent of a parent who is ...",
"1. divested of parental rights",
"...”",
"Section 135",
"“(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...”",
"Section 138",
"...",
"“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”",
"Section 139",
"“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”",
"Section 144",
"“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.",
"...”",
"Section 267",
"“The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.”",
"B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States",
"18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales).",
"19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings.",
"20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance.",
"21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such.",
"22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent.",
"23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child.",
"24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with.",
"25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents.",
"26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption.",
"27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings.",
"28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court.",
"29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel.",
"30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court.",
"31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties.",
"32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings.",
"33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard.",
"C. International law",
"34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows:",
"Article 9",
"“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”",
"“2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”",
"Article 21",
"“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:",
"(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...”",
"35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows:",
"Principle 15:",
"“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:",
" the consent of the mother",
" the consent of the father.",
"States may also require the consent of the child considered by the internal law as having sufficient understanding.",
"2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.",
"3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”",
"36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows:",
"Article 5 – Consents to an adoption",
"“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:",
"a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;",
"b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;",
"c the consent of the spouse or registered partner of the adopter.",
"2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.",
"3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.",
"4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.",
"5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.",
"6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings.",
"She relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"1. The parties’ arguments",
"38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010.",
"39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons.",
"40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful.",
"41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010.",
"42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests.",
"43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life.",
"44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies.",
"45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011.",
"2. The Court’s assessment",
"(a) Standing of the first applicant to act on behalf of L.",
"46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142).",
"47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided.",
"48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012).",
"49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life.",
"50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed.",
"(b) Applicability of Article 8 of the Convention to the present case",
"51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130).",
"52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case.",
"(c) Exhaustion of domestic remedies and compliance with the six-month rule",
"53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case.",
"(d) Conclusion",
"54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives.",
"56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished.",
"57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted.",
"2. The Court’s assessment",
"(a) Whether there was an interference",
"58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008).",
"59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption.",
"60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45).",
"(b) Legality of the interference and legitimate aim",
"61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”.",
"(c) Necessity in a democratic society",
"62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011).",
"63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48).",
"64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49).",
"65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above.",
"66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them.",
"67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole.",
"68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility.",
"69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not.",
"70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties.",
"71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights.",
"72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances.",
"73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights.",
"74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act.",
"75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother.",
"76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted.",
"77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings.",
"78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act.",
"79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process.",
"80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights.",
"82. The Government contested these arguments.",
"83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.",
"84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION",
"85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Admissibility",
"86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act.",
"87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy.",
"88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act.",
"89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible.",
"B. Merits",
"90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention.",
"91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue.",
"92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).",
"93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together.",
"94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"95. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.",
"97. The Government deemed the sum claimed excessive.",
"98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.",
"B. Costs and expenses",
"99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court.",
"100. The Government deemed the sum claimed excessive.",
"101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant.",
"C. Default interest",
"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |